Civil Procedure Code & Limitation Law eBook & Lecture Notes PDF Download (Studynama.com - India's Biggest Website for Law Study Material Downloads)

CONTENTS UNIT- I - Preliminary - Definitions - Suits of Civil Nature - Jurisdiction of the Court - Suit of Civil Nature - Res Sub Judice and Res-Judicata - Foreign Judgment - Place of Suing Important Questions References Refe rences UNIT- II - Par ties ties to Suit - Frame Frame of Suit - Pleading Pleading - Plaint - Written Statement - Set-off - Counter Claim - Suits Suits by Indigent Persons - Suits Suits in Particular Cases - Suits by or Against the Government or the Public Officers in Their Of ficial Of ficial Capacity - Inter Pleader Suit Important Impo rtant Questions References Refe rences

UNIT- III - Summons and Discovery, Issue of Summons - Summoning and Attendance of Witness - Appearance of Parties and Effect of Their Non-Appearance - Execution of Decrees Important Questions References

UNIT- IV - Incidental Proceedings - Commission - Letter of Request - Supplemental Proceedings - Arrest before Judgment - Attachment before Judgment - Temporary Temporary Injunction I njunction - Receiver - Appeals - Reference - Review - Revision - Restitution Restitution - Caveat Caveat - Inherent Inherent Powers of Court Important Impo rtant Questions References Refe rences UNIT- V - Indian Indian Limitation Act, 1963 - Limitation Limitation of Suits, Appeals and Applications - Effect Effect of Sufficient Cause for not Preferring Appeals or Making Applications within the Per iod iod of Limitation - Legal Legal Disability - Continuous Continuous Running of Time - Computation Computation of Period of Limitation and Exclusion of Time in Legal Proceed ing - Effect Effect of “Death”, “Fraud”, “Mistake” or “Acknowledgment in Writing” - Acquisition Acquisition of Ownership by Possession Important Impo rtant Questions Suggested Readings References

UNIT - I

S U K M A K PRELIMINARY

Introduction: The 'Code of Civil Procedure' is a procedure law, i.e., an adjective law. The Code neither Introduction: The creates nor takes away any right. It only helps in proving or implementing the 'Substantive Law'. The Code contains 158 Sections and 51 Orders. The object of the Code is to consolidate (all the laws relating to the procedure to be adopted by the Civil Courts) and amend the law relating to the procedure of Courts of Civil Procedure. The procedural laws are always retrospective in operation unless there are good reasons to the contrary. The reason is that no one can have a vested right in forms of procedure. The Code of Civil Procedure is not is not retrospective in operation.- The Code is not exhaustive. Extent, Applicability Applicability and Commencement: It Commencement: It extends to the whole of India, except the State of State of Jammu & Kashmir, and the and the State of Nagaland and Tribal Areas. It also extends to the Amindivi Islan ds, the East Godavari and and Vishakhapatnam Agencies in the State of Arunachal Pradesh and the Union Territories of Lakshadweep. Lakshadwee p. The provisions of the Code have also been extended to the Schedule Areas Areas by the amendment Act Act of 1976. This Act is effective from 01 day of January 1909. Composition Compositio n of Code:

CODE OF CIVIL PROCEDURE

Body of Code (Substantive Part which contains Section 158 providing procedure)

Schedule-I Procedural Part which contains 51 Orders and Rules

(Contains Model Forms of Pleadings, Processes, Decrees, Appeals, Exection Procedure etc.

The body of the Code containing sections is fundamental and cannot be amended except by the Legislature while the First Schedule of the Code, containing Orders and Rules, can be amended by the High Courts. The sections and Rules must be read together and harmoniously construed, but if rules are inconsistent with the sections, the latter will prevail. DEFINITIONS

Interpretation Clause: Interpretation Clause: Some Some of the important words as they have been defined U/s 2 of the Code are as under: Section -2: In this Act, unless there is anything repugnant in the subject or contextSection–2 (1) “Code” includes rules.

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Section-2(2) "Decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either Preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section-144, but shall not include:a)

any an y adj adjud udic icat atio ion n fro from m whi which ch an app appea eall lie lies s as an ap appea peall fro from m an an orde orderr, or or

b)

any order for for dismissal fo for de default.

S U K M A K Explanation: A decree is preliminary where further proceedings have to be taken before the suit can be Explanation: A completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. Decree [Section-2 (2)] and Order [Section-2 (14)]

Essential Elements of a decree: The decision of a Court can be termed as a "decree" upon the satisfaction of the following elements:I.

There must be an adjudication i.

II.

Such adjudication must have been given in a suit ii.

III.

It must have determined the rights of the parties iii with regard to all or any of the matter in controversy in the suit.

IV.. IV

Such determination must be of a conclusive nature iv iv,, and

V.

There must be formal expression v of such adjudication.

a) An Adjudication: dication: Adjudication Adjudication means "the judicial determination of the matter in dispute". If dispute". If there is no judicial determination of any matter in dispute or such judicial determination is not by a Co Court, urt, it is not a decree; e.g., e.g., an order of dismissal of a suit in default for non appearance of o f parties, or of dismissal dismissal of an appeal for for want of prosecution are not decrees d ecrees because they do not judicially deal with the matter in dispute.

b) In a Suit: Suit: Suit means a Civil proceeding instituted by the presentation of a Plaint. Thus, every Thus, every suit is instituted by instituted by the presentation of Plaint. Where there is no Civil suit, there is no decree; e.g., e.g., Rejection of an application application for leave to sue in forma pauper p auper is is not a decree, because there cannot be a plaint in such case until the application is granted. Exception: But where in an enactment specific provisions have been made to treat the applications as Exception: But suits, then they are statutory suits and the decision given thereunder are, therefore, decrees; e.g., proceeding under the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc.

c) Rights Rights of the the parti parties es:: The adjudication must have determined the rights i.e., the substantive rights and not merely procedural rights of the parties with regard to all or any of the matter in controversy in the suit. "Rights of the parties" under parties" under section 2(2). The rights of the parties inter se (between the parties) relating to status, limitation, jurisdictions, frame of

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suit. accounts, etc. "Rights in matters in procedure" are not included in section 2(2); e.g., An order of dismissal dismissal for non-prosecution of an application for execution, execution, or refusing leave leave to sue in forma pauperis, or a mere right to sue, are not decrees as they do not determine the rights of the parties. The determination must be final and conclusive as regards the Court, d) Concl Conclusi usive ve Dete Determ rmina inatio tion: n: The which passes it.

S U K M A K An interlocutory order which does not finally decide the rights of the parties is not a decree; e.g., An order refusing an adjournment, or of striking out defence of a tenant under the relevant Rent Act, or an order passed by the appellate Court under Order 41, rule 23 to decide some issues and remitting other issues to the trial Court for determination are not decrees because they do not decide the rights of the parties conclusively conclusively.. But, An order dismissing dismissing an appeal summarily under Order-41, or holding it to be not maintainable, maintainable, or dismissal of dismissal of a suit for want of evidence or proof are decrees, because they conclusively conclusivel y decide the rights of the the parties to the suit.

e) Formal Expression: Expression: There There must be a formal expression of such adjudication. The formal formal expression must be deliberate deliberate and given in the manner provided by law. Classes/ Types of Decrees Decree

Prelimi nary nary Decree

Final Decree

Partly Preliminary & Partly Final Decree Decree

I. Prel Prelim imin ina ary Decree: Where Decree: Where an adjudication decides the rights of the parties with regard to to all or any of the matters in matters in controversy in the suit, but does not completely dispose of the suit, it is a Preliminary Decree. A preliminary decree is only a stage in working out the rights of the parties, which are to be finally adjudicated by a final decree. Provisions in the Code for passing of the Preliminary Prelimin ary Decrees: a. Suits for possession and mesne profit;

Order 20 Rule 12

b. Administrative Suits;

Order 20 Rule 13

c. Suits for ,Pre-emption;

Order 20 Rule 14

d. Suits for dissolution of Partnership;

Order 20 Rule 15

e. Su Suit its s for for ac acc cou ount nts s bet betw wee een n pri princ ncip ipal al an and d age agent nt;;

Ord rder er 20 Rul ule e 16 16

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f. Suits for partition and separate possession; g. Suits for foreclosure of a mortgage;

Order 20 Rule 18 Order 34 Rules 2-3

Besides above the Court has a power to pass a preliminary decree in cases not expressly provided in the Code. In Phool Chand Vs Gopal Lal A.I.R. 1967, S.C. 1470, the Apex Court has decided that "C.P.C. "C.P.C. does not prohibits passing of more that one preliminary decree, if circumstances justify the same and it may be necessary to do so".

S U K M A K II.. Fi II Fina nall Decr Decree ee : A decree may be final in two ways-

a. When no appeal appeal is filled filled against against the decree decree within within the prescribed prescribed period period or the the matter has has been decided by the decree of the highest Court; b. When the decree decree so far far as regards regards the Court Court passing passing it, complet completely ely dispose dispose of the suit. suit.

"A final final decree is one which completely disposes of the suit and finally settles all the questions the questions in contr oversy oversy between the patties and nothing further remains to be decided thereafter. Underr the special circumstances, more than one final decrees can be passed in the same Unde same suit, e.g. Wher e two or more causes of actions are joined together, there can be more than one final final decree.

III.Partly Preliminary Pre liminary and Partly Final Decree: For example, in a suit for possession of immoveable property with with mesnes profits, the Courta)

decrees possession of the property, and

b)

directs an enquiry into the mesne profits.

The former part part of the decree is finally while the later part is only preliminary because the Final Final Decree for mesne profits profits can be drawn only after enquiry and ascertainment of the due amount. In such a case, even though the decree decree is only one, it is Partly Preliminary and Partly Final. Order: Section Section -2 (14)

An order means the formal expression of any decision of a Civil Court which is not a decree. The adjudication of a court of law may be either Decree or Order; and cannot be both. Difference Between Decree and Order

Basic of Distinction

1. Or Orig igin in

Decree

Order

A decree can only be passed in An order may originate from a a suit which commenced by suit, by presentation of a plaint presentation of plaint. or may arise from a proceeding commenced by a petition or an application.

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2. Determination of Rights

A decree is an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy.

3. Type of Decree

Decree may be Preliminary or There cannot be a Preliminary Party Preliminary or Party Final. Order.

A decree decree may be Preliminary or Partly Preliminary or Partly Final.

S U K M A K 4. No. of Order/ Decree

In every suit, there can be only one decree, except in certain suits, where two decrees, one Preliminary and one Final are passed.

In case of suit or proceeding number of order may be passed.

Every decree is appealable unless otherwise expressly provided.

Every order is not appealable. Only those orders are appealable as specified specified in the Code i.e. Section 104 & 104 & Order 43 Rule 1.

5. Appeal From

6. Second Appeal Second Appeal

A second appeal lies to the High No Second appeal lies lies in case Court on Certain grounds from of appealable orders orders [Sec. the decree passed in First 104(2)]. Appeal (Sec. 100). Thus there may be two appeals.

2(3) "Decree-Holder" "Decree-Holder" means means any person in whose favour a decree has been passed or an order order capable of execution has been made. 2(5) "Foreign "Foreign Court" means Court" means a Court situate outside India and not established or continued by the by the authority of the Central Central Government; 2(6) "Foreign "Foreign Judgment" means Judgment" means the judgment of a foreign Court; 2(8) "Judge" means "Judge" means the presiding officer of a Civil Court;

2(9) "Judgment" "Judgment" means means the statement given by the Judge on the grounds of a decree or order .

2(10) "Judgment-D "Judgment-Debtor" ebtor" means any person against whom a decree has been passed or an order capable of execution has been made.

2(11) "Legal Representative" means Representative" means a person who in law represents the estate of a deceased person, and includes any person who intermediates with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

2(12) "Mesne Profits" of 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;

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The owner of property or any other person who is entitled to have possession of property has a right to the possession of his property and when such person is deprived of such a right by any other person, person, then he is entitled not only to receive back possession of that property but also to damages for wrongful possession from that person. "Mesne Profits" of property means those profits which the person in wrongful possession of such property actually received therefrom, together with interest on such profits, but shall not include profits due to 1 improvements made by the person in wrongful possession.

S U K M A K The mesne profits are compensation, which is penal in nature.

A decree for mesne profits is to compensate the person who has been kept out of possession even though he was entitled to possession thereof. Against whom Mesne profits profit s can be claimed?

The mesne profits profits can be claimed with regard to immoveable property p roperty only. only. Generally, person in wrongful 2 possession and and enjoyment of immoveable immoveable property is liable for mesne profits. profits.

A decree for mesne profit can be passed against a tresspasser or a person against whom a decree for possession is is passed, or against a mortgagee in possession of property even after a decree for for redemption is passed or against against a tenant holding over at will after a notice to quit has been served him. To ascertain ascerta in and provide mesne profits it is not what the plaintiff has lost by being out of possession possession but what the defendant defendant gained or might reasonably and with ordinary prudence have gained by such such wrongful possession. Since interest is an integral part of mesne profits, it has to be allowed in the computation computation of 3 mesne profits profits itself. 2(14) "order " means the formal expression of any decision of a Civil Court which is not a decree; decree; 2(16) "prescribed" "prescribed" means means prescribed by rules;

2(18) "rules" means "rules" means rules and forms contained .in the First Schedule or made under section 122 122 or section 125. SUITS OF CIVIL NATURE

Meaning: Jurisdiction means power of a Court to hear and decide a case. Jurisdiction of a Court means the Meaning: Jurisdiction power or the extent of the authority of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it. The Jurisdiction of a Court means the extent of the authority of a Court to 4 administer justice prescribed with reference to the subject matter, matter, pecuniary value or local limits. Consent of Parties: It Parties: It is well settled principle of law that consent cannot confer nor take away jurisdiction of a Court. If the Court has no inherent jurisdiction, neither acquiescence nor waiver nor estoppels can create its But if two or more Courts have jurisdiction to try the suit, the parties may agree among them that the suit should be brought in one of those Courts and not in other, since there is no inherent lack of jurisdiction in the Court.

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The defect of jurisdiction cannot be cured by consent of parties and the judgment or order passed by a Court, however precisely certain and technically correct, is null and void6 and its invalidity could be setup whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even 7 in collateral collateral proceeding proceedings. s. “A defect of jurisdiction strikes at the very authority of the Court to pass any decree, and such a defect 8 cannot be cured even by consent of parties."

S U K M A K Lack of and illegal exercise of jurisdiction: "A Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if 9 that course is not taken, the decision, however wrong, wrong, cannot be disturbed.” A decree passed in the the inherent lack of jurisdiction, is a nullity, and that nullity can be set up in any collateral proceedings. But in case, the Court has jurisdiction but it is irregularly exercised, the error can e remedied with the help of procedures prescribed by law for setting that error righ t i.e. in appeal or revision and when there is no such remedy or not availed of, the decision is final. Where the party aggrieved does not take appropriate steps to have that err or or corrected, the erroneous decree will hold good and will not be open to challenge on challenge on the basis 10 of being a null nullity.

Decision as to as to jurisdicti jurisdiction: on: Whenever Whenever the jurisdiction of the Court is challenged, the Court has inherent 11 jurisdiction to to decide decide the said question. question. The allegations allegations made made in plaint decide decide the forum ande ande jurisdiction 12 does not depend depend upon the defence defence taken taken by the defendants defendants in the Written Written Stateme Statement. nt. Kinds of jurisdiction: jurisdiction: Jurisdiction Jurisdiction of a Court may be classified into the following four categoriescategoriesi.

Territorial jurisdiction or Local jurisdiction: Each Court has vested power to exercise jurisdiction jurisd iction within its own territorial or local limits beyond which it cannot go.

ii. Pecuniary jurisdiction: The jurisdiction: The term 'Pecuniary jurisdiction' connotes the value of the subject subject matter of the suit. the suit. The High Courts and District Courts have no pecuniary limitation but the other Courts have no such unlimited pecuniary jurisdiction. The Court of Civil Judge (Jr. Div.) Div.) in the State of Uttar Pradesh Prad esh can entertain the suits where the value of the subject matter does not exceedRs. exceed Rs. 25,000/-. iii ii.. Jur uris isdiction diction as to subject matter of dispute: The different Courts have power to decide decide different kinds of kinds of suit, like the Family Courts have jurisdiction to decide the suits/disputes re lating to the matrimonial matters.

iv.. Original iv Original and appell appellate ate jurisdic jurisdiction: tion: In In its original jurisdiction, a Court entertains and adjudicates suits while in its appellate jurisdiction a Court decides appeals.

Suit of Civil Nature

Introduction: A litigant having a grievance of a civil nat.ure has a right to institute a civil suit in a civil Court Introduction: A competent to hear and decide the matter unless its cognizance is either expressly or impliedly barred by 13 14 any statute. It is a fundamental principle of English law that whenever there is a right, there is a remedy. remedy. The word "civil" relates to the community or to the policy and government of the citizens and subjects of a State. The word "civil" indicates a state of society reduced to order and regular government; as against

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"criminal" it pertains to private rights and remedies of men and also used in contradistinction to military, ecclesiastical, natural, or foreign. Generally, civil action is an action wherein an issue is presented for trial, formed by averments of complaint Generally, and denials of answer; or replication to new matter; or an adversary proceeding for declaration, enforcement, or protection of a right or redressal or prevention of a wrong. It is a personal action which is instituted to compel payment, or doing of some other thing which is purely civil.

S U K M A K Civil proceeding includes, at least, all proceedings affecting civil rights which are not criminal. It is a proceeding in which some rights to property or other civil rights are involved, no matter whether the jurisdiction of the the court is ordinary ordinary,, special special or extraordinary extraordinary.. If If the the proceeding is in aid of establishing a civil civil right or for disputing one, it would be a civil proceeding. Meaning: According to S.9 a Civil Court has jurisdiction to try a suit, when the following two conditions are Meaning: According satisfied: i. the suit is of a Civil nature, and ii. the cognizance of such a suit is neither expressly nor impliedly barred.

The word "civil" "civil" has not been defined in the Code. The word "civil" means "pertaining to the private rights 15 and remedies remedies of a citizen as distinguished from Criminal, political, etc." The expression "Ci "Civil vil Nature" is 16 wider than the the expression expression "Civil "Civil Proceedings". Proceedings". Thus a suit is of a civil nature if the private private question question therein relates to the determination the determination of a civil right and enforcement thereof. It is n ot the status of parties parties to the “suit, but the subject subject matter of it which determines whether or not the suit is one of a civil nature. Theexpression The expression is "suit of a civil nature civil nature will cover private rights and obligations of a citizen. Political and religious questions questions are not covered by by that expression." Explanation - 1 of Explanation1 of 8.9 says that a suit in which the right to property or to an o ffice is contested is contested is a suit of a Civil Nature, Nature, notwithstanding that such right may depend entirely on the decision of questions questions as to religious rites or rites or ceremonies. Illustrations of Illustrations of suits of a civil nature: The nature: The followings are the illustrations of the suits of a 'Civil Nature''Civil Nature'-

Suits relating to relating to right to property, right to worship, taking out of religious procession, right right to share in offerings, suits suits for damages for civil wrong, for breach of contract, for a specific relief, for restitution of conjugal rights, for dissolution of marriage, for rent. for or on accounts; etc., etc. But the following are not suits of a civil nature:-

Suits involving principally caste questions, purely religious rights or ceremonies, for upholding mere dignity or honour or for recovery of voluntarily payments or offerings. Cognizance not barred: Court barred: Court to try all civil suits unless barred-

'The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."17 The cognizance of a suit may be barred either expressly or impliedly.

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a. Suits expressly barred: A suit is said to be "expressly barred" when it is barred by any enactment for the time being in force18 by a competent Legislature, while keeping itself within the field of legislation and without contravening any provision of the constitution. Every presumption should be made in favour of the jurisdiction of the Civil Court and the provisions of the exclusion of the jurisdiction of a 19 Court must be strictly strictly construed. It is well settled settled that a civil court court has inherent power to decide decide its own 20 jurisdiction. The matters falling within the exclusive jurisdiction of the Revenue Courts or under the Criminal Procedure Code or the matters dealt with by special tribunals, under the relevant statutes; eg., Bar Council, Medical Council, University, Club etc., are expressly barred from the cognizance of a civil court.

S U K M A K b. Suits impliedly barred: barred: A A suit is said to be "impliedly barred" when it is barred by general principle of law. Where an Act creates an obligation and enforces the performance in a specified manner, that performance cannot be enforced in any other manner, e.g., certain suits of a civil nature are barred from 21 the cognizance of a Civil Court on the grounds of public policy policy.. Thus, no suit shall lie for recovery recovery of costs incurred incurred in Criminal prosecution or for enforcement of a right upon a contract hit bySection by Section 23 of Indian Contract Contract Act, Act, 1872 or against any Judge for acts done in the course of his duties. A Civil court has no jurisdiction jurisdiction to adjudicate upon disputes of political nature. RES SUB JUDICE JU DICE AND RES-JUDICAT RES-JUDICATA A Res Sub Judice Judice (Stay of Suit) Section-10: Provides

No court shall shall proceed with the trial' of any suit in which the matter in issue is also directly and substantially in issue in a previously previously instituted suit between the same parties or between parties under whom whom they or any of them claim, claim, litigating under the same title, where such suit is pending in the same or any other court in India having having jurisdiction to grant the relief claimed, or in any other Court beyond the limits limits of India established or or constituted by the Central Government and having like jurisdiction or before he Supreme Court.” Explanation : The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a Explanation: suit founded on the same cause of action.

Object: The object of S.1 0 is to prevent Courts of concurrent jurisdiction from simultaneously simultaneously trying two 22 parallel suits between the same parties in respect of the same matter matter in issue. The section intends to prevent a person from multiplicity of proceedings and to avoid a conflict of decisions. Conditions: This Conditions: This section will apply where the following conditions are satisfied:

1) Prese Presence nce of Two Two Sui Suits: ts: Where there are two suits, one previously instituted and the other subsequently instituted. 2) Matt Matter er in in Issu Issue: e: The The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. 3) Sa Same me Pa Part rtie ies: s: Both Both the suits must be between the same parties or between their representatives.

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4) Pe Pend nden ency cy of Su Suit it:: The previously instituted suit must be pending:-

a.

in th the e sam same e Cou Court rt in wh whic ich h the the su subs bseq eque uent nt su suit it is br brou ough ght, t, or

b. c.

in any other Court in India, or in any any Cou Court rt bey beyon ond d the the limi limits ts of of Indi India a esta establ blis ishe hed d or em empo powe were red d by th the e Cent Centra rall Government, or before the Supreme Court. Jurisdiction: The Jurisdiction: The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit. Same Title: Such Title: Such parties must be litigating un der the same title in both bo th the suits.

S U K M A K d. e. f.

Provisions are Mandatory: The Mandatory: The provisions contained in section-10 are mandatory and no discretion is left with the Court. The order staying proceedings in the subsequent suit can be made at any stage. A suit pending pending in a Foreign Court: The Court: The pendency of a suit in a foreign Court does not preclude preclude the Courts in India from trying trying a suit founded on the same cause of action.23 Inherent power power to stay: A stay: A civil court has inherent power U/s 151 to stay a suit in the ends of of justice or to consolidate different different suits between the same parties containing the same matter in issue substantially. substantially.

Decree passed pass ed in contravention of S.10: It S.10: It is the trial and not the institution of the subsequent subsequent suit which is barred under under this section and therefore, a decree passed in contravention of S.10 is not a nullity, nullity, and the same can be executed. be executed. Consent of parties: parties: The The provision of Section 10 is a rule of procedure which can be waived by by a party and where the parties parties waive their right and expressly ask the Court to proceed with the subsequent subsequent suit, they cannot afterwards afterwards challenge the validity of the proceedings. Res-Judicat a Res-Judicata (A case or sui t already decided) (The rule of C onclusiveness onclusiveness of judgment)

Meaning: "R es-judicata" es-judicata" consists consists of two Latin Words, 'Res' means a thing or a matter or a question and 'Judicata' means adjudicated, adjudged or decided. Therefore, the expression 'Res-judicata'' means "a thing or matter already adjudged or adjudicated or decided".

Res-judicata means "a final judicial decision pronounced by a judicial tribunal having competent jurisdiction Res-judicata means 24 over the cause cause or matter in litigatio litigation, n, and over the parties parties thereto." thereto." 25

The principal of Res judicata is based on the need of giving finality finality to judicial decisions. When a matterwhether on a question of fact or a question of Law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed or no appeal lies, ne ither party will be allowed in a future suit or proceeding between 26 the same same parties parties to canvass canvass the the matter matter again. again.

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Section 11: 1: "No "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and h as been heard and finally decided by such court. Explanation-I: The expression "Former Suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

S U K M A K Explanation-II: For the purposes of this section the competence of Court shall be determined irrespective Explanation-II: For of any provisions as to a right of appeal from the decision of such court. Explanation-III: The mater above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly impliedly,, by the other.

Explanation-IV: Any matter which might and ought to have been made ground of defence or attack in such Explanation-IV: Any former suit shall shall be deemed to have been a matter directly and substantially in issue in suit. Explanation -V: Any Explanation-V: Any relief claimed in the plaint, which is not expressly granted by the degree, degree, shall, shall, for the purposes of this this section be deemed to have been refused. Explanation - VI: Where ExplanationVI: Where persons litigate bona fide in respect of a public right or of a private right right claimed, in common for themselves themselves and others, all persons interested in such right shall, for the purpose of of this section, be deemed to claim to claim under the persons so litigating.

Explanation -VII: The Explanation-VII: The provisions of this section shall apply to a proceeding for the execution execution of of a decree and references references in this section to any suit, issue or former suit shall be construed as references, respectively, references, respectively, to a proceeding proceeding for the execution of the decree" question arising in such proceeding and and a former proceeding f or or the execution of that decree.

An issue heard and finally decided by a Court of limited jurisdiction, competent competent to decide Explanation -VIII: An Explanation-VIII: such issue, shall shall operate as res judicata in a subsequent suit, notwithstanding that such Court Court of limited jurisdiction was was not competent to try such subsequent suit in which such issue has been subsequently subsequently raised," Object : The doctrine of Res Judicata is based upon the following followi ng four maximsa.

Nemo debet lis vexari pro una et eadem causa: no man should be vexed twice over for the: same cause;

b. Interest republicae ut sit finis Iitium: it is in the interest of the State that there should be an end to a litigation; c. Res judicata pro veritate occipitur: an judicial decision must be accepted as correct. d. Res judicata pro veritate habetur: an adjudicated matter shall be deemed correct.

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Important Terms: T Terms: To o understand the doctrine of Res-judicata, it is essential to know the meaning of the following termsMatters in Issue: The expression 'matter in issue' means the right litigated between the parties. The matters in issue may be: Actually in issue Constructively in issue

Matters directly and Substantially in issue

S U K M A K Matters in issue :

Matters collaterally and incidentally in issue

Directly and substantially in issue: "A matter is 'directly and substantially in issue' if it is necessary to decide it in order to adjudicate the principal issue and if the judgment is based upon at decision." Directly: A matter cannot be said to be directly in issue if the judgment stands whether the fact exists or Directly: A does not exist. exist.

Substantiall y: means essentially, materially or in a substantial manner. A matter can be Substantially: be said to be substantially in substantially in issue if it is of importance for the decision of a case.

In order that a matter decided in a former suit may operate as res judicata in a subsequent suit, suit, it must have been directly and directly and subsequently in issue in the former suit. Illustration: A sues B for rent due. The defence of B is that no rent is due. Here the claim to rent rent is is the matter in respect of which the relief is claimed. The claim of the rent is, therefore a matter matter,, directly andsubstantially and substantially in issue.

Actually in i ssue: ssue: Expl. III

A matter is ac actually tually in issue when it is in issue directly and substantially and a competent Court decides Court decides it on merit. A matter matter is actually in issue when it is alleged by one party and denied or admitted by the other. the other. (Expl. III) Constructiv ely ely in issue : Expl. IV

A matter can be said be constructively in issue when it "might and ought" to have been made a ground of defence or attack in the former suit. A. matter is constructively in issue when it might and ought to have been made a ground of defence or attack in the former suit. (Expl. IV) Collaterally or incidentally in issue: "A matter is 'collaterally or incidentally in issue' if it is necessary to decide it in order to grant relief to a plaintiff or to a defendant and the decision on such issue either way does not affect the final judgment.

A collateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a matter in respect of which no relief is claimed and yet it is put in issue to enable the Court to adjudicate upon the matter which is directly and substantially in issue. Decisions on the matters collateral and incidental to the main issues in the case will not operate as res-judicata.

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Illustration: A sues B for the rent due: B pleads abatement of the rent on the ground that the actual area of Illustration: A the land is less than that mentioned in the lease deed. The Court, however, finds the area greater than that shown in the lease deed. The finding as to the excess area, being ancillary to the direct and substantial issue, is not res judicata. It was held in re Gangabai Vs Chhabubai AIR 1982 SC 20 that 20 that in order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata.

S U K M A K The question whether a matter was directly and substantially in issue or merely collaterally or incidentally in issue must be decided on the facts of each case. In Vithal Ya In Vithal Yashwant shwant v. Shikanda Shikandarkhan, rkhan, AIR 1963 SC 385 the Court held that "It is well settled that if the final decision in any any matter at issue between the parties is based by a Court on its decision on more more than one point - each of which by itself would be sufficient for the ultimate decision- the decision on each each of these points operates operates as res judicata between the parties." Illustrations: A sues B (i) - for a declaration of title to certain lands; and (ii) - for the rent of those Illustrations: those lands. B denies A's title title to the lands and also contend that no rent is due. In this case, there are two matters matters in respect of which relief relief is claimed, viz. (i) - the title to the lands; and (ii) the claim for rent. Both these matters these matters are, therefore, dir ectly ectly and substantially in issue. Conditions t o apply S.11: T S.11: To o constitute a matter as Res judicata U/s 11, the following conditions conditions must be satisfied -

a. Matter in Issue in Issue : The matter directly and substantially in issue in the subsequent suit or issue issue must be the same matter same matter which was directly and substantially in issue either actually or constructively constru ctively in the former suit. suit. b.

Same Parties: arties: The The former suit must have been a suit between the same parties or bet between ween parties under whom whom they or any of them claim.

c.

Same Title: Title: Such Such parties must have been litigating under the same title in the former suit.

d. Competent Court: Court: The The court which decides of the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequent raised. e.

Final decision of former suit: suit: The The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.

Constructive Res-Judicata (Prayer for the same relief in the subsequent suit) The doctrine of constructive Res-judicata is provided in the Explanation IV of section 11 which explains that where the parties have had an opportunity of controverting a matter, that should be taken to be the same

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thing as if the matter has been actually controverted and decided. The object of Expl. IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence which were open to him. The rule of Constructive res judicata is an artificial form of res judicata, and provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter. That clearly is opposed to consideration of Public Policy. Policy. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments p ronounced by Courts would also be materially affected.

S U K M A K In Forward Construction Co. Vs. Prabhat Mandai AIR 1986 S.C., the Court observed that "an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence."

The principle underlying Expl. IV is that where the pa rties have had an opportunity of controverting a matter that should be be taken to be the same thing as if the matter had been actually controverted and decided. decided. It It is true that where where a matter has been constructively in issue it can not be said to have beer actua actually lly heard and decided. It could could only be deemed to have been heard and decided. In Workmen, Workmen, C.P. Trust Vs Board of Trustees AIR 1978 S.C. 1283, the Supreme Court held held that "The principle of res res judicata also comes into play when by the judgment and order a decision of a particular particular issue is implicit in it, it, that is, it must be deemed to have been necessarily decided by implication; then then also the principle of res res judicata on that issue is directly d irectly applicable. When any matter which might and ought ought to have been made a ground a ground of defence or attack in a former proceeding but was not so made then such such a matter in the eye of law, law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to t o have been constructively constructivel y in issue and, therefore, is taken as decided". 27

lIIustrations

1. A files a suit suit against B for declaration that he is entitled to certain lands as heir of C. The suitis suit is dismissed. The subsequent subsequent suit, claiming the same property on the ground of adverse possession, is possession, is barred by constructive construct ive res judicata.

2. A files a suit against B to recover money on a pro-note. B contends that the promissory promisso ry note was obtained from him by undue influence. The objection is overruled and suit is decreed. B cannot challenge the promissory note on the ground of coercion or fraud on subsequent suit, in as much as he ought to have taken that defence in the former suit. 3. As a mortgagor A sues B for redemption of certain property alleging that he has mortgaged it with possession to B. The mortgage is not proved and the suit is dismissed. A files another suit against B for possession of the same property claiming to be the owner thereof. The suit is not barred. 4. A sues B for a declaration that he is entitled to certain property as an heir of X. The suit is dismissed. A files another suit for injunctions on the ground that he had become an owner of the property by adverse possession. This ground was available to him even at the time of previous suit but was not taken at that time. The subsequent suit is barred.

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Section 11 is not exhaustive It has been held in Lal Chand Vs Radha Kishan A IRs. 1977 S C 789 by Chandrachud, J. that ......... Section 11 11 is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of Law. The principle of res judicata is convinced in the larger public interest, which requires that all litigation must, sooner than later, come to an end. Waiver of Plea of res-judicata: The res-judicata: The plea of res judicata is not one, which affects the jurisdiction of the Court. The doctrine of res jUdicata belongs to the domain of procedure and the party may waive the plea of res judicata. Similarly, Similarly, the Court may decline to go into the question of res judicata on the ground that it has not been properly raised in the proceedings or issues.

S U K M A K Res-judicata between co-defendants: A co-defendants: A matter may operate as res-judicata between co- defendants and co- plaintiffs if the following conditions are satisfied: a.

Ther Th ere e mus mustt be co conf nfli lict ct of in inte tere rest st be betw twee een n the the co co-d -def efend endan ants ts..

b.

It must be necessary to decide that conflict in order to give relief to the plaintiff.

c.

The question between the co- defendants must have been finally decided; and

d.

The co- defendants were necessary or proper parties in the former suit.

Illustration: A sues B, C and D and in order to decide the claim of A, the Court has to interpr et a will. The Illustration: A decision regarding regarding the construction of the will on rival claims of the defendants will operate as res-judicata as res-judicata in any subsequent subsequent suit by any of the defendants against the rest.

Distinction between between Res Sub – Judice (S.10) and an d Res- Judicata (S.11) Res-judicata

Res Sub-Judice

1. It applies applies to a matter adjudicated upon (Res judicatum)

It applies to a matter pending trial (sub-Judice) (sub-Judice)

2. It bars the the trial of a suit or an issue, which has been decided decided in a former suit.

It bars trial of a suit which is pending decision de cision in a previously institute suit.

Res-judicata between different diff erent stages of the same proceedings: The principle of res- judicata applies 28 in between two stages in the same Iitigation Iitigation ". It is well settled that principle of res-judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the 29 subsequent subse quent stage stage of that procee proceeding ding …..” …..” Res-judicata and Issue Estoppel: Issue Estoppel: An Estoppel: An issue or fact of law which has been determined in an earlier proceeding cannot be raised in a subsequent proceeding. The court has few inherent power in the interest of finality not to allow a particular issue which has already been litigated to be reopened.

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There is a distinction between 'issue estoppel' and 'res-judicata'. Res-judicata debars a court from exercising its jurisdiction to determine the lis lis if if it has attained finality between the parties whereas the doctrine of issue estoppel is invoked against the party party.. If such an issue is decided against him, he would be 30 estopped estopp ed from raising raising the the same in the later later proceedin proceeding. g. Criminal Proceedings: The Proceedings: The doctrine of res-judicata is of universal application, which applies even to criminal proceedings. Once a person is acquitted or convicted by a competent criminal court, he cannot once again, be tried for the same offence.

S U K M A K Writ Petitions: The Petitions: The General principle of res-judicata applies even to Writ petition filed under Article 32 of the Constitution. This was held, first time, in re Sharma v Krishna Sinha AIR 1960 SC.

It would not be open to a party to igno re the judgment passed on a writ petition filed by a pa rty under Article Article 226, which is considered on merits as a contested matter and is dismissed, and again move the High Court under Article 226 or the Supreme Court under Article 32 on the same facts and for obtaining the same or 31 simila sim ilarr orders orders or writ writs. s. Writ Petition and Petition and Constructive Res-Judicata: The question whether the rule of constructive res-judicata constructive res-judicata can be applied applied to writ petitions, was first answered by the Hon'ble Supreme Court in Amolgamated Amolgamated Coalfields Ltd. Ltd. v. Janapada Sabha AIR AIR 1964 SC. It held that "In our opinion, constructive res-judicata res-judicata which is a special and and artificial form of res-judicata enacted by Section 11 of the code should not generally be applied to writ writ petitions filed under u nder Article 32 or Article 226." But in re Devilal Devilal v S. T.O. T.O. AIR AIR 1965 SC, the Court had decided that the principle of constructive constructive res-judicata res-judicata 32 33 also applies to to writ petit petitions. ions. The principl principle e of res-judic res-judicata ata (constr (constructiv uctive e res-judica res-judicata) ta) is notapplicable not applicable to the writ petition petition of Hebeas Corpus.

Res-judicat e and Estoppel: Res-judicata Res-judicate Estoppel: Res-judicata is really estoppel by verdict or estoppel by judgment judgment (record). The rule of constructive constructive res-judicate is nothing else but a rule of estoppel. Even then, the doctrine doctrine of res judicata diffe differs rs in essentials particulars from the doctrine of estoppel.

Distinction Disti nction Between Res-judicata & Estoppel

It results from a decision of the Court. 1. Origin: n: It Estoppel flows from the act of parties.

2. Basis : The rule is based upon public policy, viz that there should be an end to litigation. It bars multiplicity of suits.

It proceeds upon the doctrine of equity; that he who by his conduct, has induced another to alter his position to his disadvantage cannot turn round and take advantage of such alteration of the other's position.

3. Affec Affects ts the the jur jurisd isdic ictio tion n : It ousts the jurisdiction of a court to try a case and precludes an enquiry in limine. In other words, estoppel prevents multiplicity of representations.

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4. St Stop op th the e Pa Part rty: y: It It prohibits a man averring the same thing twice in successive litigations. It is only a rule of evidence and shuts the mouth of a party. 5. Bindin Binding g effect effect on party party/pa /parti rties es:: This rule presumes conclusively the truth of the decision in the former suit. It binds both the parties to a litigation.

S U K M A K Estoppel prevents him from saying one thing at one time and the opposite at another. The rule of estoppel prevents a party from denying what he has once called the truth. i.e. estoppel binds only that party who made the previous statement or showed the previous conduct.

FOREIGN JUDGMENT (A judgment of a Foreign Court)

Meaning: S. S.2(6) 2(6) defines the foreign judgment as the "judgment of a foreign Court". The term f oreign Court has been def ined ined in s. 2(5) as a Court situate outside India and not established or continued by the by the authority of the Centr al al Government. The examples of the foreign Courts are the Courts in England, England, Pakistan, Ceylon etc. Object: The judgment Object: The judgment of a foreign Court is enforced on the principle that where a Court of Competent Jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. claim. Section 13 embodies the principle the principle of res-judicata in foreign judgments. This provision embodies the principle ple of private International Law International Law that a judgment delivered by a foreign Court of competent jurisdiction can be be enforced in India. Example: A sues B in a foreign Court. The suit is dismissed. The judgment will operate as a bar to a fresh suit by A against against B in India on the same cause of action.

Conclusive Nature: Nature: Section Section 13 of the Code provides that a foreign judgment shall be conclusive conclusive as to any matter thereby thereby directly adjudicated upon between the same parties or between- parties underwhom under whom they or any of them claim claim litigating under the same title except as specified in clauses (a) to (f) of Sec. 13. 13.

When Foreign Foreign Judgment Not Binding: According Binding: According to Section 13 under the following six cases, cases, a foreign judgment shall not be conclusive 1) Foreig Foreign n Judgment Judgment not by by a Compet Competent ent Court Court;; 2) For Foreig eign n Judgm Judgment ent not on on merit merits; s;

3) Foreig Foreign n Judgment Judgment against against Inter Internation national al or Indian Indian Law; Law;

4) Foreig Foreign n Judgment Judgment opposed to Natural Natural Justice; Justice; Foreign Foreign Judgment Judgment obtained obtained by fraud; fraud; 5) Foreig Foreign n Judgment Judgment founde founded d on a breach of Indian Indian Law; Law;

Foreign Judgment Not by Competent Court: A Court: A foreign judgment must be pronounced by a Court of competent jurisdiction and must be by a Court competent both by the law of the State which has constituted it and in an International sense and it must have directly adjudicated u pon the 'matter' which pleaded as res-

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judicata. Only the judgment and not the reasons for the judgment is conclusive. Foreign Judgment Not on Merits: A Merits: A judgment is said to be given on merits when, after taking evidence and application of mind, the Judges decide the case one-way or the other. The The dismissal of suit for default of appearance or non-production of the document by the plaintiff or passing of decree due to default of defendant in furnishing security are not on merits and can not be conclusive.

S U K M A K Foreign Judgment Against International or Indian Law: The mistake of International or Indian Law must be apparent on the face of the proceedings.

In Narsimha Rao V. Venkata Lakshmi (1991) 3 SCC, the Court held that "when a foreign judgment is founded on a jurisdiction or on a ground not recognized by International or Indian Law, it is a judgment which is in defiance of the law. Hence, it is not conclusive of the matter adjudicated therein and, therefore, not enforceable in this country. Foreign Judgment Judgment Opposed to Natural Justice: The judgment pronounced by a Foreign Court must e after the observation observation of the judicial process, i.e., the Court rendering the Judgment must observe the minimum requirements requirements of Natural Justice. The judgment to be conclusive must be compose composed d of impartial persons, act fairly fairly,, without bias, and in good faith; it must give reasonable notice to the parties to to the dispute and to afford each party adequate opportunity of presenting his case. Foreign Judgment Judgment Obtained by Fraud: It Fraud: It is the fundamental Principle of Private international international Law that a Foreign Judgment Judgment is obtained by fraud, it will not operate as res-judicata. It is the settled preposition preposition of law that a judgment judgment or decree obtained by playing fraud on the Court is a nullity and non est in th the e eye of law. Such a judgment/decree judgment/decree by the first Court or by the highest Court has to be treated as a nullity nullity by every 34 Court, whether whether superior or inferior. It can be challenged in any Court even in collateral proceedings.

Foreign Judgment Judgment Founded On Breach of Indian Law: It Law: It is implicit that the foreign law and law and foreign 35 judgment wo would uld not offend offend against our public policy. policy. Thus, a foreign judgment .for a gambling gambling debt debt or on a claim which is is barred under the Law of Limitation in India is not conclusive. Presumptio n as to Foreign Judgments: Section Presumption Judgments: Section 14 provides that "the Court shall presume, presu me, upon the reduction of any document purporting to be certified copy of the foreign judgment, that such such judgment pronounced by a Court of Competent jurisdiction unless the contrary appears on the record; record; but such presumption may be displaced by proving want of jurisdiction." Enforcement of Foreign Judgments: A Judgments: A conclusive judgment U/s 13 can be enforced in India in the following two ways:-

1) By Instituting Instituting a suit on such Foreign Judgment: Judgment: A A foreign judgment may be enforced by institution of 36 a suit within a period of 3 years from the date of the foreign judgment. The Apex Court has held in Roshan Lal V Mohan Singh AIR 1975 SC that any decision of a foreign Court, Tribunal or Quasi-judicial authority is not enforceable in a Country unless such decision is embodied in a decree of a Court of that Country; or 2) By Institut Institution ion of Executing Proceedings: A foreign judgment may be enforced by way of execution proceedings as per specified U/s 44-A of the Code and where all the conditions of S. 13 (a) to (f) are

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satisfied. PLACE OF SUING (SECTION (SECTI ON 15 TO 20) The first and the important thing is the place of suing in order that a Court can entertain, deal with and decide a suit. Section 15 to 20 of C.P.C. C.P.C. regulate the forum for the institution of suits. Rules as to forum

S U K M A K The rules as to forum can be discussed under the following two headsa.

Rules as to pecuniary jurisdiction jurisdiction:: The rule about the pecuniary jurisdiction is that the "Every suit 37 shall be institute instituted d in the court of the lowest lowest grade competen competentt to try it."

The above rule is one of o f procedure only and not of jurisdiction and therefore, exercise of jurisdiction by. a Court of higher grade than is competent to try the suit is mere irregularity covered by section 99 and the decree decree passed by the Court is not nullity while the exercise of jurisdiction by a Court of of lower grade than the one one which is competent to try it, is a nullity as being without jurisdiction.

b. Rules as as to to nature of the suit: Suits suit: Suits may be divided into three c1asses-

1)

i.

Suits in respect of immoveable property,- section 16 to 18

ii.

Suit for compensation for wrong (for torts) to person or movable property,- Section on 19, and

iii.

Suits of other kinds, - section- 20.

Suits in respect of immoveable property: Sections property: Sections 16 to 18 deal with suits relating to immoveable to immoveable property. 38

Suits to to be instituted where subject-matter situate : Section 16 provides as Subject Subject to the pecuniar y or other limitations prescribed by any law, suits for the recovery of immoveableproperty immoveable property with or without without rent or profitsa. for the the partit partition ion of immov immoveab eable le proper property; ty;

b. for foreclosu foreclosure, re, sale sale or redemption redemption in the case case of a mortgage mortgage of or charge charge upon upon immovable immovable property; c. for the the determinatio determination n of any other other right right to or intere interest st in immovab immovable le property; property; d. for compens compensation ation for wrong wrong to immovab immovable le property property,,

e. for the recover recovery y of immovable immovable property property actually actually under under distraint distraint or attachm attachment, ent, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. Provided that a suit to obtain relief respecting, or compensation for wrong to, immoveable property held by

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or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation: In Explanation: In this section "property" means property situate in India. 39

Section 17 provides as Suits for immoveable immoveable property situate situate within within jurisdiction jurisdiction of different different courts: courts: Section

S U K M A K "Where a suit is to obtain relief respecting, or compensation for wrong to, immoveable property situated within the jurisdiction of different Courts, the suits may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court. 40

Place of institution ins titution of suit where local limits of jurisdiction of Courts are uncertain : Section 18 provides as

1. Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more more Courts any immoveable immoveable property is situate, anyone of those Courts may, may, if satisfied that there is ground ground for the alleged uncertainty uncertainty,, record a statement to that effect and thereupon proceed to entertain and and dispose of any suit r elating elating to that property, and its decree in the suit shall have the same effect as if the property were situate situate within the local limits of its jurisdiction. Provided that the suit is one with respect to which the Court is competent as regards the Provided that the nature and 41 value of the the suits suits to exerci exercise se jurisdi jurisdiction ction..

2.

Where a statement has not been recorded U/s 18(1), and the objection is taken before an Appellate Court or Revisional Court that a decree or order in a suit relating to such property was made made by a Court not having having jurisdiction where the property is situate, the Appellate Court or Revisional Court Court shall not allow the objection the objection unless in its opinion there was, at the time of institution of the suit, no no reasonable ground for for uncertainty as to the Court having jurisdiction with respect thereto and there has there has been a 42 consequent consequ ent fai failur lure e of jus justic tice. e. 43

2) Suit for compensation for wrong to person or movable property: Section 19 provides as Where a suit is for compensation for wrong done to the person or to moveable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said courts. Illustrations:

a. A, residing residing in Delhi, beats beats B in Calcutta. Calcutta. B may sue A either either in Calcutta Calcutta or in Delhi. Delhi. b. A, residing residing in Delhi, publishe publishes s in Calcutta Calcutta statements statements defamator defamatory y of B, B may sue A either either in 3.

Calcutta or in Delhi. 44 Suits for other kinds : Section 20 provides as

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Subject, to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdictiona.

the defendant, or each of the defendants where where there are more than one, at the time time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, or

S U K M A K b. any of the defendants, where there are more than one, at the time of the the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gains, provided that in such case either the leave of the Court is given, or the defendant who does not reside, or carry on business, or personally work for gain, as aforesaid, acquiesces in such institution; or c. the cause of action, wholly or in part, arises.

Explanation: A corporation shall be deemed to carry on business at its sole or principal office in India or in Explanation: A respect of any any cause of action arising at any place where it has also a subordinate office, at such such place. Illustration:

1) A is a trad tradesman esman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys buys goods good s of A and requests requests A to deliver them to the East India Railway Company. Company. A delivers the goods accordingly accordingly in Calcutta. A Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action action has arisen or in Delhi, Delhi, where B carries on business. 2) A reside resides s at Shimla, B at Calcutta and C at Delhi. A, Band C being together at Banaras, Band Band C make a joint Pro Promissory missory note payable on demand, and deliver it to A. A may sue Band C at Banaras, Banaras, where the cause of action arose,. He may also sue them at Calcutta, where B resides, or at Delhi, where where C resides; but in each each of these case, if the non-resident no n-resident defendant objects, the suit can not proceed proceed without the leave of the the Court. Objections to t o Jurisdiction - Section 21

45

Objections as to territor territorial ial (Place (Place of suing) suing) jurisd jurisdicti iction on : "No objection as to the place of suing suing shall be allowed by any any Appellate or Revisional Court unless a. Such object objection ion was was taken taken in the the Court Court of first first instan instance. ce.

b. at the earliest earliest possible possible opportunit opportunity y and in all cases where where issues are are settled settled at or before such such settlement, c. and unless unless there has been been conseque consequent nt failure failure of justice justice”. ”. 46

All these three conditions must co-exist.

47

Objections Objectio ns as to pecuniar pecuniary y jurisdict jurisdiction ion : "No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court less-

21

1)

such su ch ob obje ject ctio ion n was was ta take ken n in in the the Co Cour urtt of of fir first st in inst stan ance ce,,

2)

at the the earl earlies iestt possi possible ble oppo opportu rtunit nity y and and in all cas cases es wher where e issue issues s are are settl settled ed at at or bef before ore suc such h settlement,

3)

and an d unle unless ss th ther ere e has has bee been n a con conse sequ quen entt fai failu lure re of Ju Just stic ice. e."" 48

All these three conditions must co-exist.

S U K M A K 49

Objections Objectio ns in execut execution ion proceed proceedings ings : "No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction" shall be allowed by any Appellate or Revisional Court unlessa. such object objection ion was was taken taken in in the execu executing ting Court Court,, b. at the earli earliest est possi possible ble opport opportuni unity ty,,

c. and unless unless there there has has been a consequent consequent failur failure e of Justic Justice." e."

Lack of jurisdiction juri sdiction and Waiver of defect as to place of suing: It is well settled principle principle of law that neither consent consent nor waiver nor acquiescence can confer jurisdiction upon a Court otherwise incompetent incompetent a try a suit.

An objection as to local jurisdiction of a Court can be waived and this principle has been given given a statutory 50 recognition in in Section Section 21 of the Code Code of Civil procedur procedure e and provides provides that the the defect defect as to the to the place of suing under 15 15 to 20 may be waived.

Objections as as to jurisdiction both territorial, pecuniary and technical are not open to consideration consideration by an 51 Appellate Court Court unless unless there has been prejudice prejudice on merits merits and the section section does not preclud preclude objections as to the place place of suing being taken in the Appellate Court or Revisional Court, if the trial Court Court has not decided the suit suit on merits. The mere lack lack of territorial or pecuniary jurisdiction is considered as merely technical and it can can be waived in the sense that that if objection with regards to them is not taken at the earliest opportunity, opportunity, at any any stage, at or before the settlement settlement of issues, the same cannot be allowed to be raised at a later stage stag e unless it is 52 established that that there there is a conseque consequent nt failure failure of Justic Justice. e.

It is a fundamental fundamental principle that a decree passed by a Court without jurisdiction is a nullity andthat and that invalidity could be set up wherever it is sought to be enforced or relied upon even at the stage of execution. The defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action strikes at the very authority of the Court to pass any decree and such defect cannot be cured even by 53 consen con sentt of par partie ties. s.

Section 21 is an exception and defect as to place of suing, that is to say, the local venue for suits cognizable by Courts under the Code may be waived under this section. Such waiver is limited to objections in the 54 Appellate or Revisional Courts. Bar of Fresh Suit - Section -21-A Bar on suit to set-aside decree on objection as to place of suing: No suit shall lie challenging the

22

validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing. Explanation: The expression "former suit" means a suit which has been decided prior to the decision in the Explanation: The suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned.

S U K M A K IMPORTANT QUESTIONS Q.1.

Define decree. Define decree. What What are its essenti essentials? als? Explai Explain n the diffe differences rences betwe between en preliminar preliminary y and final final decree.

Q.2.

a) Discuss Discuss the the principles principles of Res-j Res-judicat udicata. a. Is section section 11 C.P.C. C.P.C. exhausti exhaustive ve in this this matter? matter? b) What are the essential conditions and objects of Res-judicata? c) Does Does Res-judicata apply to execution proceedings?,

d) Can Can there be res-judicata between co-plaintiffs or between co-defendants?

Q.3.

Explain fully the principles of constructive Res-judicata. Explain

Q.4.

What is stay of suit? Give difference between Res-judicata and Res-Sub-judice?

Q.5.

What is foreign judgement? Are the foreign judgments conclusive? Are they binding on the on the parties in India? India ?

Q.6.

What are What are the principles and provisions of C.P.C. C.P.C. for determining the jurisdiction of su suits its relating to immovable immo vable property? Discuss.

Q.7.

What do you understand by suit of civil nature? Explain.

Q.8.

Explain the following:Explain a) Men Mense Profits

b) Place of suing

c) Deemed Deemed Decree

d) Jurisdiction of Civil Court

Q.9. Distinguish between the following: a) b)

Decree and order Prelimina narry De Decree an and Fi Final De Decree

References:

1. Sec ecti tion on 2(1 2(12) 2)

2. Luc Lucy y V. V. Mariap Mariappa, pa, AI R 1979 1979 SC SC 3. Mahan Mahantt narayan Dasjee Dasjee V. V. Tirupath Tirupathii Devasthanam, Devasthanam, AIR 1965 1965 SC 4. Raja Soap Soap Factory Factory v S.P S.P.. Shantharaj Shantharaj,, AIR 1965 1965 SC 5. Chief Justi Justice,A ce,A.P .P.. V Dixitulu, Dixitulu, AIR 1979 1979 SC

23

6. Vasudev Modi Vs Vs R. Rehman Rehman A I R 1970, 1970, S.C S.C 7. Ibid' 8. Kir Kiran an Sing Sing V Chama Chaman n Paswan Paswan AIR 1954 1954 SC SC 9. Lo Lord rd Hob Hobho hous use e 10. Mathai Vs Varkey Varkey Varkey Varkey A.I.R., A.I.R., 1964 S.C 11. Bhatia Coop. Housing Society V D.C. Patel, Patel, AIR AIR 1953 SC

S U K M A K 12. Abdulla Vs Golappa, Golappa, AIR 1985 S.C. S.C.

13. Abdul Wahid Khan Khan Vs Bhawani, AIR 1966 S.C. 14. Ubi jus ibi remidium remidium

15. Oxfo Oxford rd English Dictionary Dictionary

16. P.M.A. Metropolitan V M.M. Marthoma,AIR Marthoma,AIR 1995 SC 17. Sec Sectio tion n9

18.. Um 18 Umra rao o Singh V Bhagwan Singh, AIR 1956 SC 19.. Ab 19 Abdu dull V Bhawani AIR 1966 SC

20.. Bh 20 Bhat atiia Coop. Housing Society V D. C. Patel, AIR 1953 SC 21.. Pr 21 Prem emier ier Automobiles V K. S. Wadke, AIR 1975 SC

22.. Na 22 Nati tio onal Institute of Mental Health & Neuro Science V Parameshwara 2004 AIOC Com: Com: 23.. Ex 23 Expl pla anation to Section 10 24.. Sp 24 Spen encer cer Bower

25.. Da 25 Das s Gupta, Gupta, J. in Satyadhyan Ghosal V Deorajin Debi AIR 1960 SC 26.. Su 26 Supr pr a Note 4

27.. Fr 27 From om C. C. K. Tackwani

28.. Sa 28 Sayy yyadhan adhan v. Deorajin Dabi AIR 1960 SC

29. Y. B. Patil v Y. Y. L. Patil, (1976) 4 SCC 66, See also Prahlad Singh v Shukhdev Singh, (1987) 1 SCC 727

30.. Bh 30 Bhan anu u Kumar Jain v Archana Kumar (SC) 2005 (1) AWC 31.. Da 31 Dary ryao ao Singh v State St ate of U.P. U.P. AIR 1961 SC

32. See also State of U.P. U.P. v. Nawab Hussain AIR 1977 SC 33. Gautam Sarwar v. v. Union of India AIR 1967 SC.

34. Chengalvaraya Naidu V Jagannath, AIR 1994 SC, see also Satya V. V. Teja Teja Singh AIR 1975 SC, Narsimha Rao V. Venkata Venkata Lakshmi (1991) 3 SCC.

35. Satya V Teja Teja Singh AIR 1975 SC 36. 36. Article 101, Limitation Limitation Act, 1963 7. 37. Sec Sectio tion n 15 38. Sect Section' ion' 16 39. Sec Sectio tion n 17 40. Sec Sectio tion n 18

24

41. Sect Section ion 18 (1) 42. Sect Section ion 18(2) 43. Sect Section ion 19 44. 44. Sec Sectio tion n 20 45. Sect Section ion 21 (1) 46. Pathumma V Kuntalan Kutty (1981) 2 SCC 589, Hindustan Sugar Sugar Mills Vs State of Rajeshan Rajeshan A I R

S U K M A K 1981 S C 1683

47. Sect Section ion 21(2) 48. Supra Note 2

49. Sect Section ion 21 (3)

50. AIR 1982 Kant. Kant. 77, AIR AIR 1966 SC 634

51. Kiran Singh V Chaman Paswan, Paswan, AIR 1954, SC 340

52.. Kr 52 Kris ish hnappa M. R. V Bhagyalaxmamma AIR 1982 Kant. 77

53.. Ja 53 Jagd gdiish Vs Smt. Prem Lata 1999(2) Civil L J 266 Raj. (A I R 1954, S C 340 Relied on)

54.. Be 54 Behr hriin Petroleum Petrole um Co. Ltd. Ltd . Vs P. P. J. Pappu & Another, (1967) (1967 ) S C J 49; A I R 1966 S C 634 63 4

25

UNIT - II

S U K M A K PARTIES TO SUIT (ORDER-I)

Order I of the code provides the provisions with respect to the parties to suits and joinder, misjoinder and non-joinder of parties. Joinder of Plaintiff (Rule 1)

Joinder of Parties :

Joinder of Defendant (Rule 3)

The question of question of joinder of parties arises only when' an act is done by two or more persons persons Joinder of defendants) or it affects two or more persons Ooinder of plaintiffs) 1.

Joinder of Plaintiffs: (Rule 1) : All : All persons may be joined in one suit as plaintiffs wherewhere-

a) any right to relief in respect of, or arising out of, the same act or transaction or series seri es of acts or tr ansactions ansactions is alleged to exist in such persons, whether jointly, severally or in the the alternative; and b) if such persons brought separate suits, any common question of law or fact would arise arise..

2.

Joinder of Defendants: Rule (3) : All persons maybe joined in one suit as defendants defendantswherewhere-

1) any right to relief in respect of, or arising out of, the same act or transaction or series seri es of acts or transactions trans actions is alleged to exist against such persons, whether jointly jointly,, severally or in th the e alternative; and

2) if separate separate suits suits were brought brought against against such persons, persons, any common common question question of law or fact would would arise.

Example: An Example: An Altercation takes place between P on the one hand and Q and R on the other.

I. P assaults Q and R simultaneously. Q and R may join as plaintiffs in one suit for damages against P for that tortorious act. II. Q and R simultaneously assault P. P. P may join Q and R as defendants in one suit for damages for that tortorious act. 1

Joinder of parties parties liable on same same contract contract : The plaintiff may, may, at his option, join as parties to the same suit

26

all or any of the persons severally, or jointly and severally, liable on anyone contract, including parties to bills of exchange, hundis and promissory notes. 2

When plaintiff plaintiff in doubt from whom whom redress is to be sought : Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all arties.

S U K M A K 3

Separate tria : Where it appears to the Court that any joinder of plaintiffs or defendants may embarrass Separate delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interest of justice.

Judgment for or against one or more of joint parties: The Court may give judgment for one or more the 4 plaintiffs as may be found found to entitle to relief or as against one or more of the defendants as may found to be 5 liab li able. le. Necessary and Proper Parties: Parties: A necessary party is one whose presence is indispensable indispensable to the constitution of of the suit, against whom the relief is sought and without whom no effective order can can be made. In the absence absence of a necessary party no decree can be passed, while a proper party is one in hose hose absence an effective order can be made, but whose presence is required for a complete and al decision decision on the question involved involved in the proceeding. In the absence of a proper party a decree can passed passed so far as it relates to the parties the parties to the suit. Example: In a petition for compensation in a road accident case, the claimant(s) may join three three parties i.e. owner(s) of the the vehicle(s) involved in the accident, the insurer(s) of the vehicle(s) and the dr iver(s) iver(s) of the vehicle as respondents. respondents. The owner(s) and insurer(s), if any, are the necessary parties along along with the claimant(s), while the driver(s) of the vehicle(s) involved is/are the formal/proper party whose whose presence enables the Court Court to adjudicate more "effectually and completely' but even in his absence the Court Court can ass a decree. 6

Non Joinder or or misjoinder of parties : Non joinder means not joining proper or necessary parties to the suits, while mis-joinder mis-joinder is a state of joining two or more p ersons (whether necessary or proper proper arties) as plaintiffs or defendants defendants on one suit in contravention o f rules 1 and rule 3 respectively. respectively. As a general general rule, a suit shall not be not be dismissed only on the ground of non-joinder or mis-joinder of parties, except except in a case of non-joinder of of a necessary party part y.

Objections as to non joinder or misjoinder of parties: As has been provided in Rule 13 of Order I, all objections on the grounds of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases in which issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. 7

Suit in the Name of Wrong parties : Order I, Rule 10 deals with the cases of stricking out, addition or substitution of parties. 8

Addition or substitution substitution of plaintiff : In a case where a suit has been instituted in the name of wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right p laintiff, e court may at any stage of the suit, on the satisfaction of the following:

27

i)

that the suit suit has has been been institut instituted ed through through a bona fide mist mistake, ake, and

ii) that it is necess necessary ary for the the determinatio determination n of the real matter matters s in disputed, disputed, order any any other person to be added or substituted as plaintiff upon such terms as the Court may think just. Court may strike out or add parties: The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order at the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff .or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle 9 all the questions questions involved in the suit, be added.

S U K M A K No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent, i.e., no person can be added as a plaintiff without his consent. On the addition addition of a defendant, the plaint shall unless the Court otherwise directs be amended amended and amended copies copies of the plaint shall be served on the new defendant and if required, on on the original 10 defe de fend ndan ant. t. All proceedings as against any person added as defendant shall shall be deemed to have to have begun 11 only on the servi service ce of of the the summ summons ons.. Representat ive Suit: Representative (Order I, Rule Rul e 8)

Introduction: Order VIII, Rule 1 is an exception to the general rule that all persons interested in Introduction: in a suit ought to be joined as as parties to it, in order to finally adjudicate all the matters involved therein and to avoid avoid the fresh litigations over over the same matters. The rule is an an enabling provision and neither compels anyone to represent many if, by himself, himself, he has a right to suit nor nor vest a right of suit in a person and if he, by himself, has no right to sue, he cannot cannot proceed to sue on behalf behalf of others by invoking the aid of Order 1 Rule 8 C.P.C. C.P.C. epresentative Suit may be defined as under "A representative suit is a suit filed by or against Meaning: Representative Meaning: R one or more persons persons on behalf of themselves and others having the same interest in the suit." 12 Who may may sue or defend defend in Representa Representative tive Capacity Capacity : 1) Where there are numerous persons having the same interests in one suit

a. One or more of such such persons may may, with the permissi permission on of the Court, Court, sue or be sued, or may defend defend such suit, on behalf of, or for the benefit of, all persons so interested;

b. the Court Court may direct direct that one or more more of such persons persons may may sue or be sued, sued, or may defend defend such suit, suit, on behalf of, or for the benefit of, all persons so interested. 2) The Court shall, in every case where where a permission or direction is given under Sub-rule (1), at the plaintiff expense, give notice of the institution of the suit to all persons so interested, either b y personal service, or, where, by reason of number of persons or any other cause, such service is not reasonably

28

practicable, by public advertisement, as the Court in each case may direct. 3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under Sub-rule (1), may apply to the Court to be made a party to such suit. 4) No part of the claim in any such such suit shall be abandoned under Sub- rule (1) and no such suit shall be withdrawn under Sub- rule (3) of Rule (1) of Order XXIII, Le. Order 23, Rule 1 (3), and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule (3) of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2).

S U K M A K 5) Where any person suing or defending in any suit does not proceed with due diligence diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. 6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, a s the case may be. Explanation : For the purpose of determining whether the persons who sue or are sued, or defend, have Explanation: the same interest interest in one suit, it is not necessary to establish that such persons have the same same cause of action as the" the" persons on whose behalf, or for whose benefit, they sue or are sued or defend the the suit, as the case may be. Conditions to Apply Rule 8 : The : The Apex Court has decided in T. N. Housing H ousing Board Boar d v. Ganapathy, Gan apathy, AIR 1990 SC that SC that for for the application of Rule 8 the following conditions must be fulfilled:a.

the parties must be numerous; Rule 8(1)

b.

they must have the same interest in the suit; Rule 8(1)

c.

the permission must have been granted [Rule 8(1) (a)] or direction must have been been given by

the th e Court [Rule 8( 1) (b)]; and

d.

notice must have been issued to the parties whom it is proposed to represent represe nt in the suit. Rule 8(2)

1) Numerous persons: The persons: The word" numerous" means a group of persons. It is not necessary necessary that the number of persons should be capable of being ascertained. But it is necessary that the body of persons represented by the plaintiffs or the defendants must be sufficiently definite so as to enable the Court to recognize as participants in the suit. 2) Same Same In Inte tere rest st:: The persons on whose behalf the suit is instituted must have the same interest which is common to all of them or they must have a common grievance which they seek to get redressed. For the purpose of this condition the above explanation to Rule 1 is relevant. 13

3) Pe Perm rmis issi sion on or di dire rect ctio ion n by by the the Co Cour urtt

4) No Noti tic ce 14: The fact about the representative nature of the suit must be stated in the body of the

29

plaint as well as in the file of the suit. In a representative suit, even on the death of the person appointed to conduct such suit, such suit will not abate and other person or persons interested in the suits may proceed with the suit or may apply to be added as plaintiff. FRAME OF SUIT (ORDER II) Introduction: Order II of the code deals with the provisions relating to the framing of suits and the rules Introduction: Order regarding causes of action. A cause of Action means every fact which it is necessary for the plaintiff to establish to support his claim in obtaining judgment in his favour. Order II, Rule 1 explains that every suit shall be framed so as to afford ground for the final decision upon the subject in disputes and to prevent further litigation concerning them.

S U K M A K Suit to include the whole claim: Rule 2 of order II is based upon the principle that a defendant should not be vexed twice for the same cause of action. Sub-rule 2 of rule 20f Order II provides that e very suit shall include the whole claim in respect of a cause of action. Relinquishment of claim: But Relinquishment claim: But a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction jurisdiction of the Court15 and where a p erson is entitled to more than one relief in r espect of the same cause of action, then he may sue for all or any of such relief.16

Effect of Relinquishment: Relinquishment: Omission to sue: Where sue: Where a plaintiff omits to sue in respect of, or intentionally intentionally relinquishes, any relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion s o omitted or relinquished17 relinquished 17 and if he omits to sue for all such relief with respect to the same cause of actio action n except with the leave of the the Court, he shall not afterwards sue for any relief so omitted. For example: example: A lets a house to B at a yearly rent of Rs. 1,200/- The rent for the whole of the years the years 1905, 1906, and 1907 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not af terwards sue B for the rent due for 1905 and 1906.

The provisions provisions of order II, Rule 2 apply only to suits and not to appeals, execution proceedings, proce edings, and arbitration pr oceedings oceedings or to a petition under Art. 226. 18

Joinder of Cau Cause se of Ac Acti tion on : Subject to the provisions of Rules 4 and 5 of order II and rule rule 3 3 of order I, Rules 1 and 3 of Order II provide the provision for joinder of several causes of action in one suit. one suit. Rule 3 contemplates contemplate s the under mentioned four types of situations: 1) One plaintiff plaintiff,, one defendant -and several causes of action: In this condition the plaintiff is at liberty to unite several causes of action in one suit.

2) Joinder of Plaintiffs Plaintiffs and Causes of Action (two or more plaintiffs plaintiffs and same defendant): defendant): In this condition, subject to Order I, rule 1, the plaintiffs may unite such causes of action in one suit against the same defendant if they all are jointly interested. 3) Joinder of defendants and Causes of Action (One plaintiff and two or more defendants) : In this condition, subject to rule 3 of order I, the plaintiff may unite in the same suit several causes of action against those defendants, if the defendants are jointly interested in the causes of action. 4) Joinder of plaintiffs plaintiffs,, defendants and causes of Action (Two (Two or more plaintiffs and two or more

30

defendants): In this condition, subject to rules 1 and 3 of order I the plaintiffs may unite the causes of defendants): In action against the defendants in the same suit only when all the plaintiffs and all the defendant~ are jointly interested in the causes of actions. Conditions of mis-joinder mis-joinder:: 1) Mis-joinder of plaintiffs and causes of action: Where plaintiffs are not jointly interested in the causes of action and the suit is bad for mis-joinder of plaintiffs and causes of action.

S U K M A K 2) Mult Multif ifar ario ious usne ness ss:: Where defendants are not jointly interested in the causes of action, the suit is bad for Multifariousness.

3) Doub Double le mis mis joi joind nder er:: Where neither the plaintiffs nor the defendants are jointly interested in the cause of action i.e., mis joinder of plaintiffs and causes of action and mis joinder of defendants and causes of action. 19

Objections as to mis misjoi joinde nders rs : All objections on the ground of mis-joinder of causes of act actions ions shall be between at the the earliest possible opportunity and in all cases where issues are settled, at or before before such settlement, unless unless the ground of objection has subsequently arisen, and any such objection objection not s taken shall be deemed deemed to have been waived. 10

Separate tria tri a : Where it appears to the Court that the joinder of causes of action in one suit may may embarrass or delay the tr ial ial or is otherwise inconvenient, the Court may order separate trials or make such other such other orders as may be expedient expedient in the interests of justice. PLEADING (ORDER (ORDER VI)

Meaning: Ac According cording to order VI Rule 1, pleading shall mean plaint or written statement.

"Pleadings are are statements in writing drawn up and filled by each party to a case, stating stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order order to prepare 21 his case in ans answer.

In proceedings proceedings before a Civil Court pleading may include a petition and reply thereto by the respondent the respondent whether to the the form of an affidavit or otherwise. Plaintiff's pleading is called a plaint while the defendant's the defendant's pleading is called a Written Statement

Object: The object of pleading is to bring parties to definite issues and to diminish expense and delay and to Object: The prevent surprise at the hearing. "The object of the rule is twofold. First is to afford the other side intimation regarding the particular facts of his case so that they may be met by the other side. Second is to enable the Court to determine what is really 22 the issue issue betwe between en the parti parties. es."" "Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met to enable Courts to determine what is really at issue between parties, and to 23 prevent deviations from the course which litigation on particular particular causes of action must lie.

31

The entire law governing the "Pleading" is contained in the provisions of Order VI (Pleading), Order VII (Plaint) and Order VIII (Written Statement) of the Code. Apart from this some important fundamental procedural matters relating to the practice are the provisions of Order I (Parties to suit), as to the manner in which a suit should be framed Order II (Frame of suit), as to who should sign the pleading Order III and Order IV (Institution of suit) and as to taking out of summons and their services Order V. V. Fundamental Rules of Pleading: The Pleading: The general rule regarding the pleadings is as under:

S U K M A K 1)

Ple lead adin ing g mus ustt sta tate te fa fac cts an and d no nott la law w;

2)

Onl nly y the ma matter eria iall fac acts ts mus ustt be st stat ated ed;;

3)

Ple lead adin ing g sho shoul uld d not not in incl clud ude e the the ev evid iden enc ce, an and d

4)

The fac actts sta statted mus ustt be in co conc ncis ise e for form. m.

Material Facts: The Facts: The facts are of two types: 1)

Facts probanda: the facts required to be proved (material facts); and

2)

Facts probantia: the facts by means of which they are to be proved (particulars or evidence). evidence).

It is the fundamental fundamental rule of pleading that pleadings must include the material facts a and not not the facts by means of which which they are to be proved i.e., evidence. The term material facts has not been defined defined in the code, but the the expression "material facts" has been defined by the Hon'ble S.C. in Udha Udhav v Singh V/s Madhav Rao Scinda Rao Scinda AIR AIR 1977 that "all the primary facts which must be proved at the trial by a party to establish the existence the existence of a cause of action or his defence are material facts." It means all f acts acts upon which the plaintiffs cause of action or the defendant's defence depends, depends, or all those facts which must be proved in order to establish the plaintiff's right to relief claimed in the plaint or the 24 defendant def defence. 25

Striking out Pleading: out Pleading: (Rule (Rule 16) If the pleading is unnecessary unnecessary,, scandalous, frivolous; or vex vexat atio ious us or tends to prejudice, prejudice, embarrass or delay the fair trial of the suits or is otherwise an abuse of the process process of the 27 Court the Court may, may, at any stage of the proceedings, order to be struck out or amended any matter matter in it.

Signing (Rule (Rule 14) and Verification Rule (15) of Pleadings: Every pleading shall be signed by signed by the party 28 and his pleaders pleaders (if any) or by any person duly authorized to sign the same or to sue or defend on on his his be beha half lf and every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other 29 person proved to the satisfaction satisfaction of the Court to be acquainted with with the facts of the case. The person verifying shall specify what he verifies to his own knowledge and what upon. information received he 30 31 believes believ es to be true. The person person verifyin verifying g shall furnish furnish an affidavit affidavit in support support of his his pleading pleading and the 32 verificati verif ication on shall be signed signed with date and place place at which it was signed, signed, Amendment of Pleading (Order VI, Rule Rul e 17)

As a general rule, material facts and necessary particulars must be stated in the pleadings and the decision cannot be based on the grounds outside the pleadings. But due to various reasons parties have to amend their pleadings for which Order VI rule 17 states as under: ''The Court may at any stage of the proceedings allow either party to alter or amend his pleading s in such

32

manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties, Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial" In order to try a case on its merits and for determining the real question in controversy between the parties the Courts are empowered under 'rule 17 to allow the amendment of the pleadings. Amendment in the pleading may be with the permission of the Court.

S U K M A K Permission to amend when granted: A leave to. amend the pleading will be granted by the Court whereby the amendment no injury will be caused to the opposite party and he can be sufficiently compensated for by costs or other terms to be imposed by the order and where the amendment is necessary for the determination of the real question in controversy and no injustice will be caused to the other party the Court may allow the amendment of the pleadings.

It is true that the t he courts have a very wide discretion in the matter of amendment of pleadings. InGanga In Ganga Bhai V Vijay Kum Kumar ar AIR 1974 SC 1126, the Supreme Court has observed that "the power to allow an amendment is is undoubtedly wide and may at any stage be appropriately exercised in the inter est est of justice, the law of limitation limitation notwithstanding. But the exercise of such far-reaching discretionar y powers is governed by by judicial considerations, and wider the discretion, greater alight to be the the care and circumspection circumspecti on on the part of the Court." Effect of amendment: amendment: Where Where an amendment is allowed, such amendment relates b ack to the date of e suit as originally originally filed. The court must look to the pleadings as they stand after the amendmentand amendment and have out 33 of consideratio consideration n uname unamend nded ed ones ones.. 34

Failure to am amend : If a party remained failed to amend after the order of amendment, within wi thin the time specified for that that purpose in the order or if no time is specified, then within 14 days from the date of date of the order, he shall not later later on be permitted to amend after expiry of the specified time or of 14 days unless unless e time is extended by the court.

Failure to amend amend does not result in the dismissal of the suit and the court has discretion to extend extend the time even after the expiry the expiry of the period originally fixed.

Order under rule 17 is Revisable: An An order granting or refusing amendment is a 'case decided' within the meaning of section 115 arid revisable by the Court. The above order is neither a decree nor appealable order and hence not appealable. Plaint (Order VII)

Introduction: Every civil suit shall be instituted by presenting a plaint to the Court or such officer as it Introduction: Every appoints in that behalf. Plaint is a pleading of the plaintiff.

Meaning: The word has not been defined is the code but it can be said to be a statement of claim, a Meaning: The document, by presentation of which the suit is instituted.

33

Plaint :

Title of the suits Body of Plaint Relief Prayed for

Title of the suits Plaint: Plaint: Body Body of Plaint Relief Prayed for Title: Title of the suit consists of the name of the Court, case number to be given by the office of the Court Title: Title and descriptions of parties.

S U K M A K Body of Plaint: In Plaint: In this part the plaint consists of the facts constituting the cause of action and when it arose.

Reliefs: The plaint shall finally contain the relief which the plaintiff claims either simply or in the end. Every Reliefs: The 35 plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative. Generally,, the plaintiff is not entitled to relie f for which there is l0 foundation in the plaint, except in a case Generally where on the pleadings, issues and evidence the relief is clear because the primary duty of the Court is to do justice and th the e rules of procedure are meant to advance the cause of justice and not to impead it. it. The plaintiff ought ought to be given such relief as he is entitled to get on the facts established on the the basis of the evidence in the the case even if the plaint does not contain a specific prayer for the relief. The equitable equitable relief under Order VII, Rule 7 may be granted even though grounds o n which relief is sought have not not been stated as required by by the rule. Particulars of Plaint: A Plaint: A plaint shall contained the following pa rticulars: 1)

36

a) the name of the Court in which the suit if brought;

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

the name, description and place of residence of the defendant, so far as they can be

d)

ascertained; where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that affect;

e)

the facts constituting the cause of action and when it arose;

f)

the facts showing that the Court has jurisdiction;

g)

the re reli lief ef wh whic ich h the pl plai aint ntif ifff cl clai aim ms;

h)

where the where the plai plainti ntiff ff has all allowe owed d a set of offf or or reli relinqui nquishe shed d a por portio tion n of of his his clai claim m the the amou amount nt so so allowed or relinquished, and a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of Court fees, so far as the case admits.

i)

2)

In cas case e of of reco recover very y suit suit the pre precis cise e amou amount nt cla claime imed d or whe where re it is for the acc accoun ounts ts or mesn mesne e profits or for moveable in the possession of the defendant or for debts, which cannot be 37 determined, determ ined, the the approximate approximate amount amount or value value thereof. thereof.

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3)

The Th e des desc cri ript ptio ion n of of the the im imm mov ovab able le pr prop oper ertty.

4)

The Th e int inter eres estt and and li liab abil ilit ity y of of the the de deffen enda dant nt..

5)

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If the sui suitt is fil filed ed in in the the repre represen sentat tative ive cha charac racter ter it must must sta state te the fac facts ts abo about ut an an actua actuall existing interest of the plaintiff in the subject matter and that all steps necessary have been 40 taken by him to institute such suit.

S U K M A K 6)

The grou The ground nds s upon upon whi which ch the the exe exemp mpti tion on fro from m the the law of lim limit itat atio ion n wher where e the the suit suit is is time time 41 barred.

Return of Plaint (Order 7 Rule 10) Rule 10:

1) Subject Subject to the provisions provisions of Rule Rule 1 GA, the plaint plaint shall at any stage stage of the suit be returned returned to be presented to the Court in which it should have been instituted. 2) Explanation: anation: For For the removal of doubts, it is hereb y declared that a Court of Appeal Appeal or Revision may direct, direct, after setting aside the decree passed in a suit, the return of the plaint under this this sub-rule. 3) Procedure on returning plaint: On returning a plaint the judge shall endorse thereon the the date of its presentation prese ntation and return, the name of the party representing it, and a brief statement of of the reasons for returning returning it.

Rule 10-A: Power of Court to fix a date of appearance in the Court where plaint is to be filed after after its return -

1) Where, in in any suit, after the defendant has appeared, the Court is of opinion that the plaint plaint should be returned, it returned, it shall, before doing so, intimate its decision to the plaintiff.

2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application application to the Court a. b.

specifying the Court in which he proposes to present the plaint after its return, praying that the Court may fix a date for the appearance' of the parties in the said said Court, and

c.

requ re ques esti ting ng th that at th the e not notic ice e of of th the e dat date e so fi fixe xed d may may be gi give ven n to to him him an and d to to the the de defe fend ndan ant. t.

3) Where an applicatio application n is made by the plaintiff plaintiff under sub-rule sub-rule (2), (2), the Court shall, shall, before returning returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it h as no jurisdiction to try the suit,a. fix a date for appearanc appearance e of the parties in in the court in which which the plaint is propose proposed d to be presented, presented, and b. give to the plaintif plaintifff and to the defendant defendant notice notice of such date date for appearance. appearance. Where Where notice notice of the date for appearances is given under Sub-rule (3),4) Where notice notice of he date date for appearanc appearances es is given given under Sub-rule Sub-rule (3) (3) –

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a. It shall not not be necessary necessary for the Court Court in which which the Plaint Plaint is presented presented after after its return, return, to serve the the defendant with a summon for appearance in the suit, unless that court, for reasons to be recorded, otherwise directs, and b. the said notice notice shall be deemed deemed to be a summons summons for the appearance appearance of the the defendant defendant in the suit in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

S U K M A K 5) Where the application made by the plaintiff under Sub-rule Sub-rule (2) is allowed by the Court, the plaintiff plaintiff shall not be entitled to appeal against the order returning the plaint. Rejection of Plaint (Order (Or der 7 Rule 11) 11)

Rule 11: The 11: The Plaint shall be rejected in the following cases:a. Whe Where re it does does not not disclo disclose se a cause cause of of action. action.

b. Where the relief claimed is undervalued, and the plaintiff on being required by the Court Court to correct the valuation valuation within the time to be fixed by the Court fails to do so.

c. Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, stam ped, and the plaintiff on being required by the Court to supply the requisite stamp- paper stamp- paper within the time time to be fixed by the Court, fails to do so.

d. Where the suit appears from the statement in the plaint to be barred by any law. e. Where it is not filed in duplicate. f.

Where the plaintiff fails to comply with the provisions of Rule-9.

Provided that that the time fixed by the Court for the correction of the valuation or for the supply of the requisite stamp- papers papers shall not be extended unless the Court, for reasons to be recorded, is satisfied satis fied that the plaintiff was prevented prevented by the cause of an exceptional nature from correcting the valuation or supplying supplying the requisite stamp-papers, stamp-papers, as the case may be, within the time fixed by the Court and that refusal refusal to extend such time would would cause grave injustice to the plaintiff. Rule 12: Pro 12: Procedure cedure on rejecting plaint: Where a plaint is rejected the judge shall record an order to that effect with the the reasons for such order.

Rule 13: Where 13: Where rejection of plaint does not preclude presentation of fresh plaint: The rejection of the pla int on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. 42

Procedure Procedur e on Admi Admitting tting Plai Plaint nt : Where the plaint of plaintiff has been admitted and the Court directs that the summons be served on the defendant as provided in Order V, Rule 9, the Court will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within 7 days from the date of such order along with requisite fee for service of summons on the defendants. 43

Production of Documents Documents on Which Which Plaintiff Plaintiff Sues or Relies :

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1. Where a plaintif plaintifff sues upon a document document or relies relies upon document document in his posses possession sion or power power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. 2. Where any such such document document is not in the possession possession or power power of the plaintiff, plaintiff, he shall, shall, wherever wherever possible, possible, state in whose possession or power it is.

S U K M A K 3. A documen documentt which ought ought to be produced produced in Court by the plaintif plaintifff when the plaint plaint is presented, presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court,. be received in evidence on his behalf at the hearing of the suit. But, the the provision provision of Rule Rule 14 shall not not apply to the the following following document documents s44 :

i) the documen documentt produced produced for for the cross examin examination ation of the plaint plaintiff iff witne witness, ss, or ii) ii) handed handed over over to a witness witness merely merely to to refresh refresh his memor memory y.

Written Statement Statement (Order VIII)

Meaning: A Written Statement is a pleading of the defendant for submission of every material Meaning: A material fact to answer the allegation allegation made by the plaintiff in his plaint. The word has not been defined in the code, but the same may be defined be defined as under:

A Written Sta Statement tement is the pleading of the defendant wherein he deals with every material fa fact ct alleged by the plaintiff in his in his plaint and also states any new facts in his favour or takes legal objections against against the claim of the plaintiff .

Preparation of Written Statement: All Preparation of Statement: All relevant rules of pleading apply to a Written Statement and Statement and it should be prepared with great caution. In the Written Statement firstly, firstly, the defendant should mention the mention the name of the Court trying trying the suit, then-1the names of the parties. It is not necessary to mention the names, names, directions and place of residence of all the parties in the title of the Written Statement, but mentioning the name the name of the 1st plaintiff and and 1st defendant is enough. The number of suit may be mentioned thereafter.

The defendant defendant thereupon replies to each Para of the plaint except where any preliminary objection objection like maintainability maintainabili ty of the suit, locus standi of the plaintiff to file suit, the non-joinder or misjoinder of parties as to st the jurisdiction jurisdiction of the Court or as to limitation, for consideration which is necessary in the 1 'ns 'nstance tance before the suit is tried on merits.

Rules of Defence: The Defence: The denial in a Written Statement must be specific and not general. The grounds alleged by the plaintiff must be denied by a defendant specifically with each allegation of fact of which he 45 does not not admit admit the truth, excep exceptt damages. damages.

The denial should not be vague or evasive. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadin g of the defendant, shall be taken o be 46 admitted admit ted except except as regards a person person under disability disability..

In cases where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts in the plaint except as against a person under disability, but the Court, in its 47 discretion, may require any such fact to be proved. Whenever a judgment is pronounced under Rule 2, a,

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48

decree shall shall be drawn drawn up in accordance accordance with with such judgment judgment..

Time to File Written Statement: The Statement: The defendant shall file his Written Statement of his defence within 30 days from the date of service of summons on him, but the above time may be extended by the Court further 49 for a period, which which shall not be later later than 90 Days from from the date of service service of summons. summons. Extension of time to Present Written Statement: Ordinarily the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired.

S U K M A K The extension of time shall be only by way of exception and for reasons to be recorded in writing, how soever brief they may be, by the Court. 50

Subsequen Subseq uentt Pleadin Pleadings gs : According to Order VIII, Rule 9, no pleading subsequent to the Written Statement of a defendant other than by way of defence to set off or counter - claim shall be presented except by the leave the leave of the Court, but the Court may, at any time require a Written Statement or additional Written Statement Statement from any of the parties and fix a time of not more than 30 days for presenting the presenting the same.

Failure to pr esent esent Written Statement: Where Statement: Where a party fails to file a Written Statement as required required under Rule 1 or Rule Rule 9 within a time permitted or fixed by the Court, the Court shall pronounce judg judgment ment against him or make such order as it thinks fit and on such judgment a decree shall be drawn up. The provisions provisions regarding duty of defendant to produce documents upon which relief is claimed claimed or relied upon by him have been given in Order VIII, Rule 1-A. Set-Off (Order (Order VIII, Rule 6)

Meaning: Set-off Meaning: S et-off means a claim set up against another. It is a counter claim against the plaintiff p laintiff but in essence it is a form of defence in which the defendant while acknowledging the justice of the plaintiffs plaintiffs claim sets up a demand demand of his own to counter balance it either in whole or in part. The dorctrine of dorctrine of set – off is included in Order VIII, Rule 6 and is as under:

1. Where in a suit for recovery of money the defendant claims to set-off against the plaintiff's demand plaintiff's demand any ascertained sum of money legally recoverable b y him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both pa rties fill the same character as they fill in the plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted b y the Court, present a written statement containing the particulars of the debt sought to be set-off. 2. Effe Effect ct of se sett-of off: f: The The written statement shall have the same effect as a plaint in a cross- suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this not after the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

3. The rules relating relating to a written written statement statement by a defendant defendant apply apply to a written written statement statement in answer answer to a claim of a set-off.

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Example : A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1000. The two claims both definite, pecuniary demands may be set-off. A sues B for compensation on account of trespass. B holds a promissory- note for Rs. 1,000, from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so, for as soon as A recovers, both sums are definite pecuniary demands. 52

defendant may claim a set-off, if the following conditions are satisfied:Cond Co ndit itio ions ns : A defendant

S U K M A K I. The suit must be for the recovery of money. money. II. The sum of money must be ascertained. III. Such sum must be legally recoverable.

IV.. It must be recoverable by the defendant or by all the defendants, if more than one. IV

V. It must be recoverable by the defendant from the plaintiff or from all plaintiffs'; if more than one. VI. It must m ust not exceed the pecuniary jurisdiction of the Court in which the suit is brought.

Both the parties parties must fill in the defendant's claim to set-off, the same character as they fill in the in the plaintiffs suit.

Equitable set-off: se t-off: The The provision of Rule 6 are not exhaustive. Order VIII, Rule 6 deals with legal with legal set-off while Order XX, XX, Rule 19(3) recognizes an equitable set-off.

An equitable equitable set-off set-off may be claimed by the defendant in respect of an unascertained sum su m of money, provided that both that both the cross demands arise out of one and the same transaction or are so connected, connected, in the nature and circumstances, circumstances, that they can be looked upon as parts of one transaction.

Example: A sues B to recover Rs. 25,000/- under a contract, B can claim set-off towar ds ds damages sustained by him by him due to breach of the same contract by A. Distinction between between legal and equitable set-off: Basis of Distinction

Legal Set - Off

Equitable Set-off

1. Claim for

A legal set-off must be for an ascertained cu cum of of money.

An Equitable set-off may be allowed even fo for an un unascertained su sum of money

2. As Ri Right ght

A le legal gal se sett-of offf ca can n be cl clai aime med d as a right and the court is bound to ente en tert rtai ain n an and d ad adju judi dica cate te up upon on it it..

An equ equit itab able le se sett-of offf ca cann nnot ot be claimed as a right and it is granted at the th e co cour urt’ t’s s di disc scre reti tion on an and d th the e co cour urtt

may refuse to adjudicate upon it 3. Same Tr Transact ansaction ion

In a legal set-o set-off, ff, it is not neces necessary sary

An equita equitables bles set-of set-offf can be allow allowed ed

that the cross demands arise out of

only when the cross- demands arise

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4. Le Lega gall lly y Re Reco cove vera rabl ble e

out of the same trans nsa actions.

out of the same transactions.

The Th e am amou ount nt cl clai aime med d as se sett-of offf

In ca case ses, s, wh wher ere e th ther ere e is a fi fidu duci ciar ary y

must mu st be le lega gall lly y rec recov over erab able le and and

rela re lati tion onsh ship ip bet betwe ween en the the pa part rtie ies, s, a

should not be time barred.

time barred claim may be allowed by way of equitable set-off. But even

S U K M A K in cases of equitable- set-off where

the defendant's claim was not barred at the date of suit but it is barred at the

date of W.S., it will be allowed only to the extent of plaintiff's claim, and a

decree for balance, if found due to him, shall not be passed in in his favour.

5. Court Fee

A legal set-off requires a Court fee.

No Court fee is required in equitable set-off.

Counter-Claim Counter-Cla im (Rules 6-A to 6-G)

Meaning: It is a claim made by the defendant in a suit against the plaintiff and can be enforced Meaning: It enforced by a cross action. Counter Counter claim is a cause of action in favour of the defendant against the plaintiff.

A counter-cla counter-claim im is a weapon in the hands of a defendant to defeat the relief sought by the plaintiff plaintiff against him and may be may be set-up only in respect of a claim for which the defendant can file a separate separate suit and therefore, it is substantially is substantially a cross action.

In Laxmidas VIs Laxmidas VIs Nanabhai AIR 1984, 'SC. it was held that the Court has power to treat the counter counter claim as a cross suit suit and hear the original suit and counter claim together if the counter claim is properly properly stamped. Order VIll, Rule Rule 6-A deals with the counter claim, which is as under:

a. A defendant in a suit may may,, in addition to his right of pleading a set-off under rule 6, set up, by way of counter- claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered defence or before the time limited for delivering his defence has expired whether such counter claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

b. Such counter counter claim claim shall be the same same effect effect as a cross- suit suit so as to enable the Court Court to pronounce pronounce a final judgment in the same suit, both on the original claim and on the counter claim. c. The plaintiff plaintiff shall shall be at a liberty to file a written written statement statement in answer answer to the counter-clai counter-claim m of the defendant defendant within such period as may be fixed by the Court.

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d. The counter-cla counter-claim im shall be treated treated as a plaint and governed governed by the rules rules applicable applicable to the plaints. plaints. Rule 6 B: Counter Claim to be stated: Where any defendant seeks to reply upon ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counterclaim. Rule 6 C : Exclusion of Counter Claim: Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the-plaintiff may, at the time before issues are settled in relation to the counter-claim, apply to the Court which may, on the hearing of such an application make such an order as it thinks fit.

S U K M A K Rule 6 D: Effect of discontinuance of suit: If suit: If in any case in which the defendant sets up a counter claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with. Rule 6 E : Default Default of plaintiff to reply Counter- Claim: If Claim: If the plaintiff makes default in putting putting in a reply to the counter claim claim made by the defendant, the Court may pronounce judgment against the plaintiff plaintiff in relation to the counter counter claim made against him, or make such order in relation to the counter claim as it thinks thinks fit.

Rule 6 F : Relief R elief to defendant where Counter Claim succeeds: Where in any suit a set-off set-off or counterclaim is established established as a defence against the plaintiff's claim and any ba lance is found due to the the plaintiff or the defendant, defendant, as the case may be, the Court may give judgment to the party e'1titled to such balance. balance.

Rule 6 G : Rules R ules relating to written statement to apply : The rules relating to a written statement statement by a defendant shall shall apply to a written statement filed in answer to a counter claim.

Rule 7: Defence Defence or set-off or counter- claim founded upon separate grounds: Where the the defendant relies upon several several distinct grounds of defence of set-off or counter - claim founded upon separate separate and distinct facts, they facts, they shall be stated, as far as may be separately and distinct. Distinction between between Set-off and Counter-cla Counter-claims ims Basis of Distinction

Set-off

Counter-Claim

1. Natur Nature e

It is stat statutory utory defenc defence e to a plaint plaintiff’ iff’s s actions.

It is subst substantial antially ly a cross cross-- action

2. Same Transaction:

It must be either for an ascertained sum or must arise out of the same transaction.

It need not arise out of the same transaction.

3. Date for recovery

In legal set-off the amount must In it the amount must be recovered of amount: be recoverable at the the date of the suit. at the date of Written Statement. Statement.

4. Demand:

The defendant's demand for an amount below or up to the suit

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Where -the demand is for a larger

5. Ground of:

claim is a setoff in strict sense.

amount the claim for excess amount is really a counter.

It is a ground of defence to the plaintiff' plaint iff's s action action which if establis established, hed, would afford an answer to the plaintiff's claim in toto (as a whole) or protanto (in proportions)

It is a weapon of offence which enable the the defendant defendant to enforce enforce the claim against the plaintiff effectually as an independent actions.

S U K M A K SUITS BY INDIGENT PERSONS (ORDER XXXIII)

Introduction: The provision relating to suits by an indigent person is contained in Order XXXIII, having Introduction: The rules which provide various provisions regarding the purpose, procedure, examination of applicant, rejection of application etc. The general rule for the institution of a suit is that a plaintiff suing in a Court of law is bound to pay Court-fees prescribed under the Court Fees Act at the time of presentation of plaint. Order XXXIII is an exception to the above rule and exempts some (poor) persons from paying the Court fee at the time of institution institution of the suit i.e. at the time of presentation of plaint and allows prosecuting his suit his suit in forma pauperis, sub ject to the fulfillment of the conditions laid down in this Order. Meaning of Indigent Indigent Person: An Person: An indigent person is one who is not possessed of sufficient means means due bad personal economic economic condition. The word 'person' includes juristic person. According to Explanation Explanation f Rule 1, Order XXXIII, XXXIII,

An indigent person is a person, who

a. if he is no nott possessed of sufficient means (other than property exempt from attachment in execution of a decree and and the subject matter of the suit) to enable him to pay the fee prescribed by law for for the plaint in such suit, or

b. where no no such such fee is prescribed, if he is not entitled to property worth one thousand rupees rupees other than the property property exempt from attachment in execution of a decree, and the Subject matter of the the suit. Explanations Explanation s II and III read as under -

Explanation -II: Any Explanation-II: Any property, which is acquired by a person after the presentation of his application a pplication for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III: III: Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.

Procedure to sue as Indigent Person: Before an indigent person can institute a suit, permission 0 Court to sue as an indigent person is required. As per rule 3, the application for permission to sue as a indigent person, shall be presented to the Court by the applicant in person, u nless he is exempted from appearing in court, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person:

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PROVIDED that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs. Contents of Application: Application: Every Every such application shall contain the following particulars:a. the particulars particulars required in regard to plaints plaints in suits; b.

a schedule of any moveable or immoveable property belonging to the applicant, with the estimated value thereof; and

c.

it shall be signed and verified as provided in Order VI rules 14 and 15.

S U K M A K 53.

The suit commences from the moment an application to sue in forma pauperis paup eris is presented According to Rule 1-A, an inquiry to ascertain whether or not a person is an indigent person shall be made.

Rule 1-A : Every : Every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, instance, by the chief ministerial officer of the court, unless the court otherwise directs, and the court may adopt the the report of such officer as its own finding or may itself make an inquiry into the question. question. Examinatio n of Applicant and Rejection of Application: Examination Examination: Examinatio n: (Rule 4)

1. Where th the e application is in proper form and duly presented, the court may if it thinks fit, examine the applicant,, or his agent when the applicant is allowed to appear by agent, regarding the merits of the applicant claim and the and the property of the applicant.

2. If present presented ed by agent, court may order applicant to be examined by commission - Where the the application is presented presented by an agent, the court may, if it thinks fit, order that the applicant be ex amined by a commission commiss ion in the manner in which the examination of an absent witness may be taken. Rejection of Application: Application: Rule 5: The 5: The court shall reject an application for permission to sue as as an indigent person – 1.

Where it is not framed and presented in the manner prescribed by rules 2 and 3, or

2. 3.

Where the applicant is not an indigent person, or Where Whe re he he has, has, wit within hin two mon months ths nex nextt befor before e the the pres present entati ation on of of the the appl applica icatio tion, n, disp dispose osed d of any property fraudulently or in order to be able to apply for permission to sue as an indigent person:

PROVIDED that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or

4.

Wher Wh ere e his his al alle lega gati tion ons s do do not not sh show ow a cau cause se of ac acti tion on,, or or

5.

Where he Where he has has ente entered red int into o any any agree agreemen mentt with with ref refere erence nce to the sub subjec jectt matt matter er of of the the propo proposed sed sui suitt under which any other person p erson has obtained an interest in such subject matter, or

6.

Where Whe re the the alle allegat gation ions s made made by the app applic licant ant in the the appl applica icatio tion n show show tha thatt the the suit suit wou would ld be be barred barred by

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any law for the time being in force, or 7.

Wher Wh ere e any oth other er pers person on has has ente entere red d into into an agre agreem emen entt with with him him to to fina financ nce e the the liti litiga gati tion on.. 54.

Fixing of Date and Notice to the opposite Party and the Government Pleader being of Where there is ground as stated in rule 5, to reject the application the Court shall fix a day (of which at least ten days' ear notice shall be given to the opposite party and the government pleader) for receiving such evidence as the applicant may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disproof thereof.

S U K M A K 55

Procedure Proced ure at Hear Hearing ing : On the date fixed, the Court shall examine the witness (if any) produced by either party to the matters specified in clause (b), clause (c) and clause (e) of rule 5, and may examine the applicant or his agent to any an y of the matters specified in Rule 5 the Court after hearing the argument hall either allow or refuse to allow the applicant to sue as an indigent person. 56

Procedure Procedur e if Applica Application tion Admi Admitted tted : Where the application is granted, it shall be deemed the plaint in . e suit and the suit suit shall proceed in all other respects as a suit instituted in the ordinary manner,except manner, except at the plaintiff shall not shall not be liable to pay any court fee or fees payable for service of process in respect re spect of any petition, appointment appointment of a pleader or other proceedings connected with the suit. 57

Withdrawal of Pe Perm rmis issi sion on : The Court may, on the application of the defendant, or of the government the government pleader and after giving seven days notice in writing to the plaintiff, withdraw the permission permissiongranted granted to he plaintiff to sue sue as an indigent person on the following conditions: 1. if he is guilty of vexatious or improper conduct in the course of the suit;

2. if it appears that his means are such that he ought not to continue to sue as an indigent person; person; or

3. if he has entered into any agreement with reference to the subject matter of the suit under under which any other person person has obtained an interest in such subject matter.

Realization of Court fees: (Rule 14)

a. Where Indigent person succeeds: (Rule succeeds: (Rule 10) Where the plaintiff succeeds in the suit, s uit, the court shall calculate the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject matter of the suit.

b. Where Where Indi Indigen gentt person person fai fails ls:: (Rule 11) Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed,-

I. because the summons for the defendant to appear and answer answer has not been served upon him in consequence of the failure of the plaintiff to pay the court fee or postal charges (if any) chargeable for such service or to present copies of the plaint or concise statement, or II. because the plaintiff does not appear when the suit is called on for hearing, the court shall order the

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plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. c. Where Where an indigen indigentt person's person's suit suit abates abates :(Rul :(Rule e 11.A) 11.A) Where Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the court shall order that the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person shall be recoverable by the State government from the estate of the deceased plaintiff.

S U K M A K According to to rule 15, where the application to sue as an indigent person is refused, it shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; b ut the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided he pays the costs incurred by the Government Pleader and the opposite party in opposing in application. When an application is either rejected under rule 5 or refused under rule 7, the Court will grant time to the applicant to pay the requisite Court fee within the specified time or within time extended by the Court from time to time, and upon payment of such Court fee and on payment of the costs referred to in r ule ule 15 within that time, the the suit shall be deemed to have been instituted on the date on which the application a pplication for 58 permission to sue to sue as an indigen indigentt person person was pr.esen pr.esented. ted. The costs of an application for permission to sue as an indigent person and of an inquiry into indigence indigence shall 59 be costs in the the suit. Defence by an indigent person: Rule 17: Any 17: Any defendant, who desires to plead a set off or counter counter claim, may be allowed allowed to set up such claim as an indigent person, and the rules contained in this Order Order shall, so far as may be, apply apply to him as if he were a plaintiff and his written statement were a plaint.

Subject to the the provisions of this order, the Central or State Government may make such supplementary supplementary provisions for for free legal services to those Who have been permitted to sue as indigent per sons,60 sons,60 and where an indigent indigent person is not represented by a pleader, the Court may, if the circumstances of of the case so 61 require, assign assign a ple plead ader er to to him. him. 62

Indigent Per son : A person unable to pay Court fees on memorandum of appeal may apply to allow to allow him to appeal as an indigent an indigent person. The necessary inquiry as prescribed in Ord.er XXXIII will be made before granting or refusing refusing the prayer. But where the applicant was allowed to sue as an indigent pers person on in the trial Court, no fresh inquiry will be necessary if he files an affidavit that he continues to be an indigent person. SUITS IN PARTICULAR CASES

Suits by or Against the Government or the Public Officers in their Official Capacity (Section 79 to 82 and Order XXVII) 63

Title to Suit: The Suit: The authority authority to be named as a plaintiff or defendant, in any suit by or against Government Government shall be. 1. the the Un Unio ion n of of Ind India ia:: Where the suit is by or against the Central Government, or 2. the State: Where the suit is by or against the State Government.

45

Requirement of Notice: Requirement Notice: No No suit shall be instituted, except as provided in sub-section (2) of section 80 against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity unless a Notice in writing has been issued and until the expiration of two 64 months next after notice. Notice to whom: a. Against Government: The Notice Notice issued under section 80(1) shall be delivered to, or left at the office of –

S U K M A K 1)

In the case of a suit against Central Government -

i) ii)

2)

3)

b)

65

a Secr Secretary etary to that Gover Government nment : when it does not relat relate e to a railw railway ay,, and 66 the Gener General al Manage Managerr of Railw Railway ay : when it relate relates s to a railwa railway y. 57

In th the e cas case e of of a su suit it ag agai ains nstt the the St Stat ate e Gov Gover ernm nmen entt of of Jam Jammu mu an and d Kas Kashm hmir ir -

i)

a Chief Secretary to that Government; or

ii)

any other person authorized in this behalf by the State Government. 68

In the case of a suit against against any any other other State State Government Government -

i)

a Secretary to that Government; or

ii)

the collector of the district. 69

Against Agai nst Pub Public lic Off Office icerr : In the case of a suit against Public Officer notice shall be delivered delivered to him or left at left at his office.

Contents of Notice: Notice: The The notice shall contain the following particulars i)

the name, description and place of o f residence of the plaintiff;

ii)

the cause of action; and

iii)

the relief, which the plaintiff claims. 70

Exemption f rom r om No Noti tice ce : A suit may, with the leave of the Court, be instituted to obtain an urgent or immediate relief relief without serving any notice as required under section 80(1).

But, in such suit, the Court shall not grant any relief, whether interim or otherwise; except after giving to the Government or Public Officer, Officer, as the case may be, a reasonable rea sonable opportunity of showing cause in respect of the relief prayed in the suit. It is also provided that the Court shall return the plaint for presentation to it after complying with the requirements of section 80(1), if after hearing the parties, the Court is satisfied that no urgent or immediate relief need to be granted. No Dismissal of suit: Any suit instituted against the Government or such public officer shall not be dismissed, by reason of any error or defect in the notice, if such notice contains-

I. The name, description and residence of the plaintiff, plaintiff, so as to enable the Government Government or such public

46

officer to identify the person serving the notice; II.. II

Notice Noti ce ha has s bee been n del deliv iver ered ed or or lef leftt at at the the of offi fice ces s of of the the ap appr prop opri riat ate e aut autho hori rity ty sp spec ecif ifie ied d U/s U/s 80(1); and

III. II I.

The Th e cau cause se of ac acti tion on an and d the the re reli lief ef cl clai aime med d hav have e bee been n sub subst stan anti tial ally ly in indi dica cate ted. d.

Procedure in Suit:

S U K M A K Signature and Verification of Plaint Or Written Statement

Agent and Authorized Agent: The Agent: The Court shall allow a reasonable time in fixing a day for the Government to answer the plaint, for the purpose of necessary communication with the Government through proper channel and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government. The time so allowed may, may, at the discretion of the Court, be extended but the time so extended 71 shall not not exceed exceed two two months months in the aggregat aggregate. e. Where in any any case the Government Pleader is not accompanied by any person on the the part of the Government,, who may be able to answer any material. questions relating to the suit, the Court Government Court may, direct 72 the attendance attendance of of such such a pe pers rson on..

Duty of Court: Court: It It shall be the duty of the Court to make every endeavour, if possible to do so consistently so consistently with the nature nature and circumstances of the case, to assists the parties in arriving at a settlement in settlement in respect of 73 the subject-matter subject-matter of the the suit and in every every such suit suit or proceeding, proceeding, at any any stage, ifif it appears appears to the Court that there is is a reasonable opportunity of settlement between the parties, the Court may may adjourn the 74 proceeding f or or such period, as it thinks fit, to enable attempts to be made to effect such a sett settie ieme men n The power to adjourn adjourn proceeding under sub-rule (2) shall be in addition to any other power of the Court to 75 adjourn proce proceedings. Procedure in i n Suit against Public Officer: The Officer: The defendant (public officer) on receiving the summons summons may apply to the Court Court to grant the extension of time fixed in the summons, to enable to him to make reference make reference to the Government, Government, and to receive orders thereon through the proper channeF6 a nd the Court shall, shall, on such 77 application extend extend the time for so long as it appears to it to be necessary.

The Government Government shall be joined as a party to the suit, where the suit is instituted against the public public officer for damages or for any other relief in respect of any act alleged to have been done by him in his official 78 capa ca paci city ty..

Where the government undertakes the defence of a suit against a public officer, officer, the government pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such 79 application the Court shall cause a note note of his authority to be entered in the register of civil suits. Where no application under sub-rule (1) is made by the government pleader on or before the day fixed in the 80 notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties. No need of security from government or a public officer in certain cases: No such security as is mentioned in rules 5 and 6 of order XLI shall be required from the government or, where the government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done

47

by him in his official capacity. 81

Exemption from from Arrest, Arrest, Personal Personal Appearance Appearance and and Attachment Attachment of Properly Properly : According to section 81 of the Code, if the suit is against a public officer in respect of any act purporting to be done by him in his official capacity – a.

the def defend endant ant sha shallll not not be be liabl liable e to arr arrest est nor his pro proper perty ty to to attac attachme hment nt othe otherwi rwise se than than in execu executio tion n of a decree, and

S U K M A K b.

where the where the cour courtt is sat satisf isfied ied tha thatt the the defenda defendant nt cann cannot ot abse absent nt hims himself elf fro from m his his duty duty with without out det detrim riment ent to the public service, it shall exempt him from appearing in person. 82

Executio Execu tion n of de decre cree e : Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be do ne by him in his official capacity, any decree passed against the Union of India or a State or, as the case may be, the public officer, shall not be executed except in accordance with 83 the provisio provisions ns of sub-s sub-sectio ection n (2) of S. 82. 82. i.e.

An execution shall execution shall not be issued on any such decree unless it remains unsatisfied for the period period of three 84 months compute computed d from from the date date of of such such decrep decrep.. The provisions provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they they apply in relation to a decree, decree, if the order or award85 – a.

is passed or made against the Union of India or a State or a public officer in respect of any such act as aforesaid, aforesaid, whether by a Court or by any other authority; and

b.

is capable of being executed under the provisions of this Code or of any other law for the the time being in force force as if it were a decree.

Definition of of 'Government' and 'Government Pleader': Rule 8-8 of Order XXVII provides that in Order XXVII 'Gover nment' nment' and 'Government Pleader' mean respectively" i.

in relation to any suit by or against the Central Government or against a public officer in the service 86 of that that Government- the Central Government and such pleader as that Government may may app appoi oint nt .

ii. in relation relation to any suit by or against against a State State Governmen Governmentt or against a public public officer officer in the service service of a State- the State Government and such Government pleader as defined in Section 2(7), or such 87 other pleader as the State Government may ,appoint.

Inter Pleader Suit (Section (Sectio n 88 and Order XXXV)

Meaning: An interpleader suit is a suit in which the real dispute is not between the plaintiff and the Meaning: defendant but between the defendants only and the plaintiff is not really interested in. the subject matter of the suit. Object: The Object: The primary object of instituting an interpleader suit is to get claim of rival defendants adjudicated. 88

Principle: According Principle: According to Section-

48

"Where two or more persons claim adversely to one another the same debts, sum of money or other property, moveable or immoveable, from another person, who claims no interest therein other than for charges and costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself: Provided that where any suit is pending in which the -rights of the parties can properly be decided, no such suit of interpleader shall be instituted.

S U K M A K Conditions for Application Application:: Before the institution of aninterpleader suit, the following conditions must be satisfied:

a. Existence of some Debt, Money or Moveable Moveable or Immoveable Property: there must be some some debt, sum of money or other moveable or immoveable property in dispute; b. Adverse Claim by two or more persons: two or more persons must be claiming the above debt, debt, money or property, adversely property, adversely to one another;

c. The person from whom the debt, money or property is being claimed should not be interested interested in it: the person fr om om whom such debt, money or property is claimed, must not be claiming any interest interest therein other than than the charges and costs: d. The above person must be ready to deliver it: The above person must be ready to pay or deliver deliver it to the rightful claimant; claimant; and

e. No Pendency of Suit: there must be no suit pending in which the rights of the rival claimants claimants can be properly decided.

Who may not not institute an interpleader suit? An Agent or Tenant:

An agent can cannot not sue his principal or a tenant his landlord for the purpose of compelling themto them to interplead 88 with persons claiming persons claiming through through such principals principals or landlords, landlords, becaus because e ordinarily ordinarily, an agent cannot cannot dispute the title of his his principal and a tenant cannot dispute the title of his landlord during the subsistence subsistence of 89 tena te nanc ncy y. Illustrations: A Illustrations: A deposited a box of jewels with 8 as his agent: a.

C alleges that the jewels were were wrongfully obtained from him by A, and claims them from B. 8 cannot institute an inter pleader suit against A and C. (C claims adversely to A, and therefore, no inter pleader suit can file.)

b. He then writes to C for the the purpose of making the jewels a security security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied, and C alleges the contrary contrary.. 80th claim the jewels from B. B may institute an interpleader suit against A and C. (C claims through A and , therefore, it can file.) Procedure in Inter pleader Suit: Order XXXV provides the procedure for the institution of an interpleader

49

suit. 90

Plaint in Plaint in Interp Interplead leader er Suit : In every interpleader suit the plaint in addition to other statements necessary for plaint, state – a.

thatt the tha the plain plaintif tifff clai claims ms no no inter interest est in the the subj subject ect mat matter ter in disp dispute ute oth other er than than the cha charge rges s or cos costs; ts;

b. c.

the cl the clai aims ms ma made de by th the e de defe fend ndan ants ts se seve vera rall lly; y; an and d ther th ere e is is no no col collu lusi sion on be betw twee een n the the pl plai aint ntif ifff and and any of th the e def defen enda dant nts. s.

S U K M A K Payment of thing claimed into Court: The Court may order the plaintiff to place the thing claimed in the 91 custody of the the Court when the the thing is capable capable of being paid into Court or placed in the custody custody of Court 92 and provide provide his costs costs by giving giving him a charge charge on the thing thing claimed. claimed.

Procedure where defendant is suing plaintiff (Stay of Proceedings): 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 shall, on being informed by the Court in which the interpleader suit has been been instituted, stay the proceeding as against him; and his cost in the suit so stayed stayed may be provided for in in such suit; but if, and in so far as, they are not provided for in that suit, they may be may be added to 93 his costs incurre incurred d in the inte interpl rplead eader er suit. suit. Procedure of of First Hearing: 1. At the first hearing, the Court may-

a. Declare that the plaintiff is discharged from ali liabilities to the defendants in respect respect of the thing claimed, claim ed, award him his costs and dismiss him from the suit; or b. if it thinks that justice or convenience so require, retains all parties until the final disposal disposal of the suit.

2.

Where the Court finds that the admission of the p arties or other evidence enable the Court Court to do so, it may adjudicate may adjudicate the title to the thing claimed.

3.

Where the admissions of the parties do not enable the Court so to adjudicate the Courtmay Court may direct -

a) b)

that an issue or issues between the parties be framed and tried, and that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall shall proceed to try the suit in the ordinary manner.

IMPORTANT QUESTIONS Q.1.

Define pleading. What are the fundamental rules of pleading? Discuss fully fully..

Q.2.

What is plaint? What are the necessary particulars to be given in a plaint? On what grounds a plaint can be rejected?

Q.3.

Who is an indigent indigent person? person? Discu Discuss ss the the mode for the the institutio institution n of the the suit suit as an an indigent indigent person. person.

Q.4.

What are are the provisi provisions ons for insti institutio tution n of a suit suit by or agains againstt the Govern Government ment or public offi offices ces in their their

50

official capacity? Q.5.

What is an Inter Interpleader pleader suit? Expla Explain in the the procedure procedure for instit institution ution of an Inter Interpleader pleader suit?

Q.6 .6..

Expl plai ain n the the fol follo low win ing g– a) Representative suit b) Counter claim and Set off

S U K M A K c) Cause of Action

d) Necessary and Proper Party

e) Joinder and Mis-Joinder of parties f) Parties to suit

Q.7. Q. 7.

Distin Dist ingu guis ish h bet betwe ween en th the e fol follow lowin ingga) Legal and Equitable Set-off b)

Counter claim and Set off

References: 1.

Order I, Rule 6

2.

Order I, Rule 7

3.

Order I, Rules 2 and,3-A

4.

Rule 4 (a)

5.

Rule 4(b)

6.

Rule 9

7.

Order I, Rule 10

8.

Rule 10(1)

9.

Rule 10(2)

10.

Rule 10(4)

11.

Rule 10(5)

12.

Order VIII, Rule 1

13.. 13

Rul ule e 8( 8(1) 1) (a (a)) an and d Rul ule e 8( 8(1) 1) (b (b))

14.

Rule 8(2)

15.

Rule 2(3)

16.

Rule 2(3)

17.

Rule 2(2)

18.

Rule 2 and 6

19.

Rule 7

20.

Rule 6

21.

Mogha's Law of plea ead dings.

22.. 22

Vir iren endr dra a V. V. Vin Vinay ayak ak AIR 199 1999 9 SC. SC.

51

23.. 23

Gane Ga nesh sh Tra radi ding ng Co. Co. Vs. Vs. Mo Moji ji Ram Ram AI AIR R 1978 1978 SC. SC.

24.. 24

Unio Un ion n of of Ind India ia V/ V/s s Sit Sita a Ram Ram AI AIR R 197 1977 7 SC SC

25.

Rule 16 (a)

26.

Rule 16 (b)

27.

Rule 16 (c)

28.

Rule 14

S U K M A K 29.

Rule 15 (1)

30.

Rule 15 (2)

31.

Rule 15 (4)

32.

Rule 15 (3)

33.. 33

Brij Br ij Kis Kisho hore re v. v. Smt Smt.. Kha Khato toon on,, AIR AIR 197 1976 6 All All

34.

Order VIII, Rule 17

35.

Order VII, Rule 7

36.

Order VII, Rule 1

37.

Order VII, Rule 2

38.

Order VII, Rule 3

39.

Order VII, Rule 4

40.

Order VII, Rule 4

41.

Order VII, Rule 6

42.

Order VII, Rule 9

43.

Order VII, Rule 14

44.

Order VII, Rule 44(4)

45.

Order VII, Rule 3

46.

Order VII, Rule 4

47.


48.


49.

Kailash VIs Nanku (2005) 4 Sec, see also Aditya Hotels (P) Ltd. VIs Bombay Swedesh Swedesh Stores Ltd.

(2005) 3 Supreme

50.

Order VIII, Rule 9

51.

From C. K. Tackwani

52.

From C. K. Tackwani

53.

Vijay Pratap Singh v Dukh Haran Nath, AIR 1962, SC

54.

Order XXXIII, Rule 6 -S. Order XXXIII, Rule 7

56.

Order XXXIII, Rule 8

57.

Order XXXIII, Rule 9

58.

Rule 15-A

59.

Rule 16

52

60.

Rule 18

61.

Rule 9-A

62.

Order XLIV

63.

Section 79

64.

Section 80(1)

65.

Section 80 (1) (a)

S U K M A K 66.

Section 80 (1) (b)

67.

Sect Se ctio ion n 80 (1 (1)) (bb) (bb) 8. 8. Sec Secti tion on 80 80 (1) (1) (c) (c) ~9 ~9.. Sec Secti tion on 80 80 (1) (1)

70.

Section 80(2)

71.

Order XXVII Rule 5

72.

Order XXVII Rule 6

73.

Order XXVII Rule 5-B (1)

74.

Order XXVII Rule S-B (2)

75.

Order XXVII Rule 5-B (3)

76.

Order XXVII Rule 7(1)

77.


78.

Order XXVII Rule 5-A 5- A

79.


80.


81.

Section 81

82.

Section 82

83.

Section 81(1)

84.

Section 81 (2)

85.

Section 81 (3)

86.

Order XXVII Rule 8-B (a)

87.

Order XXVII Rule 8-B (c)

88.

Order XXX Rule 5

89.. 89

Sec ecti tion on 116 In Indi dian an Evid iden ence ce Act

90.

Order XXX Rule 1

91.

Order XXX Rule 2

92.

Order XXX Rule 6

93.

Order XXX Rule 5

53

UNIT - III SUMMONS AND DISCOVERY, DISCOVERY, ISSUE OF SUMMONS SUMMON S (SECTION 27 TO 29)

S U K M A K (An intimation sent to the defendant/witness by the Court) To Defendant Defenda nt (Order 5) and To Witnesses Witnesse s (Order 16) 5) and To

1

Meaning: The word summons has not been defined in the Code, but according Meaning: The according to the dictionary meaning; "A summons summons is a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend before a judge or office of the court for a certain purpose." Essentials of o f summons: Every summons: Every summons shall be signed by the judge or such officer appointed appointed by him and shall be sealed with the seal of the court [Rule1 (3)] and every summons shall be accom accompanied panied by a plaint or if so permitted, by a concise statement thereof.[Rule 2] Contents of Valid Valid Summons: a. The summons must contain a direction whether the date fixed is for settlement of issues only only or for final disposal of the suit (Rule 5).

b. In cases of summons for final disposal of the suit, the defendant shall be directed to to produce his witnesses witnesse s (Rule 8). c. The Court must give sufficient time to the defendant to enable him to appear and answer a nswer the the claim of the Plaintiff on on the day fixed (Rule 6).

d. The summons shall contain an order to the defendant to produce all documents in his possession possession or power upon upon which he intends to rely on in support of his case (Rule 7). Summons to to Defendant:

Section 27: Where 27: Where a suit has been duly instituted, a summon may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed on such day not be yond 30 days from the date of the institution of the plaint. Order V: Rule 1 (1)

Rule 1(1): When 1(1): When a suit has been b een duly instituted, a summon may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of the service of the summons on that defendant; Provided that no such summon shall be issued when a defendant has appeared at the presentation of Plaint and admitted the plaintiff's claim;

54

Provided further that where the defendant fails to file the written statement within the said period of thirty ways, he shall be allowed to file the same o n such other day as may be specified by the Court, for reasons to be recorded in writing, but bu t which shall not be later la ter that ninety days from the date of service of summons. Appearance of Defendant [Order [ Order V Rule 1 (2)] Rule 1(2) - A - A defendant to whom a summons has been issued under sub-rule (1) may appear

S U K M A K a. in pe pers rson on,, or or

b. by a pleader pleader duly instruct instructed ed and able to answer answer all all material material questions questions relating relating to the the suit, or or

c. by a pleader accompani accompanied ed by some person person able to answer answer all such questions questions.. The Court, Court, however, however, may order the defendant or plaintiff to appear in person (Rule 3).

Rule 1 (3): Every (3): Every such summons shall be signed by the judge or such officer as he appoints, and shall be sealed with the the seal of the Court. Exemption f rom rom Personal Appearance : Order V Rule 4 No party shall shall be ordered to appear in person 1. unless he resides-

a. within the local limits of the Court's ordinary original jurisdiction, or

b. without such limits but at a place less than fifty or (where there is railway or steamer communication communication or other other established public conveyance for five- sixths of the distance between the place place where he resides resid es and the place where the Court is situate) less than two hundred miles distance distance from the Court-house. Court -house. Or 2. Who is a woman not appearing in person (Section 132), or 3. Who is entitled to exemption under the Code (Section 132). 2

Mode of ser vice vice of summon summons: s: Service of summons shall be made by delivering or tendering tendering a copy thereof signed signed by the Judge or such officer as he appoints in this behalf and sealed with the seal seal of the court. The Code prescribes prescribes four principal modes of serving a summons to a defendant: i)

Personal or direct service; (Rules 10 to 15 and 18)

ii)

Substituted Service; (Rules 20, 17 and 19)

iii)

Service by Court; (Rule 9) and

iv)

Service by Plaintiff. (Rule 9-A)

1. Personal or direct service: This is an ordinary mode of service of summons. Under the following categories a service of summons should be made by delivering or tendering a copy thereof3 to the defendant personally or to his agent or other person on his behalf and for the proper service of summons following principles must be remembered-

a. Where there there are two or more more defendants, defendants, servic service e of summons summons should should be made on each defendant defendant

55

(Rule 11). b. Wherever Wherever it is practicab practicable, le, the summon summon must be be served to the the defendant defendant in person person or to his authorized agent (Rule 12). c. In a suit relating relating to any busines business s or work against against a person, person, not residing residing within within the territor territorial ial jurisdiction of the court issuing the summons, it may be served to the manager or agent carrying on such business or work (Rule 13).

S U K M A K d. In a suit for immoveabl immoveable e property property, if the service service of summons summons cannot cannot be made on the defendant defendant personally and the defendant has no authorized agent, the service may be made on any agent of the defendant in charge of the property (Rule 14). e. Where the the defendant defendant is absent absent from his residen residence ce at the time time of the service service of summons summons and there there is no likelihood of him being found at his residence within a reasonable time and he has no authorized agent, the summons may be served on any adult male or female member of the defendant's family residing residi ng with him (Rule 15).

The serving officer (a person to whom the copy is delivered or tendered to serve on the def endant) endant) after 4 making acknowledgment acknowledgment of service of summons must make an endorsement on the original original summons stating the time time and" manner of service thereof and the name and address of the person, if any, any, identifying 5 the person served served and witnessing the delivery or tender of summons . 2.

6

"Substituted Service” means the service of summons by a mode which is substituted substi tuted for the ordinary mode of summons. The circumstances for the substituted service are:a. i) Where the defendant or his agent refused to sign the acknowledgement or

ii) Where the serving officer officer,, after. after. due and reasonable reasonable diligence cannot find th the e defendant, who is absent from his residence at the time when the service is sought to be effected effected on him at his hi s residence and there is no likelihood of him being found at his residence within a reasonable time ti me and there is no authorized agent nor any other person on whom service canbe can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on businessor business or personally works for gain.

The serving officer shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating the fact about affixing the copy, the circumstances under which to do so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed (Rule 17). If the Court is satisfied either on the affidavit of the serving officer or on his examination on oath that the summons has been duly served; or may make further enquiry in the the matter as it thinks thinks fit, and shall either declare that the summon has been duly served or order such service as it thinks fit. (Rule19). In the second mode as provided by Rule 17, the declaration by the court about the due service of the summons is essential. If the provisions of the Rule 19 have not been complied with, the service of summons cannot be said to be in accordance with law.

56

b. Where the Court is satisfied that there is a reason to believe that the defendant is avoiding avoiding the service of summons or for any other reason the summons cannot be served in the ordinary way, the Court shall order that the service may be effected in the following mannerI.

by affixing affixing a copy copy of the summons in some conspicuous place in the court house; and also upon some conspicuous part of the house in which the defendant is known to have last resided, carried on business or personally worked for gain; or

S U K M A K ii. In such manner as the court thinks fit [(Rule 20(1)]; or

iii. By an advertisement in the daily newspaper circulating circulating in the locality in which the defendant is last known to have actually or voluntarily resided, carried on business or personally worked for gain [(Rule 20(1-A)].

Substituted service Under Rule 20 is as effective as personal service [(Rule 20(2)].

3) By Court: Court: Rule Rule 9 of Order V deals with delivery of summons by Court and states that in cases, cases, where the defendantt or his agent, empowered to accept the service of summons, resides within the jurisdiction defendan jurisdiction of the Court in Court in which the suit was instituted, in stituted, the summons shall, unless the Court otherwise otherwise directs, be delivered or delivered or sent to the proper officer or to approved courier services to be served on the defendant. defendant.

Declaration by Court: The Court: The Court issuing the summons shall declare that the summons had had been duly served on the defendant, the defendant, where

a. the defendant or his agent had refused to take delivery of the postal article containing the summons or had had refused to accept that summons by any other means specified in subrule (3) wh when en tendered 7 or transmit transmitted ted to him, and b. Where the summons was properly addressed, pre-paid and duly sent by registered registered post acknowledgment ackn owledgment due, notwithstanding the fact that the acknowledgement having been lost or mislaid, misla id, or for any other reason, has not been received by the Court within 30 Days from from the date of 8 issue of issue of summ summons ons..

4)

9

By Plain Plaintiff: tiff: In addition to the provisions of rule 9, the Court, on the plaintiffs application application may permit and deliver deliver the summons to such plaintiff for service on the d efendant and the provisions of of rule 16 and 18 shall apply to a summons personally served under rule 9-A as if, the person effecting service were a serving officer. 10

Service of summons where defendant resides within jurisdiction of another Court : A summons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Courts to any Court 11 (not being the High Court) having jurisdiction in the. place where the defendant resides.

Where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) of rule 9 (except by registered post acknowledgement due), he provision of 12 rule rul e 21 shal shalll not app apply ly..

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Discovery (5. 30 and Order XI) Section 30 of the Code says that subject to such conditions and limitations as may be prescribed, the Court may,, at any time, either of its own motion on the application of any party,may make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production impounding and return of documents or other material objects producible as evidence.

S U K M A K Meaning of Discovery: Discovery Discovery: Discovery means to compel the opposite party to disclose what he has in his possession or power. The discovery may be either discovery of facts or discovery of documents. Where information as to fact is required, the party is allowed to put a series of questions, known as interrogatories to his adversary.

Where in the opinion of the judge, such proposed questions are proper, then he will compel the other side to answer them on oath before trial. This is called discovery of facts, while where information as to documents is required, then then on the application of the party party,, an order to compel the other party to make a list list of relevant documents in his in his possession or power and for permission to inspect and to take copies of those documents. those documents. This is known known as discovery of documents. Rules 1 to 11 of Order XI deal with the interrogator ies ies while the rules 12 to 14 14 of Order XI deal with the discovery of documents. The Court may postpone a premature 13 disc di scov over ery y. SUMMONING SUMMONIN G AND ATTENDANCE ATTENDANCE OF WITNESSES W ITNESSES (S.31 AND ORDER XVI)

Summons to to Witnesses: According Witnesses: According to section 31, the provisions in sections 27,28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects. Rule 8 of Order Order VXI states that every summons summons under Order VXI, except under rule 7-A, shall be served in the same manner as a summons to a defendant, and the rules rule s of Order V shall apply. Attendance of Witnesses: On Witnesses: On or before such date, which may be fixed by the Court and shall shall not be later than 15 days from days from the date on which issues are settled, a list of proposed witnesses to give evidence evidence or to produce document document and obtain summonses to such persons for their attendance in Court, Court, shall be 14 presented in the Cou Court rt by by the the partie parties. s.

A party shal shalll file an application stating therein the purpose for which the witness is proposed proposed to be summoned to the Court or to such officer as may be appointed by the Court in this behalf within five days of 15 presenting presen ting the the list of of witnesses witnesses under rule rule 1(1).

On being shown sufficient cause for not mentioning that name of the witness in the list produced U/rule 1 (1), a party may be permitted by the Court, to call any witness whose name has not been mentioned in the 16 list of evidence. 17

Expenses of witness shall be paid into Court by a party applying for summons, within a period to be fixed which shall not be later than 7 days18 from the date of making application under Rule 1 (4). Where the summons is served directly by the party on a witness, the party or his agen t shall pay the expenses referred to in rule 2(1) to the witness. Summons given to Party for Service: (Rule 7 -A) On an application of any party for the issue of summons

58

the Court may permit and then, shall deliver the summons to such party for service, and such summons shall be effected by or on behalf of such party by delivering or tendering to the witness personally a copy thereof. The provisions of Rule 6 shall apply to summons to produce documents while the procedure provided in ruIe 10 shall be applicable where witness fails to comply With summons and rule 12 where the witness fails to appear. Where any party to a suit is required to give evidence or to produce a document, the provisions as to 19 witnesses witnes ses shall shall apply apply to him so so far as they they are applica applicable. ble.

S U K M A K Witnesses not to be Ordered to attend in Person: As per rule 19 of Order XVI, no one shall be ordered to attend in person to give evidence unless he resides:a. within the local limits of the Court's Ordinary Original Jurisdiction, or

b. without such limits but at a place less than one hundred or (where there is a railway or steamer steamer communication communi cation or other established public conveyance for five-sixths of the distance between' the place where where he resides and the place where the Court is situate) less than five hundred hundred kilometers distances from distances from the Court house: Provided that that where transport by air is available between the two places mentioned in this rule this rule and the Witness is paid paid the fare by air, he may be ordered to attend in person. APPEARANCE APPEARAN CE OF PARTIES PARTIES AND EFFECT OF THEIR NON-APPEARANCE NON- APPEARANCE (Order IX) I X)

Introduction: Order IX of the Code provides the law with regard to the appearance of the parties Introduction: parties to the suits and the consequences consequences of their non-appearance. Where a party (Plaintiff or Plaintiff and Defendant, Defendant, both) does not appear appear when the suit is called on for hearing, the suit may be dismissed and where where a party (Defendant) does not appear even when the summons is duly served on him, the Court mayOrder may Order for the ex-parte hearing hearing of the suit. Therefore, Order Order IX can be discussed under the following heads:

a. Dismissa Dismissall of Suit: The plaintiff's suit may be dismissed under rules 2, 3, 5(1) and 8 of Or der der IX of the Code, while while the Court may order ex-parte hearing of the suit under rule 6(1) of Order IX.

Rule 2: A 2: A suit may be dismissed under rule 2 if the summons has not been served upon the defendant due to the failure of the plaintiff to pay Court-fee or Postal charges, if any chargeable for such service or failure to present copies of the plaint as required by rule 9 of Order VII. Rule 3: The 3: The Court may dismiss the suit under rule 3 where, both the parties are absent when the suit is called on for hearing.

Rule 5(1): The 5(1): The Court shall pass an order for dismissal of the suit under rule 5(1), where a summons has been returned unserved on the defendant(s) and the plaintiff fails to apply for a fresh summons for a period of seven days from the date of the return of summons made to the Court by the serving officer officer.. But, the Court shall not dismiss the suit under rule 5(1), if the plaintiff satisfies the Court that-

59

a. he has failed failed after using using his best endeavors endeavors to to discover discover the residence residence of the defendant defendant who who has not been served, or b. such defend defendant ant is avoid avoiding ing service service of process process,, or c. there is any any other sufficie sufficient nt cause of extendin extending g the time, and and may extend extend the time for for making such such application.

S U K M A K Rule 8: The 8: The Court shall make an order of dismissal of suit under rule 8, where the plaintiff remains absent and the defendant is present, when the suit is called on for hearing and the defendant does not admit the claim or part thereof.

Remedies against Dismissal: Where Dismissal: Where the suit has been dismissed under rule 2 or 3, the plaintiff has remedies either to file a fresh suit (subject to the law of limitation) under rule 4 or to make an application under rule 4 for restoration of the suit. When the suit has been dismissed under rule 5(1), the plaintiff may bring a fresh suit (subject to the law of limitation) under rule 5(2). When a suit is is dismissed under rule 8, the plaintiff shall be precluded to bring a fresh suit on the same the same cause of action but he but he may apply to set the dismissal aside under rule 9 of Order IX and the Court Cou rt shall, after 20 issuing a notice notice of application application on the opposite opposite party party set aside aside the order of dismissal dismissal,, on beingsatisfied beingsatisfied that there was suf ficient ficient cause for plaintiffs non-appearance when the suit is called on for hearing.

2) Ex- Parte Hearing : Where only the plaintiff appears and the defendant does not appear appear when the suit is is called on for hearing, and the Court observed that the summons was duly duly served on 21 defendant defen dant then then the Court may may pass an order order that the the suit be heard heard ex-parte. ex-parte. Remedie s: The Remedies: The defendant in the same manner may be allowed by the Court to be heard, heard, as if he had appeared on appeared on the day fixed for his appearance, where the Court has adjourned the ex parte hearing parte hearing and he (defendant) (defendant) appears on or before such adjourned date and satisfy the Court with goodcause good cause for his previous non-appearance. Setting aside aside ex-parte hearing: Where hearing: Where in an ex-parte hearing, a decree is passed ex-parte ex-parte against a defendant, defendan t, he .has the following options -

a. To apply under rule rule 13 to set aside the ex-parte ex-parte decree decree and the Court after after service service of Notice22 Notice22 of such application on the opposite party and on being satisfied that the summons was not duly served on the defendant or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. But no such decree shall be set-aside on the basis of irregularity in the service 23 of summons,

When the Court rejects an application under rule 13, such 3n order is appealable under Order XLI Rule 1(d). 24

b. To file appea appeall against against ex-p ex-part arte e decree decree

But when an appeal is preferred against ex-parte decree and the same is dismissed on any ground except as being withdrawn by the appellant, no application shall lie under rule 13 for setting aside

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25

thatt ex-p tha ex-part arte e decr decree. ee. EXECUTION OF DECREES

S. 36 TO 74 AND O. 21: In a suit, after the pronouncement of judgment and passing of decree in respect of the relief given by the Court, the next step is the execution of decree or order. Meaning: "Execution is the enforcement of decrees and orders of the Court by the process of the Court." As a matter of fact, execution is the formal procedure prescribed by law whereby the partly entitled to the benefit of a judgment may obtain that benefit.

S U K M A K Execution of Decree and Order: Section-36 of the Code lays down that the provision of the Code relating to execution of decrees (including provision relating to the payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order). Subject Matter of Execution: The Execution: The subject matter of execution may be either a decree or an order of a Court of competent competent jurisdiction. Every decree or order of a Court cannot be the subject matter of an execution, but but only those decrees and orders are executable which finally determine and enforce enforce the rights of the parties at parties at the date when the decree or order is made. Decree which whic h may be executed: Before executed: Before a decree can be executed, it must be both valid and and capable of execution. The The decree put into execution must not be barred under any law. It is the decree passed passed by the Court of first instance which can be executed but when an appeal has been preferred against against the original decree, it is the the decree of the appellate Court, which alone can be executed. The decrees of the Court the Court of first instance become become merged in the appellate a ppellate Court's decree. The appellate decree whether it confirms, varies or reverses the the decree of original Court, it is the only decree which can be executed. Court by which which decrees may be executed: Section 38

According to S. to S. 38, an executing Court may be either the Court which passed the decree, or the the Court to which the decree decree is sent for execution. The expression expression “Court which which passed a decree” means means – 1)

2)

The Court of first instance -

a)

in case where the decree is passed by the Court of first instance, and

b)

in case of appellate decrees,

The Cour Courtt at the tim time e of exec executi ution on woul would d have have had jur jurisd isdict iction ion to to try try the the suit suit wher where e the Cou Court rt of of first first

instance has either ceased to exist or ceased to have jurisdiction to execute the decree.

Explanation to S.37 says that

The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred form the jurisdiction of that Court; but, in every such case, such other Court shall also a lso have jurisdiction to execute the decree, if at the time of making application for execution o f the decree it would have jurisdiction to try the said suit.

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Application for Execution: The Execution: The execution proceedings commence with the filing of an application for execution before the Court, which passed the decree, or before the Court to which the decree has been transferred for execution. Rules 10-25 and 105-106 of Order 21 deal with execution applications. Who may apply for execution: Rule 10 An execution proceeding may be started on the application of the i)

Decree holder- Rule10 of Order 21

S U K M A K ii)

Where the decree-holder is dead, his legal representative-S 146.

iii)

Any other person claiming under the decree-holder-S. 146.

iv)

Representative of or a person claiming under the decree-holder - S. 146.

v)

Transferee of decree-holder26, subject to the following-

a. Where the the decree has has been transferr transferred ed by an assignmen assignment, t, in writing writing or by operation operation of law; law; b. The application is to the Court which passed the decree;

c. Notice and after providing an opportunity of being heard to the transferor and the the judgment

vi)

debtor. One or more of the joint decree holders,27 subject to the fulfillment of the the following conditions:

a. There is no contrary condition imposed by the decree.

b. The execution application is to the execution of the whole decree; and

c. The application is made for the benefit of all the joint decree holders; or if anyone anyone of them is

dead, for the benefit of the survivors and the legal representatives of the dece deceased ased decree holder.

]Against whom whom an execution proceeding can be started: Execution proceeding may be started started against the following persons:a. Judgment debtor, S. 50, 0.21, R.15

b. When the judgment debtor is dead, against his legal representatives. But But the legal

representatives shall be liable only to extent of the property of the judgment debtor received

by them. -So 50, 52, 53. c. Repres Representat entative ive of or the person person claiming claiming under under the judgment judgment debtor debtor.-S. .-S.146. 146. d. Sur Surety ety of of the judg judgmen mentt debtor debtor.. S. 150. 150.

Court to whom an execution application may be made: As per S. 38, an execution application may be filed either in the Court who passed the decree or in the Court to whom the decree has been transferred for execution.

Contents of Application: According Application: According to Rule 11 11 of 0.21, every application for execution, except in a case of a money decree, shall be in writing, signed and verified by the applicant or by some other person acquainted with the fact of the case and shall contain the particulars like the number of the suit, the name of

62

the parties, the date of the decree, the amount of the decree etc Rules 11-A, 11-A, 12, 13, 14 and R. 45(1) of 0.21 should be read together. Procedure: Admission (Rule17) and Hearing (Rules 105-106) Admission: According Admission: Acc ording to Rule17 of 0.21, on receiving an application for execution of a decree, the Court must admit and register the application, if the Court is satisfied that the execution application complies with the requirements of Rule 11 to 14. Where such application does not comply with the above requirements then the Court shall allow the defect to be remedied then and there or within a time fixed by it, and if the defect is not remedied as specified then, the Court shall reject the application.

S U K M A K Hearing: Rules 105 and 106 deal with the hearing of an execution application and state that when an Hearing: Rules application is pending then, the Court shall fix a date of hearing and if the applicant is not present at the time of hearing, the Court may dismiss the application and when the applicant is present but the opposite party is not present, the Court may proceed ex-parte hearing and pass an appropriate order. Under Rule 106, 106, an order of dismissal for default or an ex-parte hearing may be set aside by th the e court on an application of of the aggrieved party where there are sufficient causes shown to do so. 28 An order rejecti rej ecting ng an applicatio application n u/r 106(1) is appealla appeallable. ble.

Limitation f or or Execution: Any" Execution: Any" application for execution of a decree can be filed within 12 years years from the 29 date of the decree decree while the period period of limitation limitation for the executi execution on of a decree for mandatory mandatory injunction njunction is 3 30 years from the the date date of of the the decr decree ee . Stay of Execution: Execution: Rules 26 to 29 of Order XXI deal with the stay of execution. The provisions of of Rule 26 are mandatory and and imperative while the provisions of Rule 29 are not mandatory but discretionary. discretionary. But this discretion must must be exercised judicially and in the interest of justice.

The execution execution proceeding may be stayed either by the executing Court i.e. the Court which which passed the decree or the the Court to: -which the decree has been transferred for execution or by the Court having appellate jurisdiction jurisdiction in respect of the decree or to which the decree has been transferred for the the execution thereof.

The provisions provisions regarding stay of execution of a decree are made in Rule 26, which lays down d own that the executing Court Court (the Transferee Court) shall, on sufficient cause being shown by the judgment-debtor, judgment-debtor, and after furnishing security or fulfilling the conditions, which may be imposed upon him by the Court, stay the execution of a decree for a reasonable time, to enable the judgment debtor to apply to the Court which has passed the decree or to the appellate Court for an Order to stay execution.

The transferor Court can stay the execution absolutely while the power to stay the execution by the Transferee Court is for a reasonable time to enable the judgment debar to apply to the transferor Court or to the appellate Court to grant stay against the execution. Stay of Execution Pending suit: Rule suit: Rule 29 of O. XXI deals with the provisions regarding stay of execution pending suit between the decree holder and the judgment debtor. Rule 29 says that "where a suit is pending in any Court against the holder of a decree of such Court or of a decree which is being executed by such Court, on the part of the person against whom the decree was passed, the Court may may,, on such terms as it thinks fit, stay execution of the decree until the pending suit has been decided.

63

Provided that if the decree is one for payment of money, the Court shall if it grants stay without requiring security,, record its reasons for so doing. security Mode of execution: There execution: There are various modes of execution of decree provided in the Code. A decree may be enforced, as specified U/s 51 of the Code of Civil Procedurea.

by de deli live very ry of an any y pr prop oper erty ty sp spec ecif ific ical ally ly de decr cree eed; d;

b.

by at atta tach chme ment nt and sa sale le or by by sal sale e wit witho hout ut att attac achm hmen entt of of any any pro prope pert rty y.

c.

by arr arrest est and det detent ention ion31 31 in pri prison son for suc such h peri period od not exc exceed eeding ing the per period iod spe specif cified ied in S. 58,

S U K M A K where arrest and detention is permissible under that section;

d.

by ap appointing a receiver; or or

e.

in su such ch ot othe herr man manne nerr as as the the na natu ture re of th the e rel relie ieff gra grant nted ed ma may y req requi uire re..

Choice of mode mode of execution and simultaneous execution: As a general rule, it is for the decree holder to choose a particular mode of executing his decree and it is permissible too in law to opt opt for even a simultaneous simultaneou s execution, but the Court may in its discretion refuse execution at the same time time against the 32 person and propert property y of the judgme judgment nt debtor debtor.. The Supreme Supreme Court in Shyam Singh v. collector, Distt. Hamirpur 1993 Supp (1) SCC, obser ved: ved:

"Section 51 of of the Code gives an option to the creditor, of enforcing the decree either against the the person or the property of the creditor; and nowhere it has been laid down that execution against the person person of the debtor shall not be allowed unless and until the decree holder has exhausted his remedy against remedy against the property." However, the the discretion is with the Court to order simultaneous execution and that discretion discretion must be exercised judicially judicially.. The Court can refuse simultaneous execution by allowing the decree holder der to avail of 33 only one mode mode of exe execut cution ion at a tim time e . Modes of Execution: Execution: 1.

By delivery of Property: Section Property: Section 51 (a) Rules 31, 35 and 36.

a. Specif Specific ic move moveabl able e prope property rty:: The decree for any specific movable properties which do not include money and are in the possession of judgment debtor may be executed:i)

by seizure and delivery of property; or

ii)

by detention of the judgment debtor; or

iii)

by attachment and sale of his property; or

iv)

by attac attachment hment and detent detention ion both.

34

The provisions of Rule 31 of O. 21 are not applicable for the execution of a decree for money or where the property is not in possession of the judgment debtor but is in the possession of a third party.

64

b. Immo Immova vabl ble e prope propert rty: y: Rules Rules 35 and 36 Of O. XXI provide the mode of executing decrees, for possession of immovable property. Where the decree is for immovable property in the possession of judgment debtor or in the possession of any person bound by the decree35, it can be executed by removing the judgment debtor or any person bound by the decree and by delivering possession thereof to the decree holder. 2.

Attachments and Sale of Property: Section 51(b) The Court is empowered to order execution of a decree by attachment and sale or by sale without attachment of any property36 and the sale of property without an attachment is merely an irregularity and such sale is not void or without jurisdiction and does not vitiate the sale.

S U K M A K Sections 60 to 64 and Rules 41 to 57 of Order XXI deal with the subject of attachment of property property..

An executing Court is competent to attach the property if it is situated within the local limits of the jurisdiction of the Court and the place of business of the judgment debtor is not material37. The 38 provisions provision s of the Code, however, however, do not affect any local or special law. law. The attachment and and sale under 39 any other statute statute can be made and the judgment debtor cannot claim benefit under the Code. Code. Modes of of Attachment: Attachment: Section 62 and Rules 43 to 54 of Order XXI lay down the procedure procedure for attachment attachme nt of different types of moveable and immovable properties. These are the provisions provisions in the 40 41 Code relating relating to to mode of of attachme attachment nt of movable movable proper property ty,, Negoti Negotiable able instrum instruments, ents, Deb Debtt not secured 42 43 44 by a Negotiab Negotiable le instrument instrument,, Share in capital capital of a corporatio corporation, n, Share or interest interest in in movab movable le pr prope opert rty y, 45 46 Salary or allowance allowance of a Public Servant Servant or a Private employee, employee, Partn Partnershi ership p property, property, Property in 47 custody of Court or Public Public Officer, Officer, Decree (i) for Payment Payment of money or sale in enfor cement of a 48 49 50 mortgage or charge mortgage charge and (ii) (ii) Decree Decree other than that mentio mentioned ned above, above, Agric Agricultur ultur al pr prod oduc uce, e, 51 Immovable Immovab le property property while S. 63 prescribe prescribes s procedure procedure to be followed in case case the property property is attached in execution of execution of decrees by several Courts. 52

Properti es, which can and cannot be attached: Section 60(1) of the Code specifies Properties, specifies about the properties propertie s which can be attached and sold in execution of a decree while being subject to the the provisions of sub-section sub-section (2) of section 60, the properties which can be attached and sold in execution execution of a decree are specified specified in proviso to s. 60(1) and s. 61 of the Code. 53

Determi nation of Attachment: Under the following circumstances, an order of attachment Determination attachment under the Code shall be determined i.

On th the e sat satis isfa fact ctio ion n of of the the dec decre ree e eith either er by th the e pay payme ment nt of th the e dec decre reet etal al amo amoun untt or or 54

otherwise;

55

ii.. ii

On the the re rev ver ersa sall or or set setti ting ng as asid ide e of of the the de decr cree ee::

i ii .

On an an or order to to re release th the pr prop ope erty;

iv.. iv

Dism Di smis issa sall of ex exec ecut utio ion n ap appl plic icat atio ion n af afte terr th the e at atta tach chme ment nt of pr prop opert erty: y:

v.

On wi witthd hdra raw wal of at atta tach chm men entt by at atta tac chi hing ng Cr Cred edit itor or;;

vi.. vi

On fa fail ilur ure e by by dec decre ree-h e-hol olde derr to to do do wha whatt he he is is bou bound nd to do und under er th the e dec decre ree; e; and

vii.. vii

Where Whe re the the atta attachm chment ent ord order er is is made made bef before ore jud judgme gment nt and and the the defe defendan ndantt furni furnishe shes s the the

56

57

58 59

65

60

necess nec essary ary sec securit urity y.

61

3. Arrest and Detention: Detention: Sectio Section n 51 (c) One mode of the executio execution n of a decree is arrest arrest and detention detention of a judgment debtor in the Civil Prison. The provisions stated in proviso to Section 51 are relevant in this regard and are as under: An order of arrest and detention of judgment debtor in civil prison can be passed by the Court while 62 63 executing execu ting the decree decree for payment payment of of money, money, or for specific specific moveable moveable property property,, or for specific specific 64 65 performance perfor mance of of a contract, contract, or for an injunc injunction, tion, or where where a decree decree for specific specific perfo performance rmance of a 66 contract contr act or for an injunct injunction ion is against against a corporatio corporation. n.

S U K M A K But the persons like a woman, judicial officers, the parties and their pleaders, members of Le gislative 67 Bodies, Bodie s, a judgment debtor debtor etc., can not be arrested arrested under curtain curtain circumstances circumstances..

An order of detention of judgment debtor in civil prison shall not be passed, in execution of a decree for 68 the payment of money money,, where the total amount of such decree does not exceed two thousand rupees. Period of of detention: According detention: According to S. 58(1), every person detained in the civil prison in execution execution of a decree shall shall be so detained, where the detention is for the payment of a sum of money – i)

exceeding five thousand rupees- for a period not exceeding 3 months, and

ii)

exceeding two thousand rupees, but not exceeding five thousand rupees - for a a period not exceeding six weeks.

Release of person p erson detained: A detained: A warrant for the arrest may be cancelled or an arrested judg judgment ment debtor 69 may be released released by the Court Court on the ground ground of his serious serious willness, willness, while a judgment judgment debtor, who has been committed committed to civil prison, may be release of therefrom, either by the State Government, on on the ground of the existence existence of any infectious or contagious disease, or by the committing court or any superior superior court, on 70 the grounds of of his suff suffering ering from from any any serious serious iIIness iIIness..

A judgment debtor may also be released as specified under proviso to s. 58, Le. i.

on the, payment of amount mentioned in the warrant, to the officer in charge of the civil prison, prison, or

ii.. ii

on th the e oth other erwi wise se sa sati tisf sfac acti tion on (b (by y an an ord order er of th the e Cou Court rt)) of of the the de decr cree ee,, or or

iii.. iii

on the the req reques uestt to to rele release ase of the per person son on whos whose e appli applicat cation ion he has has bee been n so so detai detained ned,, or or

iv.. iv

on the the omis omissio sion n to pay sub subsis sisten tence ce allo allowan wance, ce, by the the pers person, on, on whos whose e appli applicat cation ion he has has been been so detained.

But such release as specified in clause (iii) or on such omission shall noF1 be without an order of the Court. Re-arrest: A judgment debtor released under section 58 shall not be discharged from his debt but he shall Re-arrest: A not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison and if he has been released under section 59, he may be re-arrested but the detention period in civil prison shall -not exceed the aggregate period specified in S. 58.

66

4. By' Appointment of Receive Receiver: r: Section 51(d) The provisions relating to the execution by appointment of a Receiver are provided in Order XXI, Rule 11 (2) (J) (iv). An execution of a decree by appointment of receiver is an equitable remedy which cannot be claimed as a right and is granted by the Court in its discretion, and the same is an exception to the general rule that a decree holder can choose the mode of execution and that the Court has no power to refuse the mode chosen by him. The provisions of section 51 (d) should be read with - the provisions of Order XL, Rule 1.

S U K M A K Questions to be determined by the Executing Court: Section 47 provides the provisions regarding the matters arising subsequent to the passing of a decree, and deals with objections to execution, discharge and satisfaction of a decree. i.

All questio questions ns arising arising between between the the parties parties to the the suit suit in which which the decree decree was was passed, passed, or their their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

ii. Omitted

iii. Where a question arises as to whether any person is or is not the representative of a party, such question quest ion shall, for the purposes of this section, be determined by the court.

Explanation I: I: For For the purposes of this section, a plaintiff whose suit has been dismissed and a and a defendant against whom whom a suit has been dismissed are parties to the suit.

Explanation II: (a) Explanation II: (a) For the purposes of this section, a purchaser of property at a sale in execution execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) All questions questions relating to the Delivery Delivery of possession of such property to such purchaser or his representative shall be be deemed to be questions relating questions relating to the execution, discharge or satisfaction of the decree within the meaning meaning of this section. In Jugal Kishore Kishore V. Raw Cotton Com. Ltd, AIR 1955, SC, the Court has decided that once once the suit is decreed, S. 47 requires that the executing Court alone should determine all questions in execution proceedings and filing of separate suit is barred. It does not matter whether such questions ar ise ise before or after the decree decree has been executed. For the said purpose, the Court can treat a suit as an execution application or an application as a suit in the interest of justice.

But after the Amendment Act of 1976, which deleted sub-section (2) of section 47, by which the Court was empowered to treat an application U/S 47 as a suit, or a suit as an application, now the Court cannot treat an application U/S 47 as a suit, or a suit as an application.

An Executing Court Can not go behind the Decree: The duty of an executing Court is to execute the 72 decree as it is. An executing Court cannot go behind the decree. An executing Court has 'to 'to take the decree as it stands and execute it according to its terms. The Court has no power to question the correctness of the decree.

Vague and Ambiguous Decree: Vague Decree: But But whenever a decree is found to be vague or ambiguous, it is within the power and duty of the executing Court to interpret the decree with the intent to find out the meaning of those

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73

terms.

Decree passed in Inherent lack of Jurisdiction: When the executing Court finds that there was an inherent lack of jurisdiction, the decree passed by a Court is a nullity and when such a plea is put forward by 74 an aggrieved party, party, it is obligatory obligatory on the part of the executing Court Court to consider such such an objection, and such a decree cannot be executed, because there cannot be said to be a decree in such a case. Act of 1976, No Appeal against any determination U/s 47, but Revision Lies: Before the Amendment Act the determination of any question U/s 47 was deemed to be a decree U/s 2(2) of the Code, but after the amendment, which deleted sub-section (2) of section 47, by which the Court was empowered to treat an application U/s 47 as a suit, or a suit as an application, and hence, now any determination U/ s 47 is not appealable U/s 96 or 100, but a revision lies, subject to the fulfillment of the conditions mentioned in s. 115 of the Code. –

S U K M A K IMPORTANT QUESTIONS Q.1.

What is the effect of Non-appearance of Parties?

Q.2.

Can sale of immoveable property in the execution of a decree be set aside? If so, so, at whose instance? insta nce?

Q.3.

What do you understand by execution? Who can apply for execution and against against whom an execution exec ution can be made?

Q.4.

What are the various modes of execution of decree. or order? Discuss.

Q.5.

An executing court can not go behind decree. Is there any exception to the rule. If any provide? provide?

Q.6.

Explain the following : Explain

a. Summons and Discovery of Parties b. Notice

c. Provisions relating to attendance of witnesses d. Executing Court

e. Properties which cannot be attached f.

Dism Di smis issa sall of of Sui Suitt in in def defaul aultt

g. Set Settin ting g asid aside e ex-pa ex-parte rte dec decree ree

References; 1. Earl Jowit: The Dictionary of English Law 2. Order V, Rule 10 3. Order V, Rule 10 4. Order V, Rule 16 5. Order V, Rule 18 6. Order V, Rule 20 7. Order V, Rule 9(5) 8. Proviso to Order V, Rule 9 (5) 9. Order V, Rule 9-A 9 -A

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10. Order V, Rule 21 11. Order V, Rule 21 12. Order V, Rule 9(4) 13. Order XI, Rule 20 14. Order XVI, Rule 1(1) 15. Order XVI, Rules 1 (2) and 1 (4) 16. Order XVI, Rules 1(3) and i-A 17. Order XVI, Rule 2 18. Order XVI, Rule 2(1) 19. Order XVI, Rule 21 20. Order IX, Rule 9(2) 21. Order IX, Rule 6(1) (a) 22. Order IX Rule 14 23. IInd Proviso to Rule 13 of Order IX 24. Section 96(2) 25. Expl. to Rule 13 26. Section 49, Order XXI, Rule 16 27. Order XXI, Rule 15 28. Order XLIII, XLIII, Rule 1 Ua) 29. Article 136, 136, Limitation Act, 1963 30. Article 133, 133, Limitation Act, 1963 31. Section 55 55 to 59 32. Order XXI, XXI, Rule 21 33. Order XXI, XXI, Rule 21 34. Order XXI, XXI, Rule 31 35. The expr ession ession "any person bound by the decree" includes the judgment debtor as well as as any person bound by such such decree. (In Sheikh Yusuf V. V. Jyotish Chandra, AIR 1932 Calcutta). 36. Section 51(b) 37. Raoof V. V. Lakshmipathi, Lakshmip athi, AIR 1969 Mad 38. Section 4 39. State of Punjab V. V. Dinanath AIR 1984 S.C. 40. Order XXI, Rules 42, 43, 43-A and 46 (1) (c) 41. Order XXI, Rule 51 42. Order XXI, Rule 46(1) (a) 43. Order XXI, Rule 46(1) (b) 44. Order XXI, Rule 47 45. Order XXI, Rule 48 and 48-A 46. Order XXI, Rule 49 47. Order XXI, Rule 52 48. Order XXI, Rule 53 (1) (a) and Rule 53 (1) (b) 49. Order XXI, Rule 54(4) 50. Order XXI, Rule 44 51. Order XXI, Rule 45 . 52. Sections 60 and 61 53. Rules 55 to 56 54. Rule 55 55. Rule 55 56. Rule 58(3) 57. Rule 57 58.. 58 Bah ahri ri La Lall V Sar aral al Kum umar ar-A -AIR IR 19 1965 65 59. Baba V Kiran AIR 19 1938 Bo Bomba bay y 60. Order 38 Rule 9 61.. 61 Sect Se ctio ions ns 51 (c (c)) 52 52 to to 59 59 and and Ru Rule les s 30 30 to to 41 41 62. Rule 30

S U K M A K 69

63. 64. 65. 66. 67.. 67 68. 69. 70.. 70 71. 72.. 72 73.. 73 74.. 74

Rule 31 (1) Rule 32(1) Rule 32(1) Rule 32(2) Sect Se ctio ions ns 52 52(2 (2), ), 56 56,, 58 58,, 13 135 5 and and 13 1355-A A Section 58(1-A) Section 59(1) and (2) Section 59(3) (a) and (b) Proviso to Section 58 Ram amas aswa wami mi v Kai Kaila lasa sa AIR 19 1951 51 SC Bha hav van Vaj aja a v. v. Han Hanuj uja a Kho Khoda daji ji Kira Ki ran n Sin Singh gh v Cha Cham m Pas Paswa wan n AI AIR R 195 1954 4 SC SC

S U K M A K 70

S U K M A K UNIT - IV

INCIDENTAL PROCEEDINGS Commission (Sections - 75 to 78 and Order 26)

Meaning: 'Commission' is a process through which the witnesses, who are sick or infirm and are unable to Meaning: 'Commission' attend the Court, Court, are examined by issuing a commission by the Court. Sections 75 to 78 and Order XXVI of the Code deal deal with the various provisions relating to the issue of Commission to examine witnesses witnesses who are unable to attend to attend the Court for one or the other reasons. Power of Court Court to issue Commissions: As Commissions: As a general rule, the evidence of a witness in an action, action, whether he is a party to the suit or not, should be taken in open' Court and tested by cross-examination. cross-examination. The court has a discretion discretion to relax the rule of attendance in Court, under some circumstances and may justify justify issue of a commission. commission. Section 75 of the Code -specifies the powers of a Court to issue Commission. Section 75: Subject to the conditions and limitations as may be prescribed, the Court may issue a commission:-commission: a. to examine any person;

order XXVI, Rule 1 to 8

b. to make a local investigation; order XXVI, XXVI, Rule 9 to 10 c. to examine or adjust accounts;


d. to make a partition ;


e. to hold a scientific, technical or expert investigation; order XXVI, XXVI, Rule 10-A f.

to conduct conduct sale sale of propert property y which which is subject subject to to speedy speedy and natural natural decay decay and and which is in the the custody custody

of the Court pending the determination of the the suit; order XXVI, Rule 10-C

g. to perform perform any ministerial ministerial act; act; Rules 15 to 18- B deal with with general provision provisions. s. order XXVI, XXVI, Rule Rule 10-B

Cases in which Court may issue Commission to examine a person (Witness): A commission may be issued in the following cases:

a. Any Court may may in any suit issue a commission commission for the examination examination on interrogatories or otherwise of any person, if the person to be examined as a witness resides within the local limits of jurisdiction, and i. Is exemp exempted ted unde underr the Code Code from from atte attendi nding ng the the Court, Court, or or ii. in the interest interest of justice justice,, or for expeditio expeditious us disposal disposal of a case, case, or for any other other reason reason his

71

1

examination exami nation on commissio commission n will be proper; or 2

b.

if he re resi side des s bey beyon ond d the the loc local al li limi mits ts of ju juri risd sdic icti tion on of of the the Co Cour urt, t, or

c. d.

he is ab abou outt to to lea leave ve th the e jur juris isdi dict ctio ion n of of the the Co Cour urtt, or If he is is a Gove Governm rnment ent ser servan vantt and and cannot cannot in the the opin opinion ion of the the Cour Court, t, atte attend nd with without out det detrim riment ent to the the 4 public servi service, ce, or 5 he is is resi residi ding ng out out of of Indi India a and and the the Cour Courtt is sa sati tisf sfie ied d that that his his evi evide denc nce e is ne nece cess ssar ary y.

e.

3

S U K M A K Persons for whose examinations commission commissi on may be issued: Rule 4(1):

Any Court may in any suit issue a commission for the examination examination on interrogatories or otherwise of any person, a. If he reside resides s beyond the the local limits limits of the the jurisdicti jurisdiction on of the court court or [(Order [(Order XXVI, XXVI, Rule4(1) Rule4(1)(a)] (a)] b. if he is about about to leave the the jurisdicti jurisdiction on of the Court, Court, or [(Order [(Order XXVI, XXVI, Rule4(1)( Rule4(1)(b)] b)]

c. if he is a Govt. servant and cannot, in the opinion of the court, attend without detriment to detriment to the public service, or [(Order XXVI, Rule4(1)(c)] service, d. if he is residing out of India and the Court is satisfied that his evidence is necessary. Rule 5

To whom Commission Commission may be issued: [Rule 4 (2) and (3)]

Rule 4(2): S 4(2): Such uch commission may be issued to any Court, not being a high Court, within the local local limits of whose jurisdiction jurisdiction such person resides; or to any pleaded or other person whom the Cour t issuing the commission may appoint.

Rule 4(3): Th The e Court on issuing any commission under this rule shall direct whether the commission commission hall be returned to itself itself or to any subordinate Court. Order for Issue Issue of Commission: (Rule-2) The Court may may issue such a commission –

a. either sue motu (of its own motion) or

b. on the application of any party to the suit, or c. "ii "ii))

of the wit witnes ness s to be exa examin mined. ed.

Evidence to be a part of Record: (Rule-7): The evidence taken on commission shall, subject to the provisions of rule 8, form part of the record.

When deposition may be read in evidence: (Rule-S) (Rul e-S) : Evidence taken under a commission shall not read as evidence in the suit without the consent of the party against whom the same is offered, unless.

a. The person, person, who gave the the evidence, evidence, is beyond beyond the jurisdictio jurisdiction n of the Court or dead or or unable for sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a person in the Service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service; or

72

b. The Court in his discret discretion ion dispenses dispenses with with the proof of any of the circumst circumstances ances mentioned mentioned in clause clause (a), and authorizes the evidence of any person being read as evidence in' the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same. Letters Of Request: (Section 77): In 77): In lieu of issuing a commission the Court may issue a Letter of Request to examine a witness residing at any place not within India.

S U K M A K SUPPLEMENTAL PROCEEDINGS

Arrest Before Judgment (Order ( Order 38, Rule 1 to 4)

Introduction: The general rule is that a creditor having a claim against the debtor has first to obtain a Introduction: The decree against him and then execute the said decree according to the provisions of Order XXI and may adopt the mode of his arrest or attachment of his property in such execution, but under special circumstances, circumstance s, the creditor, however can move for the arrest of the debtor or for the attachment attachment of his property even even before the judgment in order to prevent any attempt on the part of the defendant to defendant to defeat the execution of decree that may be passed against again st him. Principle:

When can such such order be passed: An passed: An application for arrest may be made by the plaintiff at any any time after the plaint is presented, presented, even before the service of summons is effected-on the defendant and the the Court may pass the order order of-arrest upon the satisfaction of the following two conditions:

a. The Plain Plaintiffs tiffs suit must be bona fide and his cause of action must action be prima facie unimpeachable unimpeachable subject to his to his proving the allegations in the plaint, and b. The Cou Court rt must have reason to-believe on adequate materials that unless this extraordinary extraordinary power is exercised there exercised there is a real danger that the defendant will remove himself or his property from the from the ambit of the powers powers to the Court. Grounds of arrest before judgment: (Order judgment: (Order 38, Rule 1) Where al any stage of the suit, other than than a suit of the nature ref erred erred to in Section 16, clauses(a) to (d), the Court is satisfied, either by affidavit or otherwise otherwise –

a. that the defendant, with intent to delay the plaintiff, plaintiff, or to avoid any process of the Court, or to obstruct or delay the execution of any decree that may be passed against him : a. has absconded absconded or or left the the local local limits limits of the the jurisdictio jurisdiction n of the Court, Court, or or

b. is about to to abscond abscond or leave the the local limits limits of the the jurisdictio jurisdiction n of the Court, Court, or

c. has disposed disposed of or removed, removed, from from the local limits limits of the jurisdic jurisdiction tion of the Court Court his property property or any part thereof, or

b. that the defendant is about to leave leave India under circumstances affording affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit.

73

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 for his appearance. Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs claims; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

S U K M A K Security : (Rule 2) i.

Where the the defendant defendant fails fails to show show such such cause the the Court Court shall order order him him either either to deposit deposit in the Court money -or other property sufficient to answer the claims against him to furnish security for his appearance at the time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule.

ii. Every surety for the appearance of a defendant shall bind himself in default of such appearance, appearance, to pay any any sum of money, which the defendant may be ordered to pay in the suit.

Procedure on on application by surety to be discharged (Discharge (Di scharge of Security) : (Rule 3) I.

A surety f or or the appearance of a defendant may at any time apply to the Court in which he became became such surety to be discharged from his obligation.

ii. On such application being made, that Court shall summon the defenciant to app ear or, if it thinks thinks fit, may issue a warrant warrant for his arrest in the first instance.

iii. On the appearance of the defendant in pursuance of the sunimons of warrant or on his voluntary surrender, surrende r, the Court shall direct the surety to be discharged from his obligation and shall call upon the defendantt to find fresh security. defendan security. –

Procedure where defendant fails to furnish security or find fresh security: (Rule 3) : Where the defendant fails fails to comply with any order under rule 2 or rule 3, the Court may commit him to the the civil prison until the decision decision of the suit or where a decree is passed ag ainst the defendant until the decr ee has been satisfied:

Provided that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject matter of suit does not exceed fifty rupees: Provided also that no person shall be detained in prison under this rule after he has complied with such order. Arrest on Insufficient Grounds:6 Grounds: 6 According to section 95, where, in any suit in which an arrest or attachment has been effected anda. b.

it appea appears rs ,to ,to the the Cour Courtt that that such such arr arrest est or atta attachm chment ent was appl applied ied for on insu insuff ffici icient ent gro ground und,, or the sui suitt of the pla plaint intif ifff fail fails s and and itit appear appears s toto- the the Court Court tha thatt ther there e was was no no reaso reasonab nable le or or proba probable ble

74

ground for instituting the same, on the application of the defendant the Court may may,, award against the plaintiff by its order such amount, not exceeding fifty thousand rupees, as it deems reasonable compensation to the defendant for the expense or injury (including injury to reputation) caused to him. Provided that a Court shall not award under this section, an amount exceeding the limits of its pecuniary jurisdiction.

S U K M A K Attachment Before Befo re Judgment (Order 38 Rules 5 - 12)

Object: In Sardar Govind Rao Vs Devi Sahai AIR 1982 S.C. 989, the Court held that "the sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of guarantee against decree becoming in fructuous for want of property available from which the plaintiff can satisfy the decree." Grounds: Rule 5(1): Where, 5(1): Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise that the defendant, with with intent to obstruct or delay the execution of any decree that may be passed against against him a. is about to dispose of the whole or any part of his property property,, or

b. is about to remove the whole or any part of his property from the local limits of the jurisdiction jurisdiction of the Court;; Court

the Court may may direct the defendant, within a time to be fixed by it, either to furnish security in such sum as may be specified specified in the order, to produce and place at the disposal of the Court, when required, required, the said property or the the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show show cause why he should not furnish security. Rule 5(2): The plaintiff shall, unless the Court otherwise directs, specify the property required required to be attached and estimated and estimated value thereof. Rule 5(3): Th The e Court may also in the order direct the conditional attachment of the whole or any any portion of the property so specified. Rule 5(4): If 5(4): If an order of attachment is made without complying with the provisions of Sub-rule Sub-rule 1 of Rule 5, such attachment shall be void.

Principles : : The remedy of an attachment before judgment is an extraordinary remedy and must be exercised sparingly and strictly in accordance with the law and with the utmost care and caution," and the Court must be satisfied about the following two conditions before making such order of attachmenta. that the defenda defendant nt is about to to dispose dispose of the whole whole or any part of his his property; property; and and

b. that the disposal disposal is with with the intention intention of obstructing obstructing or delaying delaying the executio execution n of any decree that may may be passed against him. Chandrika Prasad Vs Hiralal, AIR 1924, Pat H C, Dawson Millar C.J., - - stated stated that" such a power is only given when the Court is satisfied not only that the defendant is about to dispose of his properties or to

75

remove it from the jurisdiction of the Court, but also that his object in so doing is to obstruct or delay the execution of any decree that may be passed against him, and so deprive the plaintiff, if successful, of the fruits of the victory." victo ry." As per Rule Rule 12, the plaintiff cannot apply and the Court cannot order the attachment attachment or production of any agricultural produce in possession of an agriculturist. Right of Third Party

S U K M A K Rule 10: Attac 10: Attachment hment before judgment not to affect rights of strangers, nor bar decree holder from applying for sale:

Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not arties to the suit, nor bar any person holding a decree against the defendant from applying for the sale f the property under attachment in execution of such decree. Re-attachment Re-attachm ent In Execution: (Rule ( Rule 11 and 11-A) 11-A)

Rule 11: Pro Property perty attached before judgment not to be re-attached in execution of decree:

Where property property is under attachment by virtue of the provisions of the Order 38, and a decree is subsequently subsequentl y passed in favour of the plaintiff, plain tiff, it shall not be necessary upon an application for for execution f such decree to apply for a re-attachment re -attachment of the property. Rule 11-A : Provisions applicable to attachment:

a. The provision of this Code (Order 21) applicable to an attachment made in execution of of a decree so far as may as may be, apply to an attachment made before judgment which continues after the judgment the judgment by virtue of virtue of the provisions of rule 11.

b. An attachment made before judgment in a suit which is dismissed for default shall not shall not become revived reviv ed merely by reason of the fact that the order for the dismissal of the suit for default default has been set aside aside and the suit has been restored.

Withdrawal of Attachment:

Rule 9: Removal 9: Removal of attachment when security furnished or suit dismissed:

Where an order is made for attachment before judgment; the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for costs of the attachment or when the suit is dismissed. d ismissed. EMPORARY INJUNCTION (ORDER XXXIX RULES RUL ES 1 TO 5)

Meaning of Injunction: An injunction is an order by the Court to a party to the effect that he shall do or refrain from doing a particular act. “A judicial process, by which one, who has invaded or is threatening to invade the rights (legal or suitable) of

76

another, is restrained from continuing or commencing such wrongful act." According to Lord Halsbury: "An Halsbury: "An injunction is a judicial process whereby a party is ordered to refrain . am doing or to do a particular act or thing." In the former case it is called a Restrictive Injunction and the later case a Mandatory Injunction. Characteristic Characteristi c of Injunction: An injunction has three characteristics -

S U K M A K 1. It is is a judi judici cial al pro proce cess ss,,

2. The object object there thereby by is restr restraint aint or preventi prevention, on, and and

3. The thing thing restra restrained ined or or prevented prevented is a wrongf wrongful ul act. act.

The law relating to injunction is laid down in the Specific Relief Act, Act, 1963 ( Classification of Injunction: Injunction: The Section 36 to 42 )

An injunction injunction may may be classified according to the relief granted or according to its nature or according according to the operation of Time Time As regards th the e "time" of their operation the injunction may be divided into two categories-

i.

ii.

i)

Perpetual or (Permanent), and

ii)

Interlocutory Or (T (Temporary) emporary)

Perpetual or (Permanent): A (Permanent): A perpetual injunction restrains a party for ever from doing doing the specific act and can can be granted only on merits at the conclusion of the trial after hearing both the theparties parties to the suits. Section Section 37(2) of the Specific-Relief Act, 1963 Interlocutory or (Temporary) :

Definition: A temporary injunction or interim injunction, restrains a party temporarily fro Definition: A from m doing the specified act and can be granted only until the disposal of the suit or until the _ further orders ofthe of the Courts. It is regulated by by Order 39 rule 1 to 5 of the C.P.C. C.P.C. and may be granted at any stage of the suit. Section 37(1) of the Specific Relief Act, 1963

Object: The primary object of granting temporary injunction is to maintain and preserve status quo at the Object: The time of institution of the proceedings and to prevent any change in it until the final determination of the suit. Grounds: [Order 39 Rule Rul e 1, 2 and also Sec. 94 (c)] A (c)] A temporary injunction injunction may be granted by the Court under the following cases: 1. Where in any suit it is proved proved by affidavit or otherwise: otherwise:

a. that any any property property in dispute dispute in a suit ,is ,is in danger danger of being wasted, wasted, damage damaged d or alienated alienated by any party to the suit, or wrongfully sold in execution of a decree; or Rule 1 (a)

77

b. the defendant defendant threate threatens, ns, or intends intends to remove remove or dispose dispose of of his property property with with a view to to defrauding his creditors, or Rule 1 (b) c. the defendant defendant threaten threatens s to disposes disposes the plainti plaintiff ff in relation relation to to any property property in dispute dispute in the the suit, or Rule 1 (c) The Court may by order grant a temporary injunction to restrain such act, or make such other order for the purposes of staying and preventing the wasting, damaging, a lienation, sale, removal or dispossession of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.

S U K M A K 2.

Where Whe re the the defe defenda ndant nt is is about about to comm commit it a bre breach ach of cont contrac ract, t, or or other other inj injury ury of any any kind kind,, or Rul Rule e 2(1) 2(1)

3. Where the Court is of the opinion that the interest of justice so requires: Section 94(c)

Principles: The power to grant a temporary injunction is in the discretion of the Court, but this discretion, Principles: The should be exercised reasonably, judiciously and on sound legal principles. Generally, before granting the injunction, the the Court must be satisfied about the following conditions: i)

Prima facie case; Prima facie

ii)

Irreparable Injury; and Irreparable

iii)

Balance of convenience Balance

i)

Prima facie case: The case: The applicant must make out a prima facie case in support of the right right claimed by him. The Court must be satisfied that there is a bona fide dispute raised by the applicant applicant and on the facts before the Court there is a probability proba bility of the applicant being entitled to the relie relieff claimed by him.

In deciding deciding prima facie case; the Court is to be guided by the Plaintiffs case as revealed in revealed in the plaint, affidavits affida vits or other materials produced by him... and "while determining whether a prima prima facie case had been been made out, the relevant consideration is, whether' on the evidence led, it was was possible to arrive at arrive at the conclusion in question and not whether that was the only conclusion which which could be arrived arrive d at that evidence."?

ii)

Irreparable Injury: The Irreparable Injury: The applicant must further satisfy the Court that he will suffer irreparable irreparable injury if the in junction as prayed is not granted, and there is no other remedy open to him bywhich by which he can protect himself from the consequences of apprehended injury injury.. The expression "irreparable injury" means that the in jury must be material one, Le. which cannot be adequately compensated by damages.

iii)

Balance of Convenience: The Convenience: The balance of convenience must be in favour of the applicant. In other words the Court must be satisfied that the compensation, mischief or inconvenience which is likely to be caused to the applicant by withholding the injunction will be greater than that which is likely to be caused to the opposite party by granting it.

Discretionary Remedy: Since Remedy: Since grant of injunction is discretionary and an equitable relief, even if all the conditions are satisfied, the Court may refuse to grant it for some other reasons e.g., on the ground of delay, latches or acquiescence or where the applicant has not come with clean hands or has suppressed material

78

facts, or where monetary compensation is adequate relief. Notice: The Court shall before granting an injunction, give notice to the opposite party, except where it Notice: The 8 appears that the object of granting the injunction would be defeated by the delay. delay. According to proviso to Rule 3, when an ex parte injunction is proposed to be given the Court has to record the reasons for coming to the conclusion that the object of granting the injunction would be defeated by the delay and the Court shall order the applicant -

S U K M A K a.

b)

to del delive iverr or to sen send d by reg regist istered ered pos postt a cop copy y of of the the appl applica icatio tion n for for inju injunct nction ion tog togeth ether er with with -

i)

a copy of affidavit filed in support of application,

ii)

a copy of the Plaint, and

iii)

copies of documents on which the applicant relies, and

to file, on the day on which injunction is granted or on the day immediately following that following that day, an affidavit affida vit stating that the copies aforesaid have been so delivered or sent immediately immediately to the opposite oppo site party.

In case of ex-parte ex-parte injunction, the Court shall make an endeavour to finally dispose of the application application within 30 days from the from the date on which the ex-parte injunction was granted. Where the Court finds it finds it difficult to dispose of the the application within the period of 30 days, the reasons are required to be recorded. recorded. (Rule 3-A)

An order of in junction may be discharged, varied or set aside by the Court on application being beingmade made by any party dissatisfied dissatisfied with such order;9 or where such discharged, variation or set aside has beennecessitated been necessitated by the change change in the circumstances, or where the Court is satisfied that such order has caused caused undue hardship to the the other side.

Provided that that if an application for temporary injunction or in any affidavit supporting such application, application, a party has knowingly knowingly made a false or misleading misleading statement in relation to a material partic particular ular and the injunction was was granted without "giving" nonce to the opposite party, party, the Court shall vacate the the injunction unless, for reasons reasons to be recorded, it considers that it is not necessary to do in the interest of justice." justice." First Proviso to Rule R ule 4 Provided further further that where an order for injunction has been passed after giving a party an opportunity opportunity of being heard, the heard, the order shall not be discharged, varied or set-aside on the application of that party except where such discharged, variation or set aside has been necessitated by the change in the circumstances, or unless the Court is satisfied that" the order has caused hardship to that party.Second party.Second Proviso to Rule 4 Provided also that if at any stage of the suit it appears' to the Court that the Party" in whose favour the order of injunction exists is dilating the proceedings or is otherwise abusing the process of the Court, it shall set aside the order for injunction. U.P U.P.. State Stat e Amendment

Consequences Of Disobedience Or Breach Of Injunction: Section 94(c) and Rule 2-A of Order 39 provide for the consequences of disobedience or breach of an order of an injunction issued by the Court. The penalty for disobedience or breach of injunction may be either arrest or a ttachment of his property or both of the opposite party who has committed breach. However, the detention in civil prison shall not exceed three months and the attachment of property shall not remain in force for more than one year. [Rule

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2-A (1)] If the disobedience or breach still continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party. [Rule 2-A (2)] The transferee Court can also exercise his power and can punish for breach of injunction granted by the transferor Court. [Rule 2-A (1)]

S U K M A K Injunction on insufficient grounds: When grounds: When in any suit in which an order of temporary injunction has been obtained by the plaintiff on insufficient grounds, or where the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting it, on application being made by the defendant, the Court may order the plaintiff to pay such amount not exceeding one thousand rupees, as it 10 deems a reasonable compensation to the defendant for the expense or injury to reputation caused to him.

An order declining to grant injunction and issuing notice to defendants V/s Rule 3 of Order 39 is not appealable under Order 43 Rule 1 (2) of the Code but when the ex-parte interim injunction is refused illegally, illega lly, the Court can in exercise of its power of Superintendence under Section 115 of the Code, Code, grant adinterim injunction. injunction. Interlocutor y Orders (Order XXXIX Rules 6 to 10)

Meaning: Int Interim erim orders or interlocutory orders are those orders passed by a Court during the pendency the pendency of a suit or proceeding proceeding which do not determine finally the substantive rights and liabilities of the the parties in respect of the subject-matter the subject-matter of the suit or proceeding.

After the suit is instituted by the plaintiff and before it is finally disposed of, the Court may make interlocutory make interlocutory orders as may may appear to the Court to be just and convenient. [Section 94 (e)]

Interim order s or interlocutory orders are made in order to assist the parties to the suit in the prosecution prosecution of their case or f or or the purpose of protection of the subject matter of the suit. Interlocutor y Orders Under Order XXXIX:

1. Power of Court to Order Interim Sale: On the application of any party (an application application by the 11 plaintiff plaint iff under Rules Rules 6 or 7 may be made at any time after after the institution institution of the suit suit while while by the 12 defendant, it may be made at any time after after appearance) to the suit, the Court may, may, order the sale of any moveable property, being the subject-matter of such suit, o r attach before judgment in such suit, which is subject to speedy and natural delay delay,, or which for any just and sufficient cause it may be 13 desirable to have been sold at once.

2. Detention Detention,, Preservat Preservation, ion, Inspect Inspection, ion, etc, etc, of Subject-mat Subject-matter ter of Suit : The Court may make an order for detention, preservation and inspection of any property which is the subject-matter of the 14 suit, or as to which any question may arise arise therein; and authorize any person to enter enter upon or into 15 any land or building in the possession possession of any other party to such suit; and authorize any sample to be taken, or any observation to be made or experiment to be tried, which may seem necessary or 16 expedient expedi ent for the purpose purpose of obtaining obtaining full informat information ion or evidence. evidence. Notice to Opposite Party: No Party: No order under rule 6 or 7 shall be made without giving notice to the

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opposite party, party, except where it appears to the Court that the object of making such order would be 17 defeat def eated ed by del delay ay.. 3.

When party may be put in immediate possession of land, the subject matt er of suit: Where land paying revenue to government, or a tenure liable to sale, is the subject matter of a suit, or the party in possession of such land or tenure neglects to pay pa y the government revenue, or the rent due to. the proprietor of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the court), be put in immediate possession of the land or tenure; and the court in its decree may award against the defaulter the amount so paid, with interest thereon at such rate as the court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the court 18 orders, in any adjustment of accounts which may be directed in the decree passed in the suit.

S U K M A K 4.

Deposit of money, etc., in court: Where court: Where the subject matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or o ther things as a true for another another party, party, or that it belongs or is due to another party party,, the court may order the the same to be deposited depo sited in court or delivered to such last named party, with or without security, subject s ubject to the 19 furtherr direc furthe directio tion n of the cour court. t.

RECEIVER (ORDER (ORDER XL)

Meaning: Th The e word has not been defined in the Code. The same may be defined as under:-

"The receiver receiver is an important person appointed by the Court to collect and receive, pending the proceedings, the proceedings, the rents, issues and profits of land, or personal estate, which it does not seem r easonable easonable to the Court that that either party should collect or receive, or for enabling the same to be distributed distributed among the 20 persons entitl entitled." The receiver is is appointed for the benefit be nefit of all concerned; he is the rep resentative of the Court, Court, and for all 21 parties interested interested in the litigation, litigation, wherein wherein he is appointed. appointed. He is an officer officer or representative representative of the Court 22 and he functions functions under its directions.

Appointmen t: In order to prevent the ends of justice from being defeated the Court may, Appointment: may, if it is so prescribed, appoint appoint a receiver of any property and enforce the performance of his duties by attaching and 23 24 selling sellin g his property property.. The remunerat remuneration ion for the servic services es of the receiver receiver shall shall be paid paid by the order order of Court. Court. Order XL : Rule 1 (1) provides that:-

Where it appears to the court to be just and convenient, the court may by ordera. appoint a receiver receiver of any any property property,, whether whether before before or after after decree; decree;

b. remove remove25 25 any person person from from the posses possession sion or custo custody dy of the the property; property; c. commi committ the same same to the possessio possession, n, custody custody or managemen managementt of the receiver; receiver; and and d. confer upon upon the receiver receiver all such such powers, powers, as to bringing bringing and defending defending suits suits and for the realizat realization, ion, management, protection, preservation and improvement of the '-':property, the collection of the

81

rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the court thinks fit. Duties Dutie s and and Enforce Enforcement ment ther thereof: eof:

26

Rule 3: Duties : Every receiver so appointed shall-

S U K M A K a. furni furnish sh such security security (if (if any) as the court court thinks thinks fit, duly duly to account account for what he shall shall receive receive in respect of the property;

b. submi submitt his account accounts s at such such periods periods and in such such form form as the court direct directs; s; c. pay the the amount amount due due from from him him as the court court direct directs; s; and and

d. be responsible responsible for any loss loss occasioned occasioned to the property property by his willful willful default default or gross gross negligence. negligence.

e. fails to to pay the amount amount due from from him as the court court directs, directs, or occasion occasions s loss to the the property property by his willful default willful default or gross negligence,

Rule 4: Enfo Enforcement rcement of Receiver's Duties: Where a receivera)

Fail Fa ils s to to subm submit it hi his s acc accoun ounts ts at su such ch pe peri riod ods s and and in su such ch fo form rm as th the e cou court rt directs, or

b)

Fail Fa ils s to to pay pay th the e amo amoun untt due due fr from om as th the e cou court rts s dir direc ects ts,, or or

c)

Occa Oc casi sion ons s los loss s to to the the pro prope pert rty y by by his his wi will llfu full defa defaul ultt or or gros gross s neg negli lige genc nce, e,

the court may may direct his property to be attached and may sell such property, and may apply the proceeds the proceeds to make good any any amount found to be due from him or any loss occasioned by him, and shall pay pay the balance (if any) to the receiver. the receiver.

According to rule 5, 5, a collector may be appointed as a receiver where the property is land paying paying revenue to the Government, Government, or land of which the revenue has been assigned or redeemed, and the court court considers that the inter ests ests of those concerned will be promoted by the management of the Collector, the the court may, ma y, with the consent consent of the Collector, appoint him to be receiver of such property. Appeals (Section (Section 96 to 112, Order 41-45)

Introduction: The provisions relating to appeals are contained in Sections 96 to 112 and Orders XLI to XLV Introduction: The of the Code of Civil Procedure and can be summarized as under: a. First Appea Appeal, l,

Sections Sect ions 96 to 99-A, 107 and Order XLI

b. Secon Second d Appeal Appeal,,

Sections Sect ions 100 to 103, 108 and Order XUI

c. Appeal Appeals s from Orders

Sections Sect ions 104, 108 and Order XLII XLIIII

d. App Appeal eals s by Ind Indige igent nt per person sons s

Order Ord er XLI XLIV V

e. Appeal Appeals s to Supre Supreme me Court

Section Sect ion 109 and Order 45

Meaning: The appeal means " the Judicial examination of the decisions by a higher Court of the. decisions Meaning: The of an inferior Court"

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Right to Appeal: The Appeal: The right to appeal is a vested right. The right to appeal is a substantive right and an appeal is a creature of statute and there is no right of appeal unless it is given clearly in express terms by a statute. Appeal is a vested right and accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced. The right of appeal is to be governed by the law prevailing at the date of the institution of the suit or proceeding 27 and not by the law that prevails at the the date of its decision or at the date of the filing of the appeal. This vested right can be taken away only by a subsequent enactment if it so provides expressly or by necessary implication, and not otherwise.

S U K M A K First Appeal : (Sections 96 – 99-A, 107 and Order XLI) Appeal from Original Decree: S. 96 of 96 of the Code provides as:

1. Save whe where re otherwise expressly provided in the body of this Code or by any other law for the the time being in force, an an appeal shall lie from every decree passed by any Court exercising original jurisdiction jurisdiction to the Court authorized. authorized. to hear appeals from the decision of such Court. 2. An appea appeall may le from an original decree passed ex parte.

3. No appea appeall shall lie from a decree passed by the Court with the consent of parties. 4.

No appe appeal al shall lie, except on a question q uestion of law, from a decree in any suit of the nature cognizable cognizable by Courts of small small causes, when the amount or value of the subject- matter of the original suit does not exceed ten ten thousand rupees.

Who may Appeal: Appeal: The The following persons are entitled to prefer an appeal :

1. A party to the suit who is adversely affected by the decree {Section 96(1)}, or his legal representative. repre sentative. (Section 146) 2. A person claiming under a title party p arty to the suit or a transferee of interests of such party party, who, so far as interest interest is concerned, is bound by the decree, provided his name is entered on therecord the record of the suit. (Section 146)

3. A guardian guardian ad litem appointe appointed d by the Court in a suit by or against against a minor. minor. (Section (Section 147, Order Order 32, Rule 5) 4. Any other other person, person, with the the leave of the the Court, Court, if he is adversely adversely affecte affected d by the decree. decree.

An appeal may lie against an ex- parte decree {S{S- 96(2)}and no appeal shall lie from a decree passed with consent of parties {S- 96(3)}. The provision of S-96(3) is based upon principle of Estoppels. Once the decree is shown to have been passed with the consent of parties, Section 96(3) becomes operative and binds them. It creates and Estoppels between the parties as a judgment on consent. There shall be no appeal in petty cases as provided in Section 96(4) and an appeal lies against preliminary decree as in the case of all decrees, unless a final decree has been passed before the date of filing an

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appeal, but there shall be no appeal against final decree when there was no appeal against preliminary 28 decree. In fact, final decree owes its existence to the preliminary decree. Conditions before filing an appeal: An appeal can be filed against every decree passed by any Court in exercise of original jurisdiction upon the satisfaction of the following two conditions: i)

The subject matter of the appeal must be a "decree", and

S U K M A K ii)

The party appealing must. have been adversely affected by such determination.

Order XLI - Appeal from Original Decrees. Form of Appeal: Rule 1 to 4:

Memorandum of Appeal: Contains Appeal: Contains the grounds on which the judicial examination is invited. In order that an appeal may be validly presented, the following requirements must be compiled with: a.

It must be in the form of memorandum setting forth the grounds of objections to the decr ee ee appealed

from.

b. It must be be signed signed by the appellant Court or his pleader. c. It must be be presented presented to the Court.

d. The mem memorandum orandum must be accompanied by a certified copy of the decree.

e. The mem memorandum orandum must be accompanied by a certified copy of the judgment unless the Court Court dispenses with it; and and

f. Where the the appeal appeal is against a money decree, the appellant must deposit-the decretal amount amount or furnish the secur ity ity in respect thereof as per the direction of the Court.

Appeals From Fro m Appellate Decrees (Second Decrees (Second Appeal Sections 100 to 103 and Order 42) Section-100 Second Section-100 Second Appeal:

1. Save as otherwise provided in the body of this Code or by any other law for the time being being in force, an appeal shall shall lie to the High Court from every decree passed in appeal by any Court subor dinate dinate to the High Court, if the High Court is, satisfied that the case involves a substantial question of law. 2. An appeal may lie under this section from an appellate decree passed passed ex- parte. parte. 3.

In an appeal under this section, section, the memorandum of appeal shall precisely state state the substantial question of law involved in the appeal.

4. Where the High Court is satisfied satisfied that a substantial question of law is involved in any case, it shall formulate such question. 5. The appeal shall shall be heard on the question question so formulated formulated and the respondent shall, after hearing of the appeal, be allowed to argue that the case does not involve such question:

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Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. Substantial Question of Law: Means Law: Means a substantial question of law as between the parties in the case involved. A question of law is a substantial as between the parties if the decision turns one way or the other on the particular view of law. If it does not affect the decision, it cannot be said to be a substantial question of 29 law.

S U K M A K Form of Second Appeal; A Appeal; A memorandum of second appeal precisely states the substantial question of law involved, but, unlike the memorandum of 1st appeal, it need not set out the ground of objections to the decree appealed from. Order 41 Rule 1. Appeal From Orders (Section Orders (Section 104 and Order 43) Section 104: Orders 104: Orders from which appeal lies-

1. An appe appeal al shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or Code or by any law for the time being in force, from no other orders: I.

An order under Section 35 A; [Sec. 104(1) (ff)]

II. an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 Section 91 or Section 92 , as the case may be; [Sec. 104(1) (ffa)] III. an or der der under Section 95 ; [Sec.1 04(1) (g)]

IV. an or der under any of the provisions of the Code imposing a fine or directing the arrest arrest or or detention in the Civil Civil prison of any person except where such arrest or detention is in execution of execution of a decree; [Sec.104 [Sec.10 4 (1) (h)] V. an order made under rules from which an appeal is expressly allowed by rules; [Sec. 104(1) 104(1) (i)]

Provided that that no appeal shall lie against any ord er specified in clause (ff) save on the ground that that no order, or an order for for the payment of a less amount, ought to have been made. {Proviso to, Section 1 04( 04( 1 )} 2.

No app appea eall sha shall ll li lie e fro from m any any or orde derr pas passe sed d in in appe appeal al un under der th this is Se Sect ctio ion. n.

Section 105: a.

Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but, where a decree is appealed from, any error defect or irregularity in any order, affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.

b. Notwithstanding anything contained in sub-section sub-section (1) where any party aggrieved by an order of remand from which an appeal lies does not appeal there from, he shall thereafter be precluded from disputing its correctness.

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Section 106 : What Courts to hear appeals: Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court ( not being a High Court) in the exercise of appellate jurisdiction then to the High court. Appeals from Orders (Order XLIII) Rule-1: Appeals from Orders: An Orders: An appeal shall lie to the following orders under the provisions of Section 104, namely:

S U K M A K 1.

Rule-1 (a): An order under rule 10 of Order VII returning a plaint to be b e presented to the proper Court except where the procedure specified in Rule 10A of Order VII has been followed;

2.

Rule-1 (c): An order under rule 9 of Order IX rejecting an application (in a case open o pen to appeal) for an order to set aside the dismissal of a suit;

3.

Rule-1 (d): An (d): An order under rule 13 of Order IX rejecting an application (in a case open to to appeal) for an or der der to set aside a decree passed ex parte;

4.

Rule-1 (f) : An : An order under rule 21 of Order XI;

5.

document or of Rule-1 (i) : An : An order under rule 34 of Order XXI on an objection to the draft of a document endorsement; endo rsement;

6.

Rule-1 (j) : An : An order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside set aside a sale;

7.

Rule-1 (ja) : An : An order rejecting an application made under sub-rule (1) of rule 106 of of Order XXI, provided provi ded that an order on the original application, that is to say, the application referred to referred to in sub rule (1) of rule 105 of that Order is appealable.

8.

Rule-1 (k): An (k): An order under rule 9 of Order XXII refusing to set aside the abatement or dismissal dismissal of a suit;

9.

Rule-1 (I) : An : An order under rule 10 of Order XXII giving or refusing to give leave;

10.

Rule-1 (n) : An order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

11.

Rule-1 (na): An order under rule 5 or rule 7 of order XXXIII rejecting an application for permission to sue as an indigent person;

12.

Rule-1 (p) : Order in interpleader suits under rule 3, rule 4 or rule 6 of Order XXXV;

13.

Rule-1 (q) : An order under rule 2, rule 3 or rule 6 of Order XXXVIII;

14.

Rule-1 (r) : An order under rule 1, rule 2, 2 , rule 2A, rule" 4 or rule 10 of Order XXIX.

15.

Rule-1 (s) : An : An order under rule 1 or rule 4 of Order XL;

16.

Rule-1 (t) : An : An order of refusal under rule 19 of Order XLI to re- admit, or under rule 21 of Order XLI to

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re- hear, an appeal; 17.

Rule-1 (u) : An : An order under rule 23 or rule 23-A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court ;

18.

Rule-1 (w) : An : An order under rule 4 of Order XLVII XLVII granting an application for review.

S U K M A K 1. Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. 2. In an appeal against a decree passed In a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not have been recorded. Rule: 2. Procedure: Pro cedure: The The rules of Order XLI [{(and Order XLI-A) by Allahabad High Court Amendment}] Amendment}] shall apply, ap ply, so so far as may be, to appeals from orders. REFERENCE REFERENC E (Section - 113 and Order XIII)

Section 113 provides 113 provides provisions relating to reference and empowers any Court (subordinate (subordinate Court) to state a case and refer the same for the opinion of the High Court. Such an opinion can be sought sought when the Court itself feels feels some doubt about a question of law. The provisions are subject to such conditions conditions and limitations as may as may be prescribed. Object: The object for reference is to enable the subordinate Courts to obtain in non-appealable Object: The non-appealable cases the opinion of the High the High Court, on a question of law and thereby avoid the commission of an error which which could not 30 be remedied later on. Conditions for Applications: (Order 46 Rule 1) The following conditions must be fulfilled, fulfilled, before before High Court entertains entertains a reference from a sub-ordinate Court, i.e. 1. Pendenc Pendency: y: There There must be pendency of a suit or app eal in which the decree is not the subject ect to appeal or a pending pending proceeding in execution of such decree.

2. Question of law: law: A A question of law or usage u sage having the force of law must arise in the course of such suit, appeal or proceeding ; and 3.

Doubt in mind of Court: Court: The The Court trying the suit, appeal or executing the decree must entertain a reasonable doubt on such question.

Questions of law: The law: The subordinate Court may be in doubt relating to the questions of law, which may be1.

Those which relate to the validity of any Act, Ordinance Ordinance or Regulation and the reference upon such 31 questions quest ions of law are obligatory obligatory upon the fulfillment fulfillment of the following following conditions conditions : 1. It is necessa necessary ry to decide decide such such question question in order order to dispos dispose e of the case; case;

87

2. The Sub- ordinate ordinate Court Court is of the view that that the impugned impugned Act, Act, Ordinanc Ordinance e or Regulation Regulation is ultra vires; vires; and 3. That there there is no determinat determination ion by the Supreme Supreme Court Court or by the High High Court, to to which such such Court is Subordinate that such Act, Ordinance or Regulation is ultra vires. 2. Other Questions: Questions: In In this case the reference is optional.

S U K M A K 32

Procedure: Procedur e: Who can can make make Referenc Reference: e: A reference can be made by the Court suo-motu or on application of any party party.. Rule 1: The 1: The Referring Court must formulate the question of law and give its opinion thereon.

Rule 2: The 2: The Court may either stay the proceeding or may pass a decree or order, which cannot be executed until receipt of judgment of High court on reference. Rule 3: The 3: The High Court after hearing the parties, if it so desires, shall decide the point of reference and the Subordinate Court shall dispose of the case in accordance with the said decision. in s. 113 of the Provision as as in Section 113: The 113: The provisions relating to reference, as has been specified in s. Code are as under-

Section 113: Reference to High Court: Subject Court: Subject to such conditions and limitations as may be be prescribed, any court may may state a case and refer the same for the opinion of the High Court, and the Hig High h Court may make such or der der thereon as it thinks fit:

PROVIDED that where the court is satisfied that a case pending before it involves a question question 9S to the validity of any any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance Ordinance or Regulation, the the determination of which is necessary for the disposal of the case, and is of opinion opinion that such Act, Ordinan Ordinance, ce, Regulation or provision is invalid or inoperative, but has not been so declared declared by the High Court to which which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the the reasons therefor, and refer the same for the opinion of, the High Court. Explanation: In this section, "Regulation" means any Regulation of the Bengal, Bombay or Madras Explanation: In Madras Code of Regulation as as defined in the General Clauses Act, 1897 (10 of 1897), or in "the General Clauses Clauses Act of a State.

Powers and Duty of Referenci Referencing ng Court: A Court: A reference can be made on a question of law arisen between the parties litigating, in a suit, appeal or execution proceeding, during the pendency of such suit, appeal or proceeding and the Court is in doubt on such question of law. Powers and Duty of High Court: Court: The High Court entertains the consulting jurisdiction in cases of reference and can neither make any order on merits nor can it make suggestions. In case of reference the High Court may answer the question referred to it and send back the case to the referring Court for disposal in accordance with law.33 Where a case is referred to the High Court under Rule 1 of Order XLVI or under the proviso to section 113, the High Court may return the case for amendment, and may alter, a lter, cancel or setaside any decree or order which the Court making reference has passed or made in the case out of which 34 the reference reference arose, arose, and make make such such order as it thinks thinks fit. fit.

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Review (Section (Sectio n 114 and Order XLVII) Meaning: Review means re-examination or reconsideration of the case by the same judge. It is a judicial Meaning: Review re-examination of the case by the same Court and by the same Judge. In it, a Judge, who has disposed of the matter, reviews his earlier order in certain circumstances. Section 114 and Order XLVII: The XLVII: The provisions relating to review are provided in S. 114 (substantive right) and Order XLVII XLVII (procedure). The general rule is that once the judgment is signed and pronounced or an order is made by the Court, it has no jurisdiction to alter it. Review is an exception to this general rule.

S U K M A K Section 114:

Review: Subject Review: Subject as aforesaid, any person considering himself aggrieved

a. by a decree or order order from which which an appeal appeal is allowed allowed by this Code, Code, but from which which no appeal appeal has been preferred;

b. by a decree or order from which no appeal is allowed by this Code, or c. by a decision on a reference from a Court of Small Causes,

may apply for for a review of judgment to the Court which passed the decree or made the order and the Court may make such such order thereon as it thinks fit.

Who may apply ap ply to Review: Any Review: Any person aggrieved by a decree or order may apply for a review of review of Judgment where no appeal appeal is allowed or where an appeal is allo wed but no appeal has been filed against such against such decree 35 or order or by a by a decision decision on on a referenc reference e from a small small cause. cause.

An 'aggrieved 'aggrieved person'. means person'. means a person who has suffered a legal grievance or against whom whom a decision has been pronounced pronounced which has wrongfully deprived him of something or wrongfully refusedin refused in something 36 or wrongfully af wrongfully affecte fected d his title to somethi something. ng.

A person who who is is not a party to the decree or order cannot apply for review since on general principle principle of B.W, such decree or order is not binding on him and therefore he cannot be said to be an aggrievedperson aggrievedperson within the meaning of section 114 and order 47 Rule (1).

A party who has a right to appeal but does not file an appeal, may may apply for a review of judgment, even if notwithstanding the pendancy of an appeal by some other party, excepts? i.

Where the the ground ground of such such appeal appeal is comm common on to the the applicant applicant and the appella appellant, nt, or or

ii. When, being being respondent, respondent, he he can present present to the Appell Appellate ate Court Court the case case on which he applies applies for the the review.

Grounds of Review: Order Review: Order XLVII, Rule (1) provides the following grounds: i.

Discovery of new and importan Discovery importantt matter matter or evidence, evidence, which after after the the exercise exercise of due due diligence, diligence, was was not within his (aggrieved person's) knowledge or could not be produced by him (aggrieved person) at the time when the decree was passed or order made; or

89

ii. on account account of some some mistake mistake or error appear appear on the face of the record; record; or iii. for any any other other sufficie sufficient nt reason. reason. Explanation to section 114 specifically provides that "the fact that the decision on a question of law or which the judgment of the Court is based has been reserved or modified by the subsequent decision or a superior court in any other case, shall not be a ground for review of such judgment".

S U K M A K Procedure: Where the Court is of the opinion that there is not sufficient ground for a review, it shall reject Procedure: Where 38 39 the applicati application on otherw otherwise ise it shall shall grant grant the same same but no such such applicati application on shall be grantee grantee without without previous previous notice to the opposite party; to enable him to appea r and be heard in support of the decree or order, a review 40 of which is applied for. Where more than one Judge hears a review application application and the Court is equally 41 divided divide d the applica application tion shall shall be be rejected. rejected. Appeal Against Order on application U/s 114: An order of the Court rejecting the application shall no be appealable, but an order granting the application may be objected to at once by an appeal fr om the order 42 granting the application application or in an appeal from the decree or order finally passed or made in the suit. Bar of Certain Certain Application Application:: No application to review an order made on an application for a review or ' 43 decree or order order passed passed or made made on a review review shall shall be entertain entertained. ed. REVISION (SECTION (SECTION 115)

Meaning: 'R 'Revision' evision' means "the action of revising, especially critical or careful examination or perusal perusal with 44 a view to corr ecting ecting or improving". improving". Revis Revision ion is "the act of examining examining action action in order to remove remove an an defect or grant relief against against the irregular or improper exercise or non- exercise of jurisdiction by a lowerCourt". lower Court".

Object: The object of Section 115 is to prevent the subordinate Courts from acting arbitrarily, Object: The arbitrarily, capricious and illegally or irregularly in the exercise of their jurisdiction. It enables the Court to correct, correct, when necessary, errors errors of jurisdiction 'committed by the subordinate Courts and provides the means to G aggrieved party party to obtain rectification of o f a non- appealable order. The powers U/s 115 are intended intended to meet the ends of justice justice and where substantial justice has been rendered by the order of the lower Court Court the High Court will not interfere. not interfere. Provision U/s 115: 1.

The Hig High h Court Court may cal calll for for the the rec record ord of any cas case e which which has bee been n decid decided ed by by any any COl sub subord ordina inate te to such High Court and in which no appeal lies thereto, and if such subordinate court appearsa. to have have exercised exercised a jurisdic jurisdiction tion not vest vested ed in it by law law,, or b. to have have failed failed to exercis exercise e a jurisdict jurisdiction ion so veste vested, d, or

c. to have acted acted in the exercise exercise of its jurisdicti jurisdiction on illegally illegally or with material material irregularit irregularity y, The High Court may make such order in the case as it thinks fit :

90

PROVIDED that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. 2.

The High Court shall not, under this section vary or reverse any decree or order against Which an appeal lies either to the High Court or to any court subordinate thereto.

3. A revision shall not operate as a stay of suit or other proceeding proceeding before the court except where such such suit or other proceeding is stayed by the High Court.

S U K M A K Explanation: In this section, the expression "any case which has been decided" includes any order made, Explanation: In or any order deciding an issue, in the course of a suit or other proceeding. Provision relating to Revision in Uttar Pradesh: For S. 115, the following section shall be substituted and be deemed to have been substituted with effect from July 1, 2002, namely: "115. Revision Revisi on -

1. A superi superio or Court may revise an order passed in a case decided in an original origina l suit or other proceeding proceeding by a subordinate subordinate Court where no appeal lies against' the' order and where the subordinate Court Court has : a) exercised a jurisdiction not vested in it by law; or b) failed to exercise a jurisdiction so vested; or

c) acted in exercise of its jurisdiction illeg ally or with material irregularity.

2. A revisio revision n application under sub-section (1 ),.when filed in the High Court. shall contain a certificate on the first page page of such application, below the title .0Mhe' case, to the effect e ffect that no revision in the in the case lies to the district district Court but lies only to the High Court either because of valuation or because because the order sought to be to be revised was passed by the district Court. 3. The supe superior rior Court shall not, under this section, vary or reverse any order made except where-, where-,

a. the order, if it had been made in favour of the party applying for revision, would would have finally disposed of the suit or other proceeding; or

b. the order, order, if allowed to stand, stand, would would occasion occasion a failure failure of justice justice or cause irreparabl irreparable e injury to the party against whom it is made.

4. A revision shall not operate operate as a stay of suit or other other proceeding before the Court Court except where such suit or other proceeding is stayed by the superior Court. Explanation Explanati on I : In this section,a)

the ex the expr pres ess sio ion n "s "sup uper erio iorr Co Cour urtt" mea eans ns-I. the district Court, where the valuation of a case decided by a Court subordinate to it does not exceed five lakh rupees;

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ii. the High Court, where the order sought to be revised was passed in a case decided by the district district Court or where the value of the original suit or other proceedings in a case decided by a Court subordinate to the district Court exceeds five lakh rupees. b)

the exp expres ressio sion n "ord "order" er" inc includ ludes es an ord order er dec decidi iding ng an iss issue ue in any ori origin ginal al sui suitt or or othe otherr proceedings.

Explanation II: Explanation II: The The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement."commenc ement."-U.P U.P.. Act 14 of 2003, S.2 (w.e.f. 1-7-2002). 1-7-2002) .

S U K M A K Conditions: The Conditions: The following conditions must be satisfied before the revisional power can be exercised: a. a case case mus mustt have have been dec decide ided; d;

b. the Court Court deciding deciding the case case must be one which which is a Court Court sub-ordinat sub-ordinate e to the High High Court or the the Session Courts, as the case may be;

c. the order should be one in which no appeal lies; and d. the sub-ordinate Court must have

i. exercised jurisdiction not vested in it by law; or ii.failed ii. failed to exercise jurisdiction vested in it; or

iii. acted in the exercise of its jurisdiction illegally or with material irregular ity.

Application of S. 115: “…….While “……. While exercising its jurisdiction U/s 115, it is not competent to the the High Court to correct err ors ors of fact, however gross they may be, or even errors of law, unless the said errors said errors have relations to the the jurisdiction of the Court to try the dispute itself. As cis. (a), (b) and (c) of section 115 indica indicate, te, it is only in cases c ases where the sub-ordinate Court has exercised a jurisdiction not vested in it by by law, or has failed to exer cise cise a jurisdiction illegally or with material irregularity that the revisional jurisdiction jurisdiction of the High 45 Court can be properly be properly invoked...."

It was decided decided by the Supreme Court in re Smt. Vidyavati Vs Shri Devidas AIR 1977 S. C. C. 397, that a revision against against order on review application by sub-judge to High Court directly without going into into appeal to District Court, Court, is maintainable.

Meaning of Expression "case Decided": Apex Court in Baldevdas v. Filmistan Distribut ors Distribut ors AIR AIR 1970 SC, held that a case may be said to have been decided if the Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy. Every order in the suit cannot be regarded as a case decided within the meaning of S. 115. 115. Explanation to S.115, which was added by the Amendment Act of 1976, makes it clear that the expression "case decided" includes any order made, or any order deciding an issue, in the course of a suit or proceeding. The expression 'any case which has been decided', now, after the Amendment Act means 46 "each decision which terminates a part of the controversy involving the question of jurisdiction. jurisdiction. 47

Interlocutory Orders: Section Orders: Section 115 applies even to interlocutory orders. Interlocutory Orders Orders which are not appealable are subject to revision U/s 115 of the Code, if the conditions laid down in the section are fulfilled.

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Limitation for Revision: The Revision: The period of limitation for revision application is 90 da s ... ecree or order sought to be revised. Abatement: The provisions of Order XXII do not apply to revision application and such application does of Abatement: The abate on the death of the applicant or on account of failure to bring legal heirs of d eceased applicant record. No letters patent appeal lies from an order made in the exercise of revisional jurisdiction and no revision lies against an order passed by a single judge of a High Court.

S U K M A K RESTITUTION

48

Restitution is "an act act of restoring a thing thing to its proper owner", and means restoring to a party the benefit which the other party has received under a decree subsequently held to be wrong. The provisions 'elating to restitution have been provided in section 144 of the Code. Section 144 does not confer any new substantive right. It merely regulates the power of the court in that behalf. The doctrine of doctrine of restitution is an equitable principle and is based upon the well-known maxim "actus uriae neminem gr avabit", avabit ", i.e. the act of court shall harm no one.

Lord Cairns has Cairns has explained in Alexender Roser v Comptoir D's Escompte de Paris, (18 71) LR 3 PC that "one of the the first and highest duties of all courts is to take care that the act of the court does does no injury to the suitors". The law also imposes an obligation on the party who received benefit of an an erroneous judgment to make restitution to the other party for what he has lost; and it is the duty of the court court to enforce this obligation. obligation. Meaning: Th The e principle of the doctrine of restitution is that, on the reversal of a decree the law imposes law imposes an obligation on the on the party to the suit who received an unjust benefit of the erroneous decree to make make restitution to the other party party for what he has lost. The obligation arises automatically on the reversal or modification modification of the decree and and necessarily carries with it the right to restitution of all that has been done don e under the erroneous decree; decree; and the court in making the restitution is bound to restore the parties, so far far as they can be restored, to the same position they were in at the time when the court by its erroneous erroneous action had displaced them them from,

Illustration: A obtains a decree against B for possession Illustration: A possession of immovable property and in execution execution of the decree obtains possession thereof. The decree is subsequently reversed in appeal. B is entitled under his section to restitution of the property, even though there .is----no direction for restitution in the decree of the appellate Court. Conditions: Before restitution can be ordered under this section, the following three conditions must be Conditions: Before satisfied:

a. The restitutio restitution n sought must must be in respect respect of the decree decree or order which which had been reverse reversed d or varied; b. The party party applying applying for restituti restitution on must be entitled entitled to benefit benefit under under the reversing reversing decree decree or order; and

93

c. The relief relief claimed claimed must be properly properly consequ consequential ential on the the reversal reversal or variation variation of the the decree decree or order. In other words, (i) there must be an erroneous judgment; (ii) the benefit of that erroneous judgment has been received by one party; and (iii) the erroneous judgment has been reversed, set aside or modified. If these conditions are satisfied, the court must g rant restitution. It is not discretionary but obligatory.

S U K M A K Who May Apply? : In : In order to entitle a person to apply under this section, two conditions must be satisfied: a. He must must be a party to the decree or order order varied varied or revers reversed. ed.

The expression "party" is not confined to mean only a technical party to the suit or appeal but includes any beneficiary under the final judgment; and

b. He must have have become entitled entitled to any benefit benefit by way of restitut restitution ion or otherwise otherwise under the the reversing reversing decree decre e or order. Thus, a Thus, a trespasser cannot get restitution. re stitution.

Against Whom Whom Restitution Can be Granted: Restitution Granted: Restitution can be ordered under this section section not only against the party party to the litigation, but also against his legal representatives, e.g., transferee pendente pendente lite, attaching decree-holder, decree-holder, etc. Section 144 applies only to the parties or their representativesand representatives and does not apply to sureties. sureties. Hence, restitution cannot be claimed against a surety. It also cannot be gran granted ted against a bona fide auction-purchaser. auction-purchaser.

Who May Gr ant ant Restitution: An Restitution: An application for restitution lies to the court which has passed the the decree or made the order. order. Inherent Power Power to Grant Restitution: Section Restitution: Section 144 of the Code embodying the doctrine of restitution restitution does not confer any any new substantive right to the party. not available under the general law. It merelyregulates merelyregulates the power of courts. courts. The doctrine is based on equity and against unjust enrichment. Section Sectio n 144 is not exhaustive. Hence, Hence, there is always an inherent inh erent jurisdiction to order restitution.

Limitation and and Appeal: An Appeal: An application under Section 144 is an application for execution of a decree decree and is governed by Article by Article 136 of the Limitation Limitation Act, 1963. The period of limitation for such an applic applicator ator is twelve years and it will start from the date of the appellate decree or order. The determination of (question under Section 144 has been expressly declared to be a "decree" under Section 2(2) of the Code and is, therefore, appealable. CAVEAT CAVEA T (Section (Secti on 148-A)

Meaning: The word has not been defined in the Code. Literally, Meaning: The Literally, means "let him beware", a forma notice. It is a caution registered in a public Court or office to indicate to the officials that they are not to act in the matter mentioned in the caveat without first giving notice to the caveat.

Caveat meant "anything in the nature of an opposition at any stage, and is not confined to the opposition at 49 the great seal, seal, which which was the meaning meaning of 'caveat' 'caveat' under the old practic practice". e".

94

It is a legal notice given by an interested party to some officers not to do a certain act until the party in heard in opposition. Provision: Section Provision: Section 148-A of the Code provides for lodging of a caveat. Section 148-A: Right 148-A: Right to lodge a caveat: 1. Where an applicati application on is expected expected to be made, or has been been made, in a suit or proceedin proceeding g instituted, instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

S U K M A K 2. Where a caveat caveat has been been lodged under under sub-sectio sub-section n (1), the person person by whom whom the caveat caveat has been been lodged (hereinafter referred to as the caveat or) shall serve a notice of the caveat by registered post, acknowledgment due, on the person by whom the application has been, or is expected to be, made under sub-section (1). 3. Where, after after a caveat has been lodged under sub-section (1), any application is filed in i n any suit or proceeding, proceedi ng, the Court shall serve a notice of the application on the caveator.

4. Where a notice of any caveat has been served on the applicant, he shall forthwith furnishthe furnish the caveator, at the caveator's caveator's expense, with a copy of the application made by him and also with copies of copies of any paper or document document which have been, or may ,be, .filed by 'him in support of the application. 5. Where a caveat has been lodged under sub-section (1), such caveat shall not remain in f orce after the expiry of ninety days from the date on which it was lodged unless the application referr ed ed to in subsection (1) (1) has been made before the expiry of the said period.

Where caveat caveat lie: According lie: According to S. 148-A, a caveat can be lodged in a suit or proceeding. The The expression 50 'Civil Proceeding' Proceeding' in S. 141 of the, Code includes all proceedings, which are not original proceed proceedings. Where caveat caveat does not lie : The : The provisions of section 148-A are applicable only in the cases cases where the' caveator is entitled entitled to be heard before any order is made on the application already filed or pr oposed to be filed, but does does not apply in cases where the Code does not contemplate notice.

Who can file caveat: file caveat: A A necessary as well as proper party may lodge a caveat U/s 148-A. A ca caveat veat may be filed by any person who is going to be affected by an interim order likely to be passed on an application 51 which is expected to be made in a suit or proceeding instituted or about to be instituted in a Court.

Who may not file cavpat: A cavpat: A stranger to the proceeding or a person supporting the application for interim relief made by the applicant cannot lodge a caveat.

Time Limit: According Limit: According to sub-section (5), a caveat filed U/s 148-A (1) shall remain in force for ninety days from the date of its filing.

Failure to hear Caveator: Once Caveator: Once a caveat is filed, it is a condition precedent for passing an interim order to serve a notice of the application on the caveator who is going to be affected by the interim order. But an interim order passed without hearing the caveator is not without jurisdiction and operates unless set-aside.

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INHERENT POWERS OF COURTS COUR TS (SECTIONS 148, 149 AND 151 TO 153-A) General: Every General: Every Court is constituted for the purpose of administering justice between the parties and, therefore, must be deemed to possess, as a necessary corollary, all such powers as may be necessary to do the right and to undo the wrong in the course of administration of justice. The Code is a procedural law and the provisions thereof must be liberally construed to advance the cause of justice and further its ends. The inherent powers are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and the Court is free to exercise them for the ends of justice or to prevent the abuse of the process of the Court.

S U K M A K The Code is not exhaustive and for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigations, inherent powers come to the rescue in such unforeseen circumstances.

As Ragbubar Dayal, Justice in Manobarlal. Mano barlal. V Seth Heeralal AIR 1962 SC, rightly states: ''The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between betwe en the parties before it." Thus, this power is necessary in the interest of justice. justice. Sections 148,149,151,152,153 148,149,151 ,152,153 and 153-A of the Code enact the Law relating to the inherent powers of a Court in different circumstances. circumstances. 1.

Enlargement of time: Section 148

2.

Payment of Court Fees: Section 149

3.

Under Section 151:-

4.

i)

Ends of Justice: Section 151

ii)

Abuse of Process of Court: Section 151

Amendments of Judgments, Decrees, Orders and Others Records: Sections 152, 153 and 153-A

1. Enlarge Enlargement ment of time Section 148: Provides 148: Provides that where any period is fixed or granted by the by the Court for the doing of doing of any act, the Court has power to enlarge the said period even if the original original period has expired on on fulfillment of two Conditions: i) ii)

A period must have been fixed or granted by the Court; and Such period must be for doing an act prescribed or allowed by the Code.

2. Payment of Court Fees Section 149: Empowers the Court to allow a party to make up the deficiency of Court Fees payable on a plaint, memorandum of appeal, etc. even after the expiry of the period of limitation prescribed for filing of such suits, appeals etc. Section 4 of Court Fees act, 1870 provides that no document chargeable with Court Fee under the Act shall be filed or recorded in any Court of Justice, unless the required Court fee is paid. This section is a sort of proviso to that rule by allowing the deficit to be made good within the time fixed by the Court. If the proper Court fee is not paid at the timing of filing suitor appeal etc., but the deficit Court fee is paid within the time fixed by the Court, it cannot be treated as time barred. The defective document is retrospectively validated for the purposes of limitation as weLl as Court fees. 3. Ends of Justice: Section 151: 151: The The inherent powers saved by section 151 can be used to secure the

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ends of justice. Thus the Court can recall its own Orders and correct mistakes, ca set aside as ex parte order against the party, etc. etc. What would meet the ends of justice would always depend upon the facts and circumstances of each case and the requirements of justice. 4. Abuse of process of Court: Section 151: 151: The The inherent powers saved by section 151 can also be used to prevent the abuse of the process of a Court, which may be committed by a Court itself or by a party. Abuses by a Court: Where Court: Where a Court employs a procedure in doing something which it never intended to do and there is miscarriage of justice, the injustice so done to the party must be remedied on the basis of the doctrine actus curiae neminem gravabit (an act of the Court shall harm no one)

S U K M A K Abuses by a Party: e.g., Party: e.g., by obtaining benefits by practising fraud on the Court, or upon a party to the suit, or circumventing the statutory provisions etc, etc.

5. Amendments of Judgments, Decrees, Order and Other Records : Sections 152, 153 and 153-A:

Sections 152 : Enacts Sections 152 : Enacts the clerical or arithmetical mistakes in judgments, decrees and orders orders arising from any accidental slip or omissions; may at any time be corrected by the Court either of its its own motion (suo moto) moto) or on application of any of the parties. The section section 1s based upon two important principles: i)

an act of the Court should not prejudice any party, and

ii)

it is the duty' of the Courts to see that their records are true and they represent the correct state of affairs.

Illustration: A files a suit against B for Rs. 10,000/- and interest in a Court X. The Court passes passes a a decree for RS.1 0,000/- as 0,000/- as prayed. The decree can be amended under this section,

A files a suit against B for Rs. 10,000/- and interest in a Court X. The Court passes a decree for Rs.5,OOO/ Rs.5,OOO/only and nothing nothing more. A applies to amend the decree by adding a prayer for the interest. The The decree can not be amended amended under this section. If aggrieved by the decree, A may file an appeal or an application application for review.

Sections 153: 153: Confers Confers a general power on the Court to amend defects or erro rs in "any proceeding proceeding in a suit" and to make all necessary amendments for the purpose of d etermining the real question at the issue between the parties to ,the suit or proceedings.

Sections 153-A: Provides 153-A: Provides that where the appellate Court dismisses an appeal summarily under Order 41, Rule 11, the power of amendment under Section 152 can be exercised by the Court of the first instance. Ambit and Scope: Of Scope: Of inherent powers of a Court u/s 151 by Subba Rao, Justice, as he then was in Ram Chand V Kanhayalal AIR, 1966 SC 1899, after considering all the legal cases on the subject pronounced;

"The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But the power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary

97

implication that no power shall be exercised in respect of the said topic otherwise than in manner prescribed by the said provisions. provisions. Whatever limitations are imposed by construction on the provisions of section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court .”

IMPORTANT QUESTIONS

S U K M A K Q.1.

Exception to the rule that Exception that when when once judgme judgment nt has been pronounc pronounced ed and signed signed by by the court, court, the court can not alter it. Discuss.

Q.2.. Q.2

Whatt do you unde Wha underst rstand and by by inheren inherentt powers powers of of civil civil court court? ? Discus Discuss. s.

Q.3.

Define Defin e injuncti injunction on and and state state its kinds kinds.. When When can can a tempor temporary ary injunc injunction tion be issued? issued?

Q.4.

Explain Expl ain the the powers powers of of an appell appellate ate court. court. Can additio additional nal evidenc evidence e be allowe allowed d in appeal appeal? ?

Q.5.

What are the powers of the courts to issue commissions? For what purposes a commission commission can be issued issue d by the court?

Q.7.

What are the powers of the courts to issue commissions? For what purposes a commission commission can be issued issue d by the court?

Q.8.

What are the Powers of a Court of revision? Explain. a) Letter of Request

Q.9.

b)

Arrest before judgment.

c)

Attachment before judgment.

d)

Interlocutory Order

e)

Restitution

f)

Caveat

Distinguish between the following: Distinguish a)

Appeal and Revision

b)

Reference and Revision

c)

Reference and Review

d)

Appeal and Review

References: 1.

Ord rder er XXVI, Ru Rule les s 1, 1, 3, 3, 4-A 4-A;; Sec Secttio ions ns 76 76,,77 77,7 ,78 8

2.

Order XXVI, Rule 4

3.

Order XXVI, Rule 4

4.

Order XXVI, Rule 4

5.

Order XXVI, Rule 5

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6.

Section 95

7.

Mar arli lin n Bur Burn n Lim Limit ited ed v. Ban Banar arje jee e AIR 195 1958 8 SC SC

8.

Order XXXIX, Rule 3

9.

Order XXXIX, Rule 4

10.

Section 94(c)

11.

Order XX XXXIX, Ru Rule 8 (1)

S U K M A K 12.


13.

Order XXXIX, Rule 6

14.

Order XXXIX, Rule 7 (1 (1) (a (a)

15.

Order XXXIX, Rule 7 (1 (1) (b (b)

16.

Order XX XXXIX, Ru Rule 7 (1) (c (c)

17.


18.

Order XXXIX, Rule 9

19.

Order XXXIX, Rule 10

20.

By Kerr, in Kerr on Receiver

21.

Jagat tarani Dasi v. Naba Gopal Chaki AIR (1907) Cal. 34

22.

Hiralal v. Loonkaran Sethiya AIR 1962 SC

23.

Section 94 (d)Order XL

24.

Order XL Rule 2

25.

See also Rule 1(2)

26.

Rules 3 and 4

27.

Garikapati V Subbiah Choudhry Choudhry,, AIR 1957 SC 540

28.

Section 97

29.

Harkishan Das V Satya Prasad AIR 1953 All

30.

Chhotubhai v. Bai kanshi AIR 1941 Bombay 3.1. Proviso to Section 113

31.

Order XLVI

32.

Order XLVI, Rule 3

33.

Order XLVI, Rule 5

34.

Order XLVII, Rule 1(1)

35.. 35

Side Si debo both tham am,, ex expa part rte e (1 (188 880) 0) 14 Ch Ch.. D.

36.

Order XL XLVII, Ru Rule 1( 1(2)

37.


38.


39.

Proviso to Rule 4 .

40.

Order XL XLVII, Ru Rule 6 (1)

41.

Order XL XLVII, Ru Rule 7 (1)

42.

Order XL XLVII, Ru Rule 9

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43.. 43

Oxford En English Di Diction ona ary

44.

Pand Pa ndur uran ang g v. v. Maru Maruti ti AI AIR R 1966. 1966. SC by Gaj Gajen endr drag agadk adkar ar J

45.. 45

Gula Gu lam m ras rasoo ooll v. v. Mar Mariy iyam am,, AI AIR R 198 1980 0 Raj Raj..

46.. 46

Majo Ma jorr Khan Khanna na v. v. Brig Brigad adie ierr Dill Dillon on AI AIR R 1964 1964 SC SC

47.

Concise Ox Oxford Di Diction ona ary

48.

Lord Lo rd Cai Cairn rns, s, L.C L.C.. in Jo John hnso son, n,s s Pate Patent nt,, (188 (1880) 0) 13 13 Ch D. 39 398 8

S U K M A K 49.. 49

Ram Ra m Cha Chand ndra ra v. v. Sta State te of U. U.P P. AI AIR R 196 1966 6 SC SC

50.

Nirm Ni rmal al Ch Chan and d v. v. Gir Girin indra dra na nara raya yan, n, AI AIR R 197 1978 8 Cal Cal..

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S U K M A K UNIT – V

INDIAN LIMITATION ACT, 1963 (W.E.F. 01-01-1964)

Law of Limitations Limitations:: The Law of Limitations limits or prescribes a time after the lapse of which suit or other proceedings cannot be maintained in a Court of law or the persons liable to sue shall become exempt from answering therein. therein. It does not postpone or suspend the right of claimants, it merely prescribes prescribes a period for the institution of institution of suit and forbids them from being brought after periods, each of which starts start s from some definite event. event. It only restrains the holder of a right from enforcing his right by recourse recourse to law after prescribed period period of limitation. Nature of Act: Act: "The "The rule of limitation is a rule of procedure, a branch of adjective law. The The intention intention of the law of limitation limitation is not to create a right where there is none, nor to extinguish a right where there is there is one, but to interpose a bar bar after a certain period to enforce an existing right."1 The plea of limitation can be be raised only as against the the plaintiff and not against the d efendant. Law is "lex " lex f eri": It eri": It means whether an obligation is to be enforced or not depends exclusively exclusivelyupon upon the law of limitations of the country in which the suit is brought (lex feri)

Act is a Complete Com plete Code: The Limitation Act is an exhaustive code governing law of limitation limitation in India in respect of all matters all matters specifically dealt with by it and the Indian Courts are not permitted to travel travel beyond its provisions to add to add or to supplement them. Interpretation Clause2: Interpretation Clause2: In this Act, unless the context otherwise requires a) "a "app ppli lica cant nt"" inclu include dessi.

A petitioner;

ii. Any person person from from or throug through h whom an applicant applicant deriv derives es his right to apply; apply; iii. any perso person n whose estate estate is represented represented by the applicant applicant as executor executor,, administrato administratorr or other representative;

b) “appli “applicat cation ion”” includ includes es a petit petition; ion; c) "bill of exchang exchange" e" include includes s a hundi and a cheque cheque;;

d)

“defendant” includes-

e)

"bond" "bo nd" inc include ludes s any any ins instru trumen mentt wher whereby eby a pers person on obl oblige iges s hims himself elf to pay mon money ey to ano anothe therr,

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on condition that the obligation shall be void if a specified act is performed or is not performed, as the case may be; any person from or through whom a defendant derives his liability to be sued; any person whose estate is represented by the defendant as executor, administrator other representative;

S U K M A K f) "easement" includes a right not arising from contract, contract, by which which one person is entitled to remove remove and appropriate for his own profit any part of the soil belonging to another or anything growing in or attached to, or subsisting upon, the land of another;

g) "good faith"-nothing shall be deemed to be done in good faith faith which is not done with due care and attention; h) "plaintiff includes-

i) any person person from or through through whom a plaintif plaintifff Jerives Jerives his right right to to sue; sue; ii) any person whose estate is represented by the plaintiff as executor, administrator or other representative;

j) "period "period of limitation" means the period of limitation prescribed for any suit, appeal or or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act; k) "p "promissory romissory note" means any instrument whereby the maker engages absolutely absolutely to pay a specified sum of money to another at a time therein limited, or on demand, or at sight; sight; l)

"tort" means a civil wrong which is not exclusively the breach of a contract or the the breach of a tr ust; ust;

m)

"trustee" does not include a benamidar, a mortgagee remaining in possession possession after the mortgagee has been satisfied Or a person in wrongful possession without title.

LIMITATION OF LIMITATION OF SUITS, APPEAL APPEA L AND APPLICATIONS APPLICATIONS

Period of Limitation: Law Limitation: Law of limitation is based on well known maxim "Interest republica ut sit finis litum" i.e., It is in the interest of the State that there should be an end to Initiative process. The law of limitation is based on the principle that the law aids the diligent and not the indolent, that a man who has negligently slept over his rights for an undue length of time will not be allowed to litigate in respect of them. Law of Limitation is an absolute law and the parties cannot evade it by way of private agreement. Thus under Section 28 of the Contract Act, an agreement which limits the time within which any party thereto may enforce his rights by the usual legal proceedings in ordinary tribunals is void. Similarly, an agreement between the parties that defendant will not plead the law of limitation in a suit brought against him by the other is void. In Livi v. Raingi 3 Born 207 , it was observed that the object of the Act is not to create or define causes o f

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action but simply to prescribe the period within which existing rights can be enforced in Court of Law. Section 3 (1) of the Limitation Act Act provides as under: "Subject to the provisions contained in Sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."

S U K M A K So Section 3 of Limitation Act gives the general rule of limitation by providing that a suit or an appeal or an application filed beyond the time prescribed there for shall be dismissed although limitation is not set up as defence by opposite party. In Ashok K. Khurana v. Mis Steelman Industries and other s, AIR 2000 Delhi 336 it was observed:

"Mere reading of Section 3 of the Act shows that it is mandatory and absolute in nature. It enjoins upon the court to dismiss any suit instituted, appeal preferred or application made after the prescribed period of limitation, although although limitation has not been set up as a defence. Courts have no discretion discretion or inherent powers to condone condone the delay if the suit is filed beyond the prescribed, period of limitation, rather rather a duty is cast on the court court to dismiss the suit, appeal or application if the same is barred by limitation unless unless matter is covered by Sections Sections 4 to 24 of the Act."

So it becomes becomes clear that provisions of Section 3 of the Act are mandatory in nature. Section 3 enjoins enjoins a court to dismiss every every suit, appeal or application, which is not within the prescribed period. Gatew Gateways ays from the peremptory provisions provisions of Section 3 are provided by Sections 4 to 24. In other words, the court has has no power, p ower, apart from the the provisions of Sections 4 to 24, to relieve a litigant from the bar of limitation even on even on equitable consideration consideratio n or on grounds of hardship or in exercise of its inherent powers. Section 4 of the the Act provid8s that where the prescribed period for any suit, appeal or application application expires on a day when the the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court the court reopens. Then Section 5 of the Act provides that an appeal or any application application other than the application application under any of the provisions of order Order 21 of the Code of Civil Procedure Procedure may be admitted after after the prescribed period if the appellant or applicant satisfies the Court that he has has sufficient cause for not preferring not preferring an appeal or making the application within such period. Sections 6 to to 8 of the Act extend the period period of limitation in cases where the limitation expires before the cessation of disability, disability, i.e., minority, minori ty, insa insanity nity or idiocy.

Sections 12 to 15 of the Act provide for excluding certain periods in computing the period of limitation. Then Sections 16 to 24 of the Act provide for the e ffect of death, fraud, mistake, acknowledgement 'in writing, part payment, addition or substitution of new plaintiffs or defendants, and continuous wrong. In such cases, the Act provides the date from which the fresh period of limitation shall begin to run. “Limitation bars the remedy but does not destroy the right”

Section 3 of Indian Limitation lays down the general rule of Limitation Act and reads as under: "Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed; although limitation has not been set up as a defence."

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The Limitation Act thus prescribes period within which various suits, appeals or applications for respective claims can be instituted in courts of law. If a party or claimant fails to do so, it cannot claim any further remedy at law. The rule of limitation is a rule of procedure. It does not either create or extinguish a right. In the words of Sir Richard Couch in Harrynath H arrynath v. Mather, 20 LA. 188: LA. 188: "The intention of the law of limitation is not to give right where there is none nor to extinguish a right where there is one but to interpose a bar after a certain period to a suit to enforce an existing right."

S U K M A K Limitation thus simply bars the judicial remedy, without extinguishing the right. For example, where the recovery of a debt has become time barred by the lapse of prescribed time, the right to the debt is not extinguished and the same applise to the debtor without being aware of the money due to him on the ground that his claim for recovery of the debt had become time barred.

In Punjab National Bank and others v. Surendera Prasad Sinha, AIR 1992 SC 1815 Section 3 of Limitation Act bars the remedy but does not destroy the right to which the remedy relates. Right to debt continues debt continues to exist notwithstanding notwithstanding remedy is barred. Right can be exercise in any other manner than by means means of suit. It is settled law that law that the creditor would be entitled to adjust, from payment of sum by debtor towards towards time barred debt. It is also equally settled law that creditor when he is in possession of adequate security debt due could be adjusted be adjusted from security in his possession. Law of Limitation Limitation is an absolute law and the parties cannot evade it by way of private agreement. agreement. Thus under Section Section 28 of the Contract Act, an agreement which limits the time within which any party party thereto thereto may enforce his r ights ights by the usual legal proceedings in ordinary tribunals is void. Similarly, an an agreement between the parties that defendant will not plead the law of limitation in a suit brought against against him by the other is void. Exception: However However,, there is one exception to rule that law of limitation bars the remedy but not the right. This has been been incorporated in Section 27 of the Act. The Section provides: "At the deter mination mination of the period hereby limited to any person for instituting a suit for posse possession ssion of any property his r ight ight to such property shall be extinguished. "

In First National National Bank Ltd. v. Seth Santlal, AIR 1954 Punjab 328 it was observed: "Section "Section 27 of the Limitation Act is, however, however, an exception to the general rule that in personal actions, a ctions, the Limitation Act bars only the remedy and does not extinguish the right. In a suit for possession of any property on the determination of the period of limitation net only the remedy but the right also, is extinguished under Section 27. But a debt does not cease to be due, because it cannot be recovered after the expiration of the period of limitation provided for instituting a suit for its recovery. recovery. After a debt becomes barred a person is still deemed to owe." EFFECT OF SUFFICIENT CAUSE FOR NOT PREFERRING APPEALS OR MAKING APPLICATIONS WITHIN THE PERIOD PER IOD OF LIMITATION LIMITATION

The provisions of Section 5 of the Act are an exception to the general ru le laid down in Section 3 that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed.

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Section 5 of 5 of Indian Limitation Act provides: "Any appeal or any application other than an -application under any of the provisions of Order XXI of Code of Civil Procedure 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making tire application within such period." Explanation says: If the appellant or the applicant was misled by the order, practice or judgment of the High Court in ascertaining or computing the prescribed period, it may be a sufficient cause within the meaning of this Section for extension of period of limitation.

S U K M A K It will be seen from the above that the provisions contained in Section 5 applies only to appeal and certain applications mentioned therein and not to the suits. The reason is that period prescribed for applications and appeals mentioned in this Section does not exceed six months while for suit it extends from 3 to 12 years. Therefore, this conclusion has been given in this Section for applications and appeals in certain circumstances. 'Sufficient Cause': Cause': It It is necessary to get the benefit of this Section that the court must be satisfied satisfied with the 'sufficient cause' cause' for not preferring the appeal or application. The term 'sufficient cause' used here has not been defined in defined in this Act. Its meaning, therefore, can be accepted as a cause, which is beyond the control of the party invoking invoking the aid of this Section. This term 'sufficient cause' must of course, be gi ven a liberal meaning so as to advance substantial justice when any negligence or inaction or want of bona bona fide is 'not imputable to the appellant. The sufficient cause can be determined from the facts and circumstances circumstances of a particular case. case. So any appeal appeal or application (other than one made under Order XXI of C,P.C.) may be admitted admitted after prescribed period period if appellant or applicant as the case may be shows "sufficient cause" for not not preferring appeal or making making application within the prescribed period. But mere proof of existence of "Sufficient cient Cause" for not filing the the proceeding within the prescribed period does not, under the section, ipso facto facto compel the Court to extend extend the time. The court has a discretion to admit or refuse the proceeding even' even' if sufficient cause is shown, shown, In Sandhya Rani v. Sudha Rani AIR 1978 SC 537 Supreme Court observed:

"It is undoubtedly undoubtedly true that in dealing with the question of condoning the delay under Sectio Section n 5, the party seeking relief relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or or making the application within the prescribed time and this has always been understood to mean that the Explanation has to cover the whole period of delay. However it is not possible to lay down precisely as to what facts or matters would constitute 'sufficient cause' under Section 5. But those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bona fides is imputable to a party, i.e., the delay in filing an application should not have been for reasons which indicate the party's negligence in not taking necessary steps which he would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case. Discretion is conferred on the Court before which an application for condoning delay is made and if the Court after keeping in view relevant principles exercises its discretion granting relief unless it is shown to be manifestly unjust or perverse, the Supreme Court would be loathe to interfere with it." Explanation to Section 5 says that "the fact that the appellant or the applicant was misled by any order,

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practice or judgment of the High Court in ascertaining or computing the prescribed period may be "sufficient cause" within the meaning of this Section ", The following are some examples of what is and what is not "Sufficient Cause": 1. Illness: Illness: Illness Illness is considered as 'sufficient cause' to get benefit of Section 5, but mere plea of illness is not sufficient cause for not filing proceeding in time u nless it is shown that the appellant or applicant was utterly disabled to attend to any duty duty..

S U K M A K 2. Imprisonment: Imprisonment: A A person can be given the benefit of Section 5 if he is undergoing imprisonment due to some criminal act. The time spent by him in the jail may be deducted from the prescribed period of time.

3. Mistaken Legal Advice: Advice: A A mistaken advice given by a legal practitioner may in circumstances of particular case give rise to 'Sufficient Cause' within the meaning of Section 5. In State of WB. v. The Administrator,, Howrah Municipality Administrator Municipality,, AIR 1972 SC 749, it was held that if a party had acted in a particular manner on a wrong advice given by his legal advisor, he cannot be held guilty for negligence so as to disentitle the party to plead sufficient cause under Section 5 provided that no negligence, nor inaction nor want of bonafides is imputable to a party. party. 4. Illiteracy: Illiteracy : The fact that appellant was illiterate is not sufficient reason to condone the delay. 5. Delay in obtaining copies: When copies: When a delay is caused:

1) in obtaining a copy of the order or decree of a court and such delay was caused by the officer the officer of the court. 2) by the court itself in issuing orders.

3) due to the method wrongly adopted in procuring the copy of the decree or order of the court.

Such delay shall shall be deemed as sufficient cause for granting benefit of Section 5 of this Act.

The power given given to the courts under Section 5 above is discretionary yet it has to be exercise exercised d in a judicial manner keeping keeping in view the special circumstances of each case.

In Collector, Land Acquisition v. Mst. Katiji, AIR 1987 S. C. 1353 , their Lordships of the Supreme Court laid down the following guiding principles: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must must be explained" does not mean mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational commonsense pragmatic manner.

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4.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, deliberately, or on account of culpable negligence; or on account of mala fides. A litigant does not stand to benefit by resorting to delay. 6.

It must be grasped that judiciary is-respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and it is expected to do so.

S U K M A K It was pointed out that the Courts should adopt liberal approach in the matter of condonation of delay keeping in view the above principles. LEGAL DISABILITY

Generally limitation begins to run from the date of cause of action. But the Indian Limitation Act itself provides certain certain exceptions to this general principle. Thus, in a case where the aggrieved party party is suffering with some legal legal disability, disability, the period of limitation does not run from the date of the accrual of the cause of action but runs runs from a subsequent date, on which the disability ceases. In this connection Sections Sections 6, 7 and 8 of Indian Limitation Limitation Act Act are the counterpart of each other and they unitedly form one unit. u nit. The general The general rule regarding disability disability is provided by Section 6 which reads as under: 1. Where a person entitled to institute a suit or make an application for the execution of decree decree is at the time from which from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, ceased, as would otherwise have otherwise have been allowed from the time specified there for in the third column of the schedule. schedule.

2. Where such person is, at the time from which the prescribed period is to be reckoned, aff ected by two such disabilities, disabilities, or where, before his disability has ceased, he is affected by another disability, disability, he may institute the the suit or make application within the same period after both disabilities have ceased ceased as would otherwise have otherwise have been allowed from the time so specified. 3. Where the disability continues up to the death of that person his legal representative may institute may institute the suit or make make the application within the same period after the death, as would otherwise otherwise have been allowed fr om om the time so specified.

4. Where the legal legal representati representative ve referred referred to in sub- section section (3) is at the death death of person to whom whom he represents, affected by any of such disabilities the rules contained in sub-sections (1) and (2) shall apply.

5. Where a person person under disability disability,, dies after the disabilit disability y ceases but within within the period period allowed to him under this Section, his legal repres19ntative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died. Explanation: for Explanation: for the purposes of this Section 'minor' includes a child in the womb.” So Section 6 does not prevent running of limitation but only extends the period of limitation 'on the ground of of disability of person entitled to sue or apply. Section 6 excuses an insane person, minor and an idiot to file a

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suit or make an application for the execution of a decree within the time prescribed by law and enab les him to file the suit or make an application after the disability h as ceased, counting the period of time from the date on which the disability ceased. If one disability supervenes on another disability or one disability is followed by another without leaving a gap the suit or application for execution may be filed after both disabilities have ceased to exist. If the disability or disabilities continue till the person's death then the legal representative of the deceased on whom the title devolves is allowed to file a suit or make an application for execution within the time allowed by law counting it from the death of the person entitled. The mere fact that there is a guardian for the person under disability does not deprive such person of the indulgence granted by Section 6.

S U K M A K In Akhtar Hussain v. v. Qudrat Ali AIR 1923 Oudh. 31 it was observed that Section 6 of Limitation Act has no application in case of appeals. Legal disability is ,inability to sue owing to minority, lunacy or idiocy. The effect of legal disability is that it extends the period of limitation but it does not prevent the period from running. Sometimes a situation arises when one of the several persons jointly entitled to institute a suit or to execute a decree is under under disability. disability. In this connection Section 7 o f Act says that if one of the several persons persons jointly entitled to institute institute a suit or make an application for the execution of a decree, is under any such such disability and a discharge discharge can be given without the concurrence of such person, the time will run against against all of them. However, if such such discharge cannot be given, time will not run as against any of them until one of them becomes capable capable of giving such discharge without the concurrence of the other or until the disability has ceased. So Section 7 of Limitation Act would apply when the right to sue is joint irrespective of whether the substantive r ight ight is joint or not. Section 8 of Indian I ndian Limitation Act makes it clear that Rules contained in Sections 6 and 7 are subject subject to the following conditions: conditions:

1. They cannot be applied to the suits to enforce rights of pre-emption. 2. They cannot be applied to any of the cases in which extension of period of imitation f or more than three years three years from the cesation of disability or the death of a person as the case may be, is is sought for.

CONTINUOUS CONTINUO US RUNNING OF TIME (SECTION 9)

It is a fundamental principle of law of limitation that "Once the time has commenced to run it will not cease to do so by reason of any subsequent event." In other words, the time runs continuously and without any break or: interruption until the entire prescribed period has run out and no disability or inability to sue occurring subsequently can stop it. This rule has been embodied in Section 9 of the Act in the following words: "Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it."

Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of a limitation for a suit to recover the debt shall be suspended while ad ministration continues." This Section applies not only to suits but to applications as well. This has not been expressly provided in the

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Section. If at the date on which the cause of action arose the plaintiff was under no disability disability,, or inability, then time will naturally begin to run against him because there is no reason why the ordinary law should not have full operation. Section 9 says that once time has begun to run, no subsequent disability or inability to sue can stop its running. This applies to a person himself as well as to his representatives-in-interest after his death. The Section contemplates a case of subsequent and not of initial disability, disability, that is, it contemplates those cases where the disability occurred after the accrual of the cause of action; whereas cases of initial disability have been provided for by Section 6.

S U K M A K Disability or inability to sue: sue : Disability has been defined as the want of legal qualification to act and inability of the physical person to act. Thus according to Calcutta High Court in Pooran Chandra v. Sasson, AIR 1919 Cal. 1018, disability is the state of being minor, insane or idiot, whereas illness, poverty etc. are instances of inability inability.. In Union of India India v. Tata Tata Engineering and Locomotive Co. Ltd. AIR 1989 Pat. 272 it was obser ved "true it is that in terms of Section 9 when time has begun to run, no subsequent disability or inability to institute institute a suit or make an application application stops it but Section 9 does not provide for a computation of period of limitation." limitation." Exceptions: The principle of Section 9 is strictly applied and no exceptions other than those which the Act Exceptions: The itself prescribes prescribes can be recognised. Thus the running of time is suspended in following eight casescases-

1. The proviso to Section 9 contains exception to the general rule that once time begins begins to run, no subsequent subsequ ent disability or inability to sue can stop it. The proviso lays down that when administration administration of an estate has has been given to a debtor of the deceased, no time will run against such a debtor de btor until the administr ation ation of estate which has been entrusted to him has been finished. In such cases, cases, the law prevents the duty of properly administering the estate to come into conflict with the right of the person to sue for the the debt, the hand to give and the hand to receive is the same.

2. The time spent in obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall reviewed shall be excluded while computing the period of limitation prescribed for an appeal or an application applicatio n for leave to application and an application for review of judgment. In the same way the time spent in obtaining obtaining the copy of the award shall be excluded, while computing the period of limitation limitation to file an application application to set aside an award (Section 12).

3. The time taken taken for prosecuti prosecuting ng an application application for leave leave is to be excluded excluded if leave is necessar necessary y while computing the period of limitation for a suit or appeal (Section 13).

4. When the plaintif plaintifff has been prosecuting prosecuting with with due diligence diligence another same same proceedings proceedings the time spent spent in it shall be excluded while computing the period of limitation (Section 14).

5. When an injunction injunction order order has been obtained obtained to stay the institut institution ion of suit, the the time Gpent in obtaining obtaining injunction or order shall be excluded while computing the period of limitation (Section 15(1). 6. When notice notice is served served before the institut institution ion of a suit, the limitatio limitation n shall be suspended suspended during during the period of notice (Section 15(1).

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7. The period of limitati limitation on shall be suspended suspended during the the time for which the the proceedings proceedings to set aside the the sale have been prosecuted in a suit for possession by purchaser at an execution sale (Section 15(4). 8. If the defendant defendant is absent absent from India India or in the territories territories beyond India, India, under the the administrati administration on of the Central Government, the time up to which he has b een absent shall be excluded while computing the period of limitation (Section 15(5)). COMPUTATION COMPUTA TION OF PERIOD OF LIMITATION LIMITATION AND EXCLUSION OF TIME IN ROCEEDING ROCEEDI NG

S U K M A K Section 3 of Indian Limitation Act gives the general rule of limitation by providing "Subject to the provisions contained in Sections 4 to 24, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence." So the rule that suit, appeal or application filed after the period of limitation, shall be dismissed is subject o provisions contained in Sections 4 to 24 of the Act. Sections 12 to 15 of Limitation Act provide for it, excluding certain periods while computing the period of limitation prescribed. Section 12 of Act Act says that in computing the period of limitation of any suit, appeal or applicationapplicationa.

the day from which period is to be reckoned.

b.

the day on which judgment complained of was pronounced.

c.

time requisite for obtaining a copy of decree, sentence or order appealed from or sought to be revised revis ed or reviewed.

d.

time requisite for obtaining the copy of judgment on which decree or order is founded.

e.

time requisite for obtaining a copy of award shall be excluded.

In Parthasarthy Parthasarthy v. State of A.P. A.P. AIR 1966 SC 38, it was observed that in computing or calculating calculating the period of limitation fr om om a particular point, Section 12 enables the exclusion of a time from that periodcaused period caused by an event that intervened intervened between the commencement and termination of said period. Section 13 of of the Act lays down that the time during which the applicant has applied for leave lea ve to sue as 'pauper' shall shall be excluded. According to this Section, application must have been made for permission permission to sue as pauper pauper in a suit and same is rejected. Such time which the applicant has spent in g ood faith for obtaining per mission, mission, shall be excluded in computing prescribed period upon payment of court fees. court fees.

Section 14 of the Act then provides: provides: In computing the period of limitation prescribed for suit or application, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, should be excluded. The proceeding in such a case should have been founded upon the same cause of action and is prosecuted in good faith in court which from defect of jurisdiction or o ther cause of like nature, is to entertain it. In Madhav Rao Narayan Rao Patwardhan Pat wardhan V. V. R. K. Govind Bhanu AIR 1958 SC 767 It was observed that "the essential requisites for application of Section 14 of the Act are that the party seeking the benefit of Section 14 had to affirmatively show

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i.

tha hatt he ha had d be been en pr pros osec ecut utin ing g th the e pr prev evio ious us su suit it wi witth di dili lige genc nce e

ii.. ii

that th at th the e mat matte terr in in is issu sue e in in the the pr prev evio ious us su suit it an and d ne new w su suit it ar are e the the sa same me

iii. ii i.

tha hatt the the pr prev evio ious us su suit it wa was s pro pros sec ecut uted ed in go good od fai aith th,, and and

iv.. iv

that th at th the e cou court rt wa was s una unabl ble e to to ent enter erta tain in th that at su suit it on ac acco coun untt of of def defec ectt of of jurisdiction or other cause of a like nature.

Then Section 15 of the Act provides-

S U K M A K 1. In computing the period of limitation for application for the execution of a decree, the execution of which which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn is to be excluded. 2. In computing the period of limitation for any suit of which notice has been given or for which the consent or sanction of the government or any other authority is required in accordance with the requirements of any law f or or the time being in force of such notice or as the case may be, the time for obtaining ob taining such consent or or sanction is to be excluded. 3. In com ompu putting the period of limitation for any suit or application for execution of a decree by any by any receiver or 'interim receiver' 'interim receiver' appointed in proceedings for the adjudication of a person as or an insolvent insolvent or by any liquidator liquidator or provisional liquidator appointed in proceedings for the winding up of a company, company, the period beginning beginning with the date of institution of such proceedings and ending with the date of date of institution of such proceedings proceedings and ending with the expiry of three months from the date of appointment appointment of such receiver or or liquidator, as the case may be, is to be excluded. 4. In co computing the period of limitation for a suit for possession by a purchaser 'at a sale in execution execution of a decree' the the time during which a proceeding to set aside the sale has been prosecuted is to be be excluded.

5. In com ompu putting the period of limitation for any suit the time during which the defendant has absented absented from India and from and from the territories outside India under the administration of the Central Government Government is to be excluded (Section excluded (Section 15). EFFECT OF "DEATH", "FRAUD", "MISTAKE" OR " ACKNOWLEDGEMENT IN WRITING"

Section 16 of Indian Limitation Act provides regarding the effect of death, in computing the the limitation period. Section 16 says:

1. Where a person person who would, would, if he were living, living, have right right to institute institute a suit or right right to make applicati application, on, dies before such right accrues or where right to institute suit or make application assures only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of deceased capable of instituting such suit or making such application.

2. Where a person person against whom, whom, if he were living, a right to institut institute e suit or make applicatio application n would have accrued, dies before such right accrues or where right to institute a suit or make application against any person-accrues only on death of such person, the period of limitation shall be computed from the time when there is legal representative of deceased against whom plaintiff may institute such suit or make such application."

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Section 17 17 of Indian Limitation Act deals with the effect of 'fraud' or 'mistake' on period of limitation prescribed by the Act. According to Section 17: The 17: The limitation shall be computed from the time when the fraud became known to the person defrauded. Therefore, if any person by the exercise of fraud has kept away other persons from the knowledge that he has a right to file a suit, limitation will be computed from the time when such fraud became known to the person so defrauded.

S U K M A K Where any document necessary to establish such rig ht has been fraudulently concealed from him or where the suit or application is for the relief from the consequence of a mistake, limitation shall be computed from the time when he first has the means of producing the document or compelling its production and in latter case when the plaintiff or the applicant has discovered the mistake or could have discovered it. It should be from the date of the discovery of the document. The following are the essential conditions for getting the advantage of the above Section: 1)

The cause of action of plaintiff has been concealed from him by fraud.

2) 3)

The fraud has been done by the defendant or a person through him o r who claims under him. The plaint is in time since the discovery of the fraud.

Exceptions: The Exceptions: The following, however, are exceptions to the rule laid down above:

"Nothing in this this Section shall enable any suit to be instituted, application to be made to recover recover or enforce and charge against against or set aside any transaction affecting any property, which,

1. In the case of fraud, it has been purchased for valuable consideration by a person who was not was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud fraud had been committed, committe d, or 2. in the case of mistake, it has been purchased for valuable consideration subsequently to the the transaction in which the mistake was made by a person who did not know, or have reason to believe, believe, that the mistake had had been made, or 3. In the case of a concealed document, it has been purchased for valuable consideration by a person who was not a party a party to the concealment and, did not at the time of purchase know or have reason reason to believe that document has been concealed."

The main object of this Section to keep the right of a person to sue suspended so long as he is not made aware of the fraud to be committed against him. Such a period is excluded from the prescribed period o f limitation. It is based on the principle that a person should not be deprived of his leg al right to sue simply because the period of limitation expired and he could not have knowledge of fraud done with him or likely to be done with him.

According to Section 17(1) where the execution of a decree or order within the period of limitation has been prevented by fraud or force of the judgment debtor, the court may on the application of judgment creditor made after the expiry of period of limitation, extend the period for the execution of decree or order. But such an application must be made by the judgment creditor within one year from the date of discovery of fraud or the cession of force as the case may be.

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Valid Va lid Acknowled Acknowledgement gement under Section 18: 18: Section Section 18 of Indian Limitation Act Act lays down: 1. Where before before the expiratio expiration n of the prescribed prescribed period period for a suit or applicat application ion in respect respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.

S U K M A K 2. Where the the writing containi containing ng the acknowledg acknowledgement ement is undated undated oral evidence evidence may may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received."

Explanation (a) added (a) added to Section 18 says "an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay , deliver, perform or permit to enjoy, or is coupled with a with a claim to set off, or is addressed to a person other than a person entitled, to the the property or right." So where prescribed prescribed period for suit or application in respect of some property or right has begun begun to run but has not expir ed, ed, an acknowledgement in writing of such right has been made, a fresh period period of of limitation should be computed computed from the time when the acknowledgement was so signed.

In Hindusta Hindustan n Apparel Industries v. Fair Deal Corp. New Delhi AIR 2000 Guj 261 it was held held that "the payment of cheque cheque which is dishonoured would amount to acknowledgement of debt and liability ability and by necessary consequence consequence there will be saving of Imitation as envisaged by Section 18 of Limitation Limitation Act. Ac t. A cheque would would prima facie amount to an admission of debt unless contrary intention has been expressed expressed by the person issuing issuing the cheque." The principle on principle on which Section 18 is based is that the bar of limitation should not be allo wed wedto to operate in cases in which which the existence of a claim is acknowledged by persons who are under the liability.

In Tilak Ram v. Ram v. Nathu AIR 1967 SC 935 it was it was pointed out that the Section requires (i) an admission or acknowledgement acknowledge ment (ii) such acknowledgement must be of a liability in respect of property or right right (iii) it must be made bef ore ore the expiry of period of limitation (iv) it should be in writing and signed by the party against whom such property or right is claimed. ACQUISITION OF OWNERSHIP BY POSSESSION

The general rule of law la w of limi1ation is that, it only b ars the remedy- and does not extinguish the right itself. In other words law of limitation lays down the rule that when a suit or appeal or application is filed after the prescribed period of limitation, then such suit or appeal or application shall be dismissed, such dismissal means the court will not grant remedy if asked for after the prescribed of limitation but law does not dispute the right of litigant.

Section 27 of Act is the exception to this general principle so far as suits for possession of property are concerned and lays down that after the expiry of period thus prescribed for instituting a suit for po ssession of any property, the person who should have instituted such suit but has failed to do so, shall cease to have

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any right to the property. After After the expiry of its period perio d the law declares simply that not only the remedy is barred but that title is extinct in favour of the possessor. In Banarsi Das v. Jiwan Ram, AIR 1995 P & H 85 it was observed" A bare perusal of Section 27 of Indian Limitation Act would show that after expiry of the period of limitation prescribed for filing suit for possession under the Limitation Act, even the right to sue for possession is extinguished." Article 64 of Schedule of Limitation Act says that period of limitation for suit for possession of immovable 64 of property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed is "twelve years" and such period begins to run from the date of such dispossession of plaintiff. Article Article 65 says that period of limitation for filing suit for possession of immovable property or any interest therein based on title is "twelve years" and period of limitation begins to run when the possession of defendant becomes adverse to the plaintiff. So in all suits for possession based on dispossession whether plaintiff had title or not, the burden of proof is on the plaintiff to prove that he was in possession and was dispossessed within 12 years of filing suit and in suit for possession based on title, burden of proof is on defendant to prove that his possession over suit property becomes adverse to plaintiff for beyond 12 12 years of the suit, upon the proof of defendant being in adverse possession for for property for period of beyond beyond 12 years (a period which Article 65 prescribes within which plaintiff can can file suit for possession on on the basis of title), plaintiffs right to property will extinguish 0 possessor.

S U K M A K The concept concept of adverse possession contemplates a hostile possession i.e., a possession possession which is expressly or impliedly impliedly in denial of the title of the true owner. Possession to be adverse must bea be a possession by a person who who does not acknowledge the other's rights but denies them.

The full period period prescribed for a suit for possession must have expired, otherwise the title of thetrue the true owner is not extinguished extinguished in favour of wrongdoer. An owner does not lose his right to it merely becaus because e it happens not to be in possession possession of it for twelve years but his right is extinguished only when somebody somebody else is in adverse possession possession of property of lawful owner and a nd no suit for possession has been filed within within prescribed period of limitation. limitation. Institution of the suit for possession is sufficient to bar the operation of Section 27 of Limitation Act. Act.

IMPORTANT QUESTIONS IMPORTANT QUESTIONS Q.1.

Wher e once time has begun to run, no subsequent disability or inability t9 sue stops it". Explain it". Explain with illustrations and exceptions.

Q.2.

What is the effect effect of fraud or mistake on the computation of the period of limitation?

Q.3.

Give illustrations illustrations to explain what is and what is not "sufficient "sufficient cause" for the purpose of the extension of the period of limitation.

Q.4.

What is the the effect effect of acknowl acknowledgeme edgement nt of liabil liability ity on on the peri09 of limitat limitation? ion? Discus Discuss. s.

Q.5.

Limitation bars the remedy but does not extinguishes the right. Explain?

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