Code of Civil Procedure 1908 Notes
Q. Explain Decree, Order, and Judgment and distinguish between them. What are the essential elements of a decree? What are the kinds of decree? What are the conseuences of non appearance of parties? What is an ex parte decree? Discuss the remedies a!ailable to a defendant against whom an ex parte decree has been passed. "ll uestions regarding execution of a decree shall be determined b# the court executing the decree and not b# a separate suit. Explain. Decree
In a civil suit several facts might be alleged and the court may be required to rule on several claims. In simple terms, a decree is the ruling of the court regarding the claims of the parties of the suit. For example, in a suit between A and B, A may claim that a particular property P belongs A. After hearing all the arguments, the court will rule in the favor of either A or B. he final decision of the court regarding this claim i.e. whether the property belongs to A or B, is a decree. As per $ection %&%', a decree is the formal expression of an ad!udication which, so far as regards the "ourt expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It can be final or preliminary. From the above definition we can see the following essential elements of a decree # (. )here must be ad*udication + Ad!udication means $udicial %etermination of the matter in dispute. In other words, the court must have applied its mind on the facts of the case to resolve the matter in dispute. For example, dismissing a suite because of default in appearance of the plaintiff is not a decree. But dismissing a suite on merits of the case would be a decree. %. )here must be a suit + %ecree can only be given in relation to a suit. Although "P" does not define what suit means, in ansra* !s Dehradun -ussoorie )ramwa#s )ramwa#s o. /td. "01 (233 , the Privy "ouncil defined the term suit as &a civil proceeding instituted by the presentation of a plaint&. 3. 1ights of the parties + he ad!udication must be about any or all of the matters in controversy in the suit. he word right means substantive rights and not merely procedural rights. For example, an order refusing leave to sue in forma pauperis 'i.e. an order re!ecting the application of a poor plaintiff to waive court costs( is not a decree because it does not determine the right of the party in regards to the matters alleged in the suit. 4. onclusi!e Determination + he determination of the right must be conclusive. his
means that the court will not entertain any argument to change the decision. I.e. as far as the court is concerned, the matter in issue stands resolved. For example, an order stri)ing out defence of a tenant under a relevant *ent Act, or an order refusing an ad!ournment is not a decree as they do not determine the right of a party conclusively. +n the other hand, out of several properties in issue in a suit, the court may ma)e a conclusive determination about the ownership of a particular property. uch a conclusive determination would be a decree even though it does not dispose off the suit completely. 5. 6ormal expression + o be a decree, the court must formally express its decision in the manner provided by law. A mere comment of the !udge cannot be a decree. Examples of decisions which are Decrees + %ismissal of appeal as time barred, %ismissal or a suit or appeal for want of evidence or proof, +rder holding appeal to be not maintainable. Examples of decisions which are not Decrees + %ismissal of appeal for default, order of remand, order granting interim relief. Order
As per ection ection - '/(, the formal expression expression of any decision decision of a civil court which which is not not a %ecree is +rder. +rder. In a suit, a court may ta)e certain decisions on ob!ective considerations and those decisions must contain a discussion of the matters at issue in the suit and the reasons which led the court to pass the order. 0owever, if those decisions fall short of a decree, they are orders. hus, there are several common common elements between an order and a decree # both related to matter in controversy, both are decisions given by the court, both are ad!udications, both are formal expressions. 0owever, there are substantial differences between them # Decree - S. 2(2)
Order S. 2(14)
Can only be passed in a suit originated by the presentation of a plaint.
Can be passed in a suit originated by the presentation of a plaint, application, or petition.
Cont Contai ains ns Concl Conclus usiv ivee Dete Determ rmin inat atio ion n of a rig right ht
May or may may not not final finally ly deter determi mine ne a righ right. t.
May be final, preliminary p reliminary,, or partly preliminary partly final.
Cannot be a preliminary order.
In general, there can only be one decree or at the most one preliminary and one final decree in a suit.
There can be any number of orders in a suit.
Every decree is appealable unless an appeal is expressly barred.
nly those orders !hich are specified as appealable in the code are appealable.
" second appeal may lie against a decree to a #igh There is no second appeal for orders. Court on certain grounds.
Judgment
As per $ection % &2', &!udgment& means the statement given by the !udge of the grounds of a decree or order. 1very !udgment should contain # a concise statement of the case, the points for determination, the decision thereon, the reasons for the decision. In the case of 7alra* )ane*a !s $unil -adan, "01 (222 , " held that a $udge cannot merely say &uit decreed& or &uit dismissed&. he whole process of reasoning has to be set out for deciding the case one way or the other. As per *ule 2 A of +rder -3 the last part of the !udgment should precisely state tge relief granted. hus, a !udgment is a state prior to the passing of a decree or an order. After pronouncement of a !udgment, a decree shall follow.
Kinds of Decree Preliin!r" - $here an ad%udication decides the rights of the parties !ith regard to all or any of the matters in controversy in the suit but does no t completely dispose of the suit, it is a preliminary decree. It is passed !hen the court needs to ad%udicate upon some matters before proceeding to ad%udicate upon the rest.
In S#!n$!r vs C#!ndr!$!nt SCC 199% , &C stated that a preliminary decree is one !hich declares the rights and liabilities of the parties leaving the actual result to be !or'ed out in further proceedings. C(C provides for passing preliminary decrees in several suits such as - suit for possession and mesne profits, administration suit, suits for pre-emption, dissolution of partnership, suits relating to mortgage. In N!r!"!n!n vs &!'i N!r!"!n * 19%+ , it !as held that the list given in C(C is not exhaustive and a court may pass a preliminary decree in cases not expressly provided for in the code. ,in!l - $hen the decree disposes of the suit completely, so far as the court passing it is concerned, it is a final decree. " final decree settles all the issues and controversies in the suit. P!rt" reliin!r" !nd !rtl" fin!l - $hen a decree resolves some issues but leaves the rest open for further decision, such a decree is partly final and party preliminary. )or example, in a suit for possession of immovable property !ith mesne profits, !here the court decrees possession of the property and directs an en*uiry into the mesne profits, the former part of the decree is final but the latter part is preliminary. Deeed Decree - The !ord +deemed+ usually implies a fiction !hereb y a thing is assumed to be something that it is ordinarily not. In this case, an ad%udication that does not fulfill the re*uisites
of &. cannot be said to be a decree. #o!ever, certain orders and determinations are deemed to be decrees under the code. )or example, re%ection of a plaint and the determination of *uestions under &. /00 1estitution are deemed decrees.
Conseuences of Non !e!r!nce of !rties (Order 9) The general provisions of C(C are based on the principle that both the parties must be given an opportunity to be heard. The proceedings must not be held to the disadvantage of one party. rder 2 lays do!n rules regarding the appearance and the conse*uences of non appearance of a party in the hearing. *ule 1 - (arties to appear on day fixed in summons for defendant to appear and ans!er3 n the day fixed in the summons for the defendant to appear and ans!er, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is ad%ourned to a future day fixed by the Court. Disiss!l of Suit *ule 2 - Dismissal of suit !here summons not served in conse*uence of p laintiffs failure to pay cost3 $here on the day so fixed it is found that the summons has not been served upon the defendant in conse*uence 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 statements, as re*uired by rule 2 of order 4II, the Court may ma'e an order that the suit be dismissed 5 (rovided that no such order shall be made, if, not!ithstanding such failure the defendant attends in person or by agent !hen he is allo!ed to appear by agent on the day fixed for him to appear and ans!er. *ule + - $here neither party appears, suit to be dismissed3 $here neither party appears !hen the suit is called on for hearing, the Court may ma'e an order that the suit be dismissed. *ule 4 - (laintiff may bring fresh suit or Court may restore suit to file3 $here a suit is dismissed under rule or rule 6, the plaintiff may sub%ect to the la! of limitation bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there !as sufficient cause for such failure as is referred to in rule , or for his non-appearance, as the case may be, the Court shall ma'e an order setting aside the dismissal and shall appo int a day for proceeding !ith the suit. *ule % - Dismissal of suit !here plaintiff after summons returned unserved, fails for one month to apply for fresh summons3 / $here after a summons has been issued to the defendant, or to one of several defendants, and returned unserved the plaintiff fails, for a periods of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall ma'e an order that the suit be dismissed as against such defendant, unless the plaintiff has !ithin the said period satisfied the Court that3 a he has failed after using his best endeavours to discover the residence of the defendant,
!ho has not been served, or b such defendant is avoiding service of process, or c there is any other sufficient cause for extending the time, in !hich case the Court may extend the time for ma'ing such application for such period as it thin's fit. In such case the plaintiff may sub%ect to the la! of limitation bring a fresh suit. /' !rte Proceedins *ule - (rocedure !hen only plaintiff appears3 / $here the plaintiff appears and the defendant does not appear !hen the suit is called on for hearing, then3 a $hen summons duly served3if it is proved that the summons !as duly served, the Court may ma'e an order that the suit shall be heard ex parte. b $hen summons not duly served3if it is not proved that the summons !as duly serve, the Court shall direct a second summons to be issued and served on the defendant7 c $hen summons served but not in due time3if it is proved that the summons !as served on the defendant, but not in sufficient time to enable him to appear and ans!er on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. $here it is o!ing to the plaintiffs8 default that the summons !as not duly served or !as not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement. *ule - (rocedure !here defendant appears on day of ad%ourned hearing and assigns good cause for previous non-appearance3 $here the Court has ad%ourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or other!ise, be heard in ans!er to the suit as if he had appeared on the day, fixed for his appearance. 3sence of Pl!intiff *ule 8 - (rocedure !here defendant only appears3 $here the defendant appears and the plaintiff does not appear !hen the suit is called on for hearing, the Court shall ma'e an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in !hich case the Court shall pass a decree against the defend ant upon such admission, and, !here part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. *ule 9 - Decree against plaintiff by default bars fresh suit3 / $here a suit is !holly or partly dismissed under rule 9, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cau se of action. :ut he may apply for an order to set the dismissal aside, and if he satisfies the Court that there !as sufficient cause for his nonappearance !hen the suit !as called on for hearing, the Court shall ma'e an order setting aside the dismissal upon such terms as to costs or other!ise as it thin's fit. and shall appoint a day for proceeding !ith suit. ;o order shall be made under this rule unless notice of the application has been served on the opposite party.
ultile l!intiffs !nd5or Defend!nts *ule 10 - (rocedure in case of non-attendance of one or more of several plaintiffs3 $here there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same !ay as if all the plaintiffs had appeared, or ma'e such order as it thin's fit. *ule 11 - (rocedure in case of non-attendance of one or more of several defendants3 $here there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing %udgment, ma'e such order as it thin's fit !ith respect to the defendan ts !ho do not appear. 6ener!l Conseuence of Non !e!r!nce *ule 12 - Conse*uence of non-attendance, !ithout sufficient cause sho!n, of party ordered to appear in person3 $here a plaintiff or defendant, !ho has be en ordered to appear in person, does not appear in person, or sho! sufficient cause to the satisfaction of the Court for failing so to appear, he shall be sub%ect to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively !ho do no appear.
This means either the suit !ill be dismissed or !ill be continued ex parte. /' !rte Decree (Order 9)
"s per 1ule <, if the defendant fails to appear before the court in spite of a proper service of the summons, the court may proceed ex-parte and may pass a decree in favor of the plaintiff. This is called an ex-parte decree. In the case of 7oc#est Co!n" vs S C#eic!l Co!n" , &C explained that an ex parte decree is such decree in !hich defendant did not appear before court and the case is heard in the absence of the defendant from the very beginning. *eedies !v!il!3le to t#e defend!nt !!inst !n e' !rte decree 1. lic!tion to set !side t#e e' !rte decree - s per rder 2, 1ule /6, a defendant may apply before the court that passed the decree to set it aside. If he satisfies the court that the summons !as not duly served or he !as prevented by any other sufficient cause from attending the hearding, the court shall ma'e an order setting aside the decree. )or example, bona fide mista'e as to the date or hearing, late arrival of train, etc. are sufficient causes for absence of the defendant. &uch an application for setting aside may be made !ithin 6= days from the date of decree as per &ection /6 of >imitation "ct.
&etting aside decrees ex parte *ule 1+ - &etting aside decree :Iex parte against defendant3 In any case in !hich a decree is passed ex parte against a defendant, he may apply to the Court by !hich the decree !as passed for an order to set it aside7 and if he satisfies the Court that the summons !as not duly served, or
that he !as prevented by any sufficient cause from appearing !hen the suit !as called on for hearing, the Court shall ma'e an order setting aside the decree as against him u pon such terms as to costs, payment into Court or other!ise as it thin's fit, and shall appoint a day for proceeding !ith the suit7 (rovided that !here the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also5 (rovided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and ans!er the plaintiff8s claim Explanation.3$here there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has !ithdra!n the appeal, no application shall lie under this rule for setting aside that ex parte decree. *ule 14 - ;o decree to be set aside !ithout notice to opposite party3 ;o decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.
The court may impose conditions as it may deem fit on the defendant for setting asided the decree. It may as' the defendant to pay costs. $hen an ex parte decree is set aside, the court should proceed to decide the suit as it stood before the decree. The trial should commence de novo and the evidence that had been recorded in the ex parte proceeding should not be ta'en into account. This remedy is specifically meant for an ex parte decree. 2. Prefer !n !e!l !!inst t#e decree under Section 9(2). +. l" for revie under Order 4 *ule 1. 4. ,ile ! suit on t#e round of fr!ud.
"ll the above remedies are concurrent and can be pursued concurrently.
/'ecution of ! Decree
"s per Section +8, a decree may be executed either by the court !hich passed it or the court to !hich it is sent for execution. $hile executing a decr ee, several *uestions and ob%ections may arise as to the manner of execution. It !ould be impractical to institute ne! suits to resolves such matters. Thus, Section 4 lays do!n the general principal that any *uestions that arise in relation to the execution of the decree should be resolved in execution proceeding itself and not by a separate suit. Section 4 says thus -
4. :uestions to 3e deterined 3" t#e Court e'ecutin decree / "ll *uestions arising bet!een the parties to the suit in !hich the decree !as passed, or 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. 6 $here a *uestion arises as to !hether any person is or is not the representative of a party, such *uestion shall, for the purposes of this section, be determined by the Court. Explanation I.)or the purposes of this section, a pla intiff !hose suit has been dismissed and a defendant against !hom a suit has been dismissed are parties to the suit. Explanation II. a )or the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in !hich the decree is passed7 and b all *uestions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be *uestions relating to the execution, discharge or satisfaction of the decree !ithin the meaning of this section.
The ob%ective of this section is to provide cheap and fast remedy for the resolution of any *uestions arising at the time of execution. Institution of ne! suits !ould on ly increase the number of suits and !ould also be a burden on the parties. The scope of this section is very !ide. It confers exclusive %urisdiction to the court executing the decree in all the matters regarding the execution. It does not matter !hether the matter ha s arisen before or after the execution of the decree. Thus, this section should be construed liberally.
Conditions /. The *uestion must be one arising bet!een the parties or their representatives to the suit in !hich the decree is passed. . The *uestion must relate to the execution, discharge, or satisfaction of the decree.
"s held in the case of ro$i!s!" vs !r!ret * 1982 , both the conditions must be satisfied cumulatively. ;#!t is e!nt 3" e'ecution< disc#!re !nd s!tisf!ction of ! decree This expression has not been defined in the code. #o!ever, the follo!ing *uestions are held to be relating to the execution, discharge and satisfaction of the decree !hether a decree is executable, !hether a property is liable to be sold in execution of a decree, !hether the decree is fully satisfied, !hether the execu tion of the decree !as postponed.
The follo!ing *uestions have been held as not related - !hether the decree is fraudulent or collusive, !hether the decree has become in executable because of a compromise bet!een the parties, a *uestion about the territorial or pecuniary %urisdiction of the court passing the decree. e!l !nd *evision Earlier, determination made under &ection 0? !as deemed to be a decree under &ection . #o!ever, after the amendment in /2?<, this is not so. "ny determination made under an application under &ection 0? is not considered a decree and is therefore not appealable under &ection 2< or &ection /==. &ince it is no more a decree, a revision application under &ection //@
is therefore maintainable provided the conditions stipulated in &ection //@ are satisfied. :. ;#!t !re t#e o3=ects !nd essenti!l conditions of t#e doctrine of res =udic!t!> llustr!te t#e rincile of constructive res =udic!t!. C!n !n e' !rte decree !ct !s constructive res =udic!t!>
1es iudicata is the >atin term for +a matter alread y %udged+, and refers to the legal doctrine meant to bar continued litigation of cases that have already been decided bet!een the same parties. The doctrine of res %udicata is based on three maxims a ;emo debet lis vaxari pro eadem causa no man should be vexed t!ice for the same cause b Interest republicae ut sit finis litium it is in the interest of the state that there should be an end to a litigation7 and c 1e %udicata pro veritate occipitur a %udicial decision must be accepted as correct The legal concept of 1A arose as a method of preventing in%ustice to the parties of a case supposedly finished as !ell as to avoid unnece ssary !aste of resources in the court system. 1es iudicata does not merely prevent future %udgments from contradicting earlier ones, but also prevents litigants from multiplying %udgments, so a prevailing plaintiff could not recover damages from the defendant t!ice for the same in%ury. 1es Audicata is a rule of universal la! pervading every !ell regulated system of %urisprudence and is based upon a practical necessity that there should be an end to litigation and the hardship to the individual if he is vexed t!ice for the same cause. Thus, this doctrine is a fundamental concept based on public policy and private interest. It is conceived in the larger public interest, !hich re*uires that every litigation must come to an en d. It therefore, applies to all 'inds of suits such as civil suits, execution p roceedings, arbitration proceedings, taxation matters, !rit petitions, administrative orders, interim orders, an d criminal proceedings.
*es ?udic!t! under Code Of Civil Procedure< 1908 Section 11 of C(C embodies the doctrine of res %udicata or the rule of conclusiveness of a %udgement, as to the points decided either of fact, or of la!, or of fact and la!, in every subse*uent suit bet!een the same parties. It enacts that on ce a matter is finally decided by a competent court, no party can be permitted to reopen it in a subse*uent litigation. In the absence of such a rule there !ill be no end to litigation and the parties !ould be put to constant trouble, harassment and expenses.
&ection // says thus5 ;o Court shall try any suit or issue in !hich the matter directly and substantially in issue has been directly and substantially in issue in a former suit bet!een the same parties, or bet!een parties under !hom they or any of them claim, litigating under the same title, in a Court competent to try such subse*uent suit or the suit in !hich such issue has been subse*uen tly raised, and has been heard and finally decided by such Court.
Explanation I5 The expression +former suit+ shall denote a suit !hich has been decided prior to the suit in *uestion !hether or not it !as instituted prior thereto. Explanation II. )or the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appe al from the decision of such Court. Explanation III. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation I4. "ny matter !hich might and ought to have been made ground of defence or attac' in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation 4. "ny relief claimed in the plaint, !hich is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation 4I. $here persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation 4II. The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, *uestion arising in such proceeding and a former proceeding for the execution of that decree. Explanation 4III. "n issue heard and finally decided by a Court of limited %urisdiction, competent to decide such issue, shall operate as res %udicata in as subse*uent suit, not!ithstanding that such Court of limited %urisdiction !as not competent to try such subse*uent suit or the suit in !hich such issue has been subse*uently raised.
The doctrine has been explained by Austice Das Bupta as follo!s - The principle of 1es Audicata is based on the need of giving a finality to the %udicial decisions. $hat it says is that once a case is res %udicata, it shall not be ad%udged again. (rimarily it applies as bet!een past litigation and future litigation. $hen a matter- !hether on a *uestion of fact or a *uestion of la! has been decided bet!een t!o parties in one suit or proceeding and the decision is final, either because no appeal !as ta'en to a higher court or because the appeal !as dismissed, or no appeal lies, neither party !ill be allo!ed in a future suit or proceeding bet!een the same parties to canvas the matter again. /ssenti!l /leents for *es ?udic!t!
/. The matter in issue in a subse*uent suit must directly and substantially be same as in the previous suit. . The former suit must have been bet!een the same parties or bet!een parties under !hom the y or any of them claim.
6. &uch parties must hae been litigating under the same title in the former suit. 0. The court !hich decided the former suit must be a court competent to try the subse*uent suit or the suit in !hich such issue is subse*uently raised. @. The matter directly and substantially in issue in the subse*uent suit must have been heard and finally decided by the court in the former suit. 6ive llustr!tions
--The onus of proof lies on the party relying on the theory of res %udicata. /'cetions to !lic!tion 1es iudicata does not restrict the appeals process, !hich is considered a linear extension of the same la!suit as the suit travels up and bac' do!n the appellate court ladder. "ppeals are considered the appropriate manner by !hich to challenge a %udgment rather than trying to start a ne! trial. nce the appeals process is exhausted or !aived, res iudicata !ill apply even to a %udgment that is contrary to la!.
The provisions of section // of the Code are mandator y and the ordinary litigant !ho claims under one of the parties to the former suit can only avoid its provisions by ta'ing advantage of section 00 of the Indian Evidence "ct !hich defines !ith precision the grounds of such evidence as fraud or collusion. It is not for the court to treat negligence or gross negligence as fraud or collusion unless fraud or collusion is the proper inference from facts. In :eliram :rothers and thers v. Chaudari Mohammed "fal and thers it !as held that !here it is established that the minors suit !as not brought b y the guardian of the minors bona fide but !as brought in collusion !ith the d efendants and the suit !as a fictitious suit, a decree obtained therein is one obtained b y fraud and collusion !ithin the meaning of section 00 of the Indian Evidence "ct, and does not operate res %udicata. The principle of res %udicata in section // C(C is modified by section 00 of the Indian Evidence "ct, and the principles !ill not apply if any of the three grounds mentioned in &ection 00 exists.
,!ilure to !l" $hen a subse*uent court fails to apply res iudicata and renders a contradictory verdict on the same claim or issue, if a third court is faced !ith the same case, it !ill li'ely apply a +last in time+ rule, giving effect only to the later %udgment, even though the result came out differently the second time. Constructive *es ?udic!t! The rule of direct res %udicata is limited to a matter actuallu in issue alleged by one party and denied by other either expressly or impliedly. :ut constructive res %udicata means that if a plea could have been ta'en by a party in a proceeding bet!een him and his opponent, and if he fails to ta'e that plea, he cannot be allo!ed to relitigate the same matter again upon that plea. In affect, the partly impliedly gives up the right to that plea by not pleading it in the previous suit.
This principle is embodied in Explanation I4 of &ection //. Explanation I4. "ny matter !hich might and ought to have been made ground of defence or attac' in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 6ive llustr!tions -
In the case of Kes!r D!s *!=!n Sin# v. P!r! N!nd is#!n D!ss< * 19%9< a peculiar situation arose. In this case the plaintiff had filed a suit on the basis of a promissory note. #o!ever, the plaintiff himself left the country and in subse*uent proceedings since he !as unable to provide the promissory note to his advocate in the foreign country the suit got dismissed. The plaintiff later on filed another suit in the local courts. The defendant too' the p lea that the present suit !as barred by res %udicata. The Court held that the %udgment on the previous suit since it did not touch upon the merits of the case, therefore could not be held to be res %udicata for the present suit . /' !rte decree !s *es ?udic!t! "n ex parte decree, unless it is set aside, is a valid and enforceable decree. #o!ever, the real test for res %udicata is !hether the case !as decided on merits. The real test for deciding !hether the %udgment has been given on merits or not is to see !hether it !as merely formally passed as a matter of course, or by !ay of penalty for any conduct of the defendant, or is based upon a consideration of the truth or falsity of the plaintiff8s claim, not!ithstanding the fact that the evidence !as led by him in the absence of the defendant. Thus, a decree may not act as res %udicata merely because it !as passed ex parte.
It therefore acts a res %udicata. :. @/ver" suit s#!ll 3e instituted in court of loest r!de coetent to tr" it@< /'l!in. /'l!in t#e rovisions of CPC #ic# !re !lied in deterinin t#e foru for institution of ! suite rel!tin to iov!3le roert". St!te rinciles #ic# uide ! l!intiff in deterinin t#e l!ce of filin ! suit. /'l!in.
In India, courts are hierarchically established. The lo!er courts have less po!ers than the higher or superior courts. The &upreme Court of India is at the top of the hierarchy. There are numerous lo!er courts but only one #igh Court per &tate and only one &upreme Court in the Country. Thus, it is immpractical to move superior courts for each and every trivial matter. )urther, the sub%ect matter of a suit can also be of several 'inds. It may be related to either movable or immovable property, or it may be about marriage, or employment. Thus, speciality Courts are set up to deal !ith the specific nature of the suit to deal !ith it efficiently. &imilarly, it !ould be inconvenient for the parties to approach a court that is too far or is in another state. "ll these factors are considered to determine the court in !hich a particular suit can be filed. C(C lays do!n the rules that determine !hether a court has %urisdiction to hear a particular matter or not. These rules can be categoried as follo!s - (ecuniary Aurisdiction, Territorial Aurisdiction, &ub%ect matter %urisdiction, and riginal Aurisdiction.
Pecuni!r" ?urisdiction "s per Section 1%, every suit shall be instituted in the Court of the lo!est grade competent to try it. This is a fundamental rule !hich means that if a remedy is available at a lo!er court, the higher court must not be approached. More specifically, this rule refers to the monetory value of the sute. Each court is deemed competent to hear matters having a monetory value of only certain extent. " matter that involves a monetory value higher than !hat a court is competent to hear, the parties must approach a higher court. "t the same time, the parties must approach the lo!est grade court !hich is competent to hear the suit.
#o!ever, this rule is a rule of procedure, !hich is meant to avoid overburdoning of higher courts. It does not ta'e a!ay the %urisdiction of higher courts to hear matter of lesser monetory value. Thus, a decree passed by a court, !hich is not the lo!est grade court compenent to try the matter, is not a nullity. " higher court is al!ays competent to try a matter for !hich a lo!er court is compenent. This rule applies to the parties as it bars the parties to approach a higher court !hen a lo!er court is competent to hear the matter. Example 4aluation Aerritori!l ?urisdiction Territorial Aurisdiction means the territory !ithin a Co urt has %urisdiction. )or example, if a person " is cheated in Indore, then it ma'es sense to try the matter in Indore instead of Chennai. The ob%ect of this %urisdiction to organie the cases to provide convenient access to %ustice to the parties. To determine !hether a court has territorial %urisdiction, a matter may be categoried into four types 1. Suits in resect of iov!3le roert" Section 1 - &uits to be instituted !here sub%ect-matter is situated 3 &ub%ect to the pecuniary or other limitations prescribed by any la!, suits3 a for the recovery of immovable property !ith or !ithout rent or profits, b for the partition of immovable property, c for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, d for the determination of any other right to or interest in immovable property, e for compensation for !rong to immovable property, f for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court !ithin the local limits of !hose %urisdiction the property is situated5 (rovided that a suit to obtain relief respecting, or compensation for !rong to, immovable property held by or on behalf of the defendant, may !here the relief sought can be entirely obtained through his personal obedience be instituted either in the Court !ithin the local limits of !hose %urisdiction the property is situate, or in the Court !ithin the loc al limits of !hose %urisdiction the defendant actually and voluntarily resides, or carries on business, or personally
!or's for gain. Explanation.3 In this section +property+ means property situated in India. Section 1 - &uits for immovable property situated !ithin %urisdiction of different Courts3 $here a suit is to obtain relief respecting, or compensation for !rong to, immovable property situate !ithin the %urisdiction of different Court, the suit my be instituted in any Court !ithin the local limits of !hose %urisdiction any portion of the property is situated 5 (rovided that, in respect of the value of the sub%ect matter of the suit, the entire claim is cogniable b y such Court. Section 18 - (lace of institution of suit !here local limits of %urisdiction of Courts are uncertain 3 / $here it is alleged to be uncertain !ithin the loca l limits of the %urisdiction of !hich of t!o or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property !ere situate !ithin the local limits of its %urisdiction 5 (rovided that the suit is one !ith respect to !hich the Court is competent as regards the nature and value of the suit to exercise %urisdiction. $here a statement has not been recorded under sub-section /, and ob%ection is ta'en before an "ppellate or 1evisional Court that a decree or order in a suit relating to such property !as made by a Court not having %urisdiction !here the property is situate, the "ppellate or 1evisional Court shall not allo! the ob%ection unless in its opinion there !as, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having %urisdiction !ith respect thereto and there has been a conse*uent failure of %ustice.
2. Suits in resect of iov!3le roert" - It is said that the movables move !ith the person. Thus, a suit for a movable person lies in the court, the territory of !hich the d efendant resides. Section 19 - &uits for compensation for !rongs to person or movable3 $here a suit is for compensation for !rong done to the person or to movable property, if the !rong !as done !ithin the local limits of the %urisdiction of one Court and the defendant resides, or carries on business, or personally !or's for gain, !ithin the local limits of the %urisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. llustr!tions a ", residing in Delhi, beats : in Calcutta. : may sue " either in Calcutta or in Delhi. b ", residing in Delhi, publishes in Calcu tta statements defamatory of :. : may sue " either in Calcutta or in Delhi. +. Suits for coens!tion for ron (tort) - Section 19 applies to this as !ell. 4. Ot#er suits Section 20 - ther suits to be instituted !here defendants reside or cause of action arises3 &ub%ect to the limitations aforesaid, every suit shall be instituted in Court !ithin the local limits
of !hose %urisdiction3 a the defendant, or each of the defendants !here there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally !or's for gain7 or b any of the defendants, !here there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally !or's for gain, provided that in such case either the leave of the Court is given, or the defendants !ho do not reside, or carry on business, or personally !or' for gain, as aforesaid, ac*uiesce in such institution7 or c the cause of action, !holly or in part, arises. Explanation3" corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place !here it has also a subordinate office, at such place. llustr!tions a " is a tradesman in Calcutta, : carries on business in De lhi. :, by his agent in Calcutta, buys goods of " and re*uests " to deliver them to the East Indian 1ail!ay Company. " delivers the goods accordingly in Calcutta. " may sue : for the price of the goods either in Calcutta, !here the cause of action has arisen or in Delhi, !here : carries on business. b " resides at &imla, : at Calcutta and C at Delhi ", : and C being together at :enaras, : and C ma'e a %oint promissory note payable on demand, and deliver it to ". " may sue : and C at :enaras, !here the cause of action arose. #e may also sue them at Calcutta, !here : resides, or at Delhi, !here C resides7 but in each of these cases, if the non-resident defendant ob%ects, the suit cannot proceed !ithout the leave of the Court. O3=ection !s to ?urisdiction Section 21 - b%ections to %urisdiction3 / ;o ob%ection as to the place of suing shall be allo!ed by any appellate or 1evisional Court unless such ob%ection !as ta'en in the Court of first instance at the earliest possible opportunity and in all cases !here issues or settled at or before such settlement, and unless there has been a conse*uent failure of %ustice. ;o ob%ection as to the competence of a Court !ith reference to the pecuniary limits of its %urisdiction shall be allo!ed by any "ppellate or 1evisional Court unless such ob%ection !as ta'en in the Court of first instance at the earliest possible opportunity, and in all cases !here issues are settled, at or before such settlement, and unless there has been a conse*uent failure of %ustice. 6 ;o ob%ection as to the competence of the executing Court !ith reference to the local limits of its %urisdiction shall be allo!ed by any "ppellate or 1evisional Court unless such ob%ection !as ta'en in the executing Court at the earliest possible opportunity, and unless there has been a conse*uent failure of %ustice.
"s held in (athumma vs utty /29/, no ob%ection as to the place of suing !ill be allo!ed by an appellate or revisional court unless the follo!ing three conditions are satisfied i The ob%ection !as ta'en in first instance. ii The ob%ection !as ta'en at the earliest possible opportunity and in cases !here issues are settled at or before settlement of issues iii there has been a conse*uent failure of %ustice.
"ll the three conditions must be satisfied simultaneously.
:. Seci!l Suits - St!te t#e rocedure for institution of suits 3" !nd !!inst inors or ersons of unsound ind.
rder FFFII "s per 1ule /, the definition of minor given in Ma%ority "ct, /9?@ applies - a person !ho has not attained the age of /9 yrs or for a minor for !hose person or property a guardian or next friend has been appointed by the court or court of !ards, the age of ma%ority is / yrs. 1ead all 1ules in rder 6. *! C#!ndr! vs *! Sin# * 198 - &C held that a decree passed against a minor or a lunatic !ithout appointment of a guardian is a nullity and is void and not merely voidable. :. Suits 3" !nd !!inst t#e 6ovt.
1ead Order 2 and Section 9-82.
:. nterle!der Suit -
&ection 99 and rder 6@ &ection 99 - $here interpleader suit may be reinstitutedG $here t!o or more pe rsons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, !ho claims no interest therein other than for charges or costs and !ho 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 o btaining a decision as to the person to !hom the payment or delivery shall be made and of obtaining indemnity for himself5 (rovided that !here any suit is pending in !hich the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.
Procedure - *e!d Order +% *ule 1 B 4 :. ;#!t do "ou underst!nd 3" Set Off !nd Counter Cl!i> Distinuis# 3eteen &e!l !nd /uit!3le set off.
" set-off is a 'ind of counter-claim that operates as a defence to a claim. The doctrine of &et ff allo!s the defendant to put his o!n claim against the plaintiff before the court under certain circumstances.Technically, a set off can be defined as a discharge of reciprocal ob%ligations to the extent of the smaller obligation. )or example, " files a suit against : claiming @===H- . : may ta'e a defence that " o!es 6===H- to : as !ell. Thus, : is basically as'ing to set off 6===H- of "8s
claim and pay only ===H-. In ?!"!nti &!l vs 3dul i * 19%< SC defined &et ff a the extinction of debts of !hich t!o persons are reciprocally debtors to one anoth er by the credits of !hich they are reciprocally creditors to one another. :y claiming set off, the defendant is spared from filing a separate suit against the plaintiff. Thus, it reduces the number of suits before the court. (rovisions of &et off are specified in C(C under Order *ule . P!rticul!rs of set-off to 3e iven in ritten st!teent / $here in a suit for the recovery of money the defendant claims to set-off against the plaintiff8s demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the %urisdiction of the Court, and both parties fill the same character as they fill in the plaintiff8s suit, the defendant may, at the first hearing of the suit, but not after!ards unless permitted by the Court, presents a !ritten statement containing the particulars of the debt sought to be set-off. Effect of set-off3The !ritten statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final %udgment in respect both of the original claim and of the set-off 5 but this shall not affect the lien, upon the amoun t decreed, of any pleader in respect of the costs payable to him under the decree. 6 The rules relating to a !ritten statement by a defendant apply to a !ritten statement in ans!er to a claim of set-off. llustr!tions a " be*ueaths 1s. ,=== to : and appoints C his executor and residuary legatee. : dies and D ta'es out administration to :8s effect, C pays 1s. /,=== as surety for D5 then D sues C for the legacy. C cannot set-off the debt of 1s. /,=== against the legacy, for neither C nor D fills the same character !ith respect to the legacy as they fill !ith respect to the payment of 1s. /,===. b " dies intestate and in debt to :. C ta'es out administration to "8s effects and : buys part of the effects from C. In a suit for the purchase-money b y C against :, the latter cannot set-off the debt against the price, for C fills t!o different characters, one as the vendor to :, in !hich he sues :, and the other as representative to ". c " sues : on a bill of exchange. : alleges that " has !rongfully neglected to insure :8s goods and is liable to him in compensation !hich he claims to set-off. The amount not being ascertained cannot be set-off. d " sues : on a bill of exchange for 1s. @==. : holds a %udgment against " for 1s. /,===. The t!o claims being both definite, pecuniary de mands may be set-off. e " sues : for compensation on account of trespass. : holds a promissory note for 1s. /,=== from " and claims to set-off that amount against any sum that " may recover in the suit. : may do so, for as soon as " recovers, both sums are definite pecuniary demands. f " and : sue C for 1s. /,=== C cannot set-off a debt due to him by " alone. g " sues : and C for 1s. /===. : cannot set-off a debt due to him alone by ". h " o!es the partnership firm of : and C 1s. /,=== : dies, leaving C surviving. " sues C for a debt of 1s. /,@== due in his separate character. C may set-off the debt of 1s. /,===.
/ssenti!l Conditions for Set Off The suit must be of recovery of money. Example - " sues : for =,===H-. : cannot set off the claim for damages for breach of contract for specific performance. The sum of money must be ascertained. &ee Illustration c, d, e. The sum claimed must be legally recoverable. )or example, !innings in a !ager cannot be claimed in a set off. The sum claimed must be recoverable by all the defendants against the plaintiff if there are more than one defendants. The sum claimed must be recoverable from all the plaintiffs by the defendant if there are more than one plaintiffs. In the defendant8s claim for set off, both the parties must fill in the same character as they fill in the plaintiff8s suit. &ee illustrations a, b, h. /uit!3le Set off The provisions of 1ule < given above are for &e!l Set off . #o!ever, these provisions are not exhaustive. This means that a set off is still possible in certain situations even !hen some of the above conditions are not satisfied. )or example, in a transaction !here by goods are exchanged for services as !ell as payment, the defendant may be allo!ed to claim a set off for an uncertain amount for damaged goods. In a suit by a !asherman for his !ages, the defendant employer should be able to set off the price of the clothes lost by the plaintiff. In such a case, driving the plaintiff to file another suit !ould be unfair. " set off in such situations is called an /uit!3le Set off .
&C illustrated e*uitable set off in the case of 7!ris#c#!ndr! vs urlid#!r * 19% as follo!s - $here " sues : to recover @=,===H- under a contract, : can claim set off to!ards damages sustained by him due to the breach of the same contract by ". #o!ever, there is still one condition that must be satisfied for e*uitable set off - the set off claim must originate from the same transaction. &e!l Set Off
&um must be ascertained.
/uit!3le Set Off
&um need not be ascertained.
Claim need not originate from the same Claim must origination from the same transaction. transaction. >egal set off can be claimed as a right by E*uitable set off cannot be claimed as a right but by the defendant and the court is bound to court8s discretion. ad%udicate upon the claim. Court fee must be paid on set off amount.
;o court fee is re*uired.
The amount must not be time barred.
The amount may be time barred. #o!ever, if the defendant8s claim is time barred, he can claim only as much amount as is given in the plaintiff8s claim.
. Counter-cl!i 3" defend!nt / " defendant in a suit may, in addition to his right of pleading a set-off under rule <, set up, by !ay 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 his defence or before the time limited for delivering his defence has expired !hether such counter-claim is in the nature of a claim for damages or not 5 (rovided that such counter-claim shall not exceed the pecuniary limits of the %urisdiction of the Court. &uch counter-claim shall have the same effect as a cross-suit so as to enab le the Court to pronounce a final %udgment in the same suit, both on the original claim and on the counter-claim. 6 The plaintiff shall be at liberty to file a !ritten statement in ans!er to the counter-claim of the defendant !ithin such period as may be fixed by the Court. 0 The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. . Counter-cl!i to 3e st!ted - $here any defendant see's to rely upon any ground as supporting a right of counter-claim, he shall, in his !ritten statement, state specifically that he does so by !ay of counter-claim. C. /'clusion of counter-cl!i - $here a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of b y !ay of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application ma'e such order as it thin's fit.
:. On #!t rounds does ! second !e!l lie> Section 100. &econd appeal3
/ &ave as other!ise expressly provided in the body of this Code or by any other la! for the time being in force, an appeal shall lie to the #igh Court from every decree passed in appeal by any Court subordinate to the #igh Court, if the #igh Court is satisfied that the case involves a substantial *uestion of la!. "n appeal may lie under this section from an appellate decree passed ex parte. 6 In an appeal under this section, the memorandum of appeal shall precisely state the substantial *uestion of la! involved in the appea l. 0 $here the #igh Court is satisfied that a substantial *uestion of la! is involved in any case, it shall formulate that *uestion. @ The appeal shall be heard on the *uestion so formulated and the respondent shall, at the hearing of the appeal, be allo!ed to argue that the case does not involve such *uestion 5 (rovided that nothing in this sub-section shall be dee med to ta'e a!ay or abridge the po!er of the Court to hear, for reasons to be recorded, the appeal on any other substantial *uestion of la!,
not formulated by it, if it is satisfied that the case involves such *uestion. Section 100 - ;o further appeal in certain cases3 ;ot!ithstanding anything co ntained in any >etters (atent for any #igh Court or in an y other instrument having the force of la! or in any other la! for the time being in force, !here any appeal from an appellate decree or order is heard and decided by a single Audge of a #igh Court, no further appeal shall lie from the %udgment, decision or order or such single Audge in such appeal or from any decree passed in such appeal. Section 101 - &econd appeal on no other grounds3 ;o second appeal shall lie except on the ground mentioned in section /==. Section 102 - ;o second appeal in certain suits3 ;o second appeal shall lie in an y suit of the nature cogniable by Courts of &mall Causes, !hen the amount or value of the sub%ect-matter of the original suit does not exceed three thousand rupees. Section 10+ - (o!er of #igh Court to determine issues of fact3 In any second appeal, the #igh Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,3 a !hich has not been determined by the lo!er "ppellate Court or both by the Court of first instance and the lo!er "ppellate Court, or b !hich has been !rongly determined by such Court or Courts reason of a decision on such *uestion of la! as is referred to in section /==.
Su3st!nti!l uestion of l! The expression substantial *uestion of la! has not been defined any!here in the code. #o!ever, &C interpreted it in the case of Sir C#uni &!l e#t! E Sons &td vs Centur" S E f Co &td (* 192 SC 1+14) as follo!s -
+The proper test for determining !hether a *uestion of la! raised in the case is substantial !ould, in our opinion, be !hether it is of general public importance or !hether it directly and substantially affects the rights of the parties and if so !hether it is either an open *uestion in the sense that it is not finally settled by this Court or b y the (rivy Council or by the )ederal Court or is not free from difficulty or call for discussion of alternative vie!s. If the *uestion is settled by the highest court or the general principles to be applied in determining the *uestion are !ell settled and there is a mere *uestion of applying those principles or that the plea raised is pa lpably absurd the *uestion !ould not be a substantial *uestion of la!.+ To be +substantial+ a *uestion of la! must be debatable, not previously settled by la! of the land or a binding precedent, and must have a material bearing on the decision of the case, if ans!ered either !ay, insofar as the rights of the parties before it are concerned. To be a *uestion of la! +involving in the case+ there must be first a foundation for it laid in the pleadings and the *uestion should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that *uestion of la! for a %ust and proper decision of the case. "n entirely ne! point raised for the first time before the #igh Cou rt is not a *uestion involved in the case unless it goes to the root of the matter. It !ill, therefore, depend on
the facts and circumstance of each case !hether a *uestion of la! his a substantial one and involved in the case or not, the paramount overall consideration being the need for stri'ing a %udicious balance bet!een the indispensable obligation to do %ustice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
