Civil Procedure Code
Civil Procedure Code
Civil Procedure Code
CODE
Msrlawbooks
CIVIL PROCEDURE CODE
[with Amendments of 1999 & 2002]
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INTRODUCTION
2Page
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CONTENTS
Chapters
Introduction & Question Bank
1. Suits of a Civil Nature 7
2. Res Subjudice & Res Judicata
1 .Res subjudice (Stay of suit) 10
2 Res Judicata
3 Constructive
4 Res Judicata & estoppel
8. Commissions 43
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9. Receiver 44
10. Judgment decree and order 45
1. Judgment & decree
2. Order
3. Order & decree
11. General 47
1. Substituted Service
2. Remand
3. Restitution
4. Caveat
5. Representative Suit
6. Next friend
7. Legal Representative
8. Interrogatories
9. Foreign Judgment
10. Public Nuisance
11. Mesne Profits
12. Garnishee
13. Precept
14. Inter-pleader Suit
12. Reference, Review & Revision 55
1. Reference 2. Review
3. Revision .
13.Appeal to Supreme Court 57
14. Miscellaneous 58
1. Abatement of Suit
2. Withdrawal
3. Consent-decree
4. Compensatory Costs
5. Place of suing
6. Parties to Suit
7. Frame of Suit
8. Inherent powers of the Court
15. Appeal, Execution etc 62
1. Appeal from original decree
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QUESTIONS BANK
1 Explain, with illustrations, suits of a Civil Nature. 2
Discuss the doctrine of Res Judicata'
3 Explain the procedure to be followed to file a
case against the Government.
4 What is informa pauparis ? Detail the Procedure
provided for in the C.P.C. to file a suit by an
indigent person.
5 Foreign judgement operates as a Res Judicata
between the parties in India. Explain. Refer to
exceptions.
6 Explain the provisions that enable the courts to
grant
Temporary Injunctions.
7 (1) What are the grounds for attachment & state
properties which cannot be attached (2) Explain
'Arrest before judgement'3.Detail issue & service
of Summons.
8 How & for what purpose is a Commission
appointed,
Explain its powers & functions
9 .1) Define & distinguish an order from a decree.
(2) Explain Reference, Review, Revision
10.(1) Discuss the doctrine of Restitution.
(2) Write a note on interpleader suit.
11 Explain how appeals are made to the Supreme
Court
from Civil Proceedings
12 Detail the provisions relating to the place of suing
and joinder of parties.
2.Explain Alternate Dispute Resolution [Out of Court Settlement]
3 Explain:(i) Res subjudice (ii) Constructive Res judicata
.
(iii) Caveat (iv) Remand (v) Next friend (vi)
Garnishee
(vii) Precept (viii) Consent-decree.
14 Write Short notes on : •
(i) Public Nuisance (ii) Mense
Profits (iii) Interrogatories (iv)
CHAPTER 1
SUITS OF A CIVIL NATURE
Ch.1 Suit of a Civil Nature:
Civil Suits are divided into : i) Suits of a civil
nature and ii) Suits not of a civil nature.
The Civil courts have jurisdiction to try suits of a
Civil nature. They have no jurisdiction to try suits not
of a Civil-nature. This principle is laid down in Sn.9 of
C.RC. It says that the Civil Courts have jurisdiction to
try all suits of a Civil nature excepting those that are
expressly or impliedly barred.
The C.P.C. 1976 has added two explanations.
i) A suit in which the right to property or to an
office is contested, is a suit of a Civil nature, even
though such a right is connected with a religious right
or with religious ceremony, ii) It is immaterial whether
or not any fees had been attached to an office or such
an office was attached to a particular place or not,
Eg.: i) Suits of Civil nature: Matters relating to
Easement, Adoption, Marriage, title to property, to run
a customary bull race,, right to burial.
ii) Suits not of a civil nature: Suit for claiming
6Page dakshina for worship at a temple by the pujari
(worshipper), political questions
etc.
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Suits expressly barred: Remedy of a workman
against termination order, is barred as the remedy is
in the Industrial Disputes Act. Suits dealing with Act
of State & public policy are barred.
The cardinal rule is therefore that the Civil Courts
can entertain
only suits of a civil nature. But, vexed problems do
come before the
courts with mixed rights civil & religious. The courts
are guided by certain procedural principles in such
circumstances.
i) If the main question or the only question is in
respect of caste or religious right or ceremonies it is not
of a civil nature but, if the religious right is only a
subsidiary question, then it is of a civil nature.
Further, if the main question cannot be decided
without deciding the religious or caste question then,
the matter is of a civil nature and the courts have
jurisdiction.
Expulsion from caste (Excommunication). This
will deprive a person of his legal right which forms part
of his status. Hence, suit will lie. However, excluding a
member from invitation to caste dinners or ceremonies
will deprive him a social privilege, and hence no civil
suit can be filed.
Similarly a) No civil suit can be filed to compel a
pujari to adorn an idol at a certain season.
b) Suit in respect of a mere dignity attached to an
office is not of the civil nature. The suit of a
swamiji ,that he should be carried on the high road in
a palanquin is not a suit of a civil nature as it is .only a
religious honour.
ii) If the main question is a civil or a legal right, it
is a civil nature. Therefore, a right to an office is a suit
of a civil nature. Office may be secular or religious.
A religious office may be of two kinds :
a) Those offices to which fees are attached as of
ight.
Eg. Khaji, Aya of a Mutt, Joshi of a village, or
pujari of a temple, Upadayaya of a Caste.
b) Those offices to which no fees is attached.
Hence, the officer may be receiving an ex gratia. No civil
suit can be filed to recover ex gratia amounts
.The Bombay High Court had maintained a
distinction between (1) an office attached to a sacred
7Page place (2) office not so attached. It allowed cases under
(1) and not under (2)
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To override this new C.P.C. provides that whether
any fees is attached or not and whether the office is
attached to any religious place or not, it is a suit of a
civil nature.
iii) Interference with temple properties. Eg.:
Removing the name or other religious mark is of civil
nature. Right to worship at a certain place is of a
civil nature. Right of burial is a civil right. Carrying
religious procession on the highway is a civil right.
Hence, a civil suit may be filed.
iv) Examples:
1. Right of an elected person to act as such
2. Right to vote or stand for election
3. Suit for dissolution of marriage
4. Right of a club or Association member to
continue as member
5. Suit for rent contribution, mesne profits, etc.
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CHAPTER 2
RES SUBJUDICE & RES JUDICATA
Ch. 2.1 Res-Subjudice: Sn .10 CP.C.
This means 'a right under judicial consideration'.
In order to prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect of the same
matter in issue, provisions are made in Sn.10 C.P.C.
Such a matter is said to be 'Res Subjudice' if the matter
previously instituted is pending in another court of competent
jurisdiction.
What is barred is the second suit instituted. The second court
should not proceed with the trial of the suit if:
i) The matter in issue is also directly and substantially
in issue in a
previously instituted suit between the same parties.
ii) The previously instituted suit must be (a) in the
same court in which the second, suit is brought or (b) in any
other court original or appellate.
iii) The previously instituted case must be pending in
any of the
courts as above or Supreme Court competent to grant the relief.
E.g.: B residing in Calcutta, has an agent A at Mysore to sell
goods. A sues B in Mysore for balance due on account. During the
pendency of the suit B institutes a suit against A, in Calcutta. The
Calcutta court must not proceed as the matter is re-subjudice in
Mysore Court. The suit must be stayed.
Exception: If a suit is pending in a Foreign Court, the suit is
not barred in India and hence, a suit may be filed.
The provisions in Sn 10 are mandatory. It also applies to
proceedings under Art 226 of the Constitution.
Ch.2.2. Res Judicata : Sn. 11 C.P.C.
Res Judicata means 'right decided’. This means 'the matter is
adjudicated' and hence, the competent court has already decided the
matter. The rule is that the second trial should be barred to prevent
multiplicity of proceedings. This rule was laid down in the Duchess
of Kingstone's case by Sir William de Gray, Judge. However,
several conditions are to be fulfilled to bar the jurisdiction of the
9 second court.
Page Conditions
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i) The matter directly & substantially in issue in the
subsequent
suit must be the same matter which was directly and substantially
in issue either directly or constructively in the former suit. Former
suit is a suit which has been decided prior to the suit in question.
a) A sues B for breach of contract. The suit is dismissed. A
subsequently sues B for damages for breach of contract orl the
same contract. This-is barred under Re Judicata.
b) A sues B for rent due for the year 1995. The defense is that
the rent has been paid and that there are no dues. Hence, the claim
for rent is the matter directly and substantially in issue.
ii) The former suit must have been between the same parties
or
between their representatives.
iii) The parties to the suit must have litigated under the same
title in the former suit,; same title means the same capacity.
Eg.: A a mahnt of a Hindu mutt, dies. His heir B sues 'S' to
recover mutt property from him. The suit is dismissed on the
ground that the heir had not taken out succession certificate. But
later B is appointed duly as the manager of the mutt. He can sue 'S'
and there is no res Judicata.
iv) The court which decided the former suit should have been
a
court competent to try the subsequent suit.
If the first court had exclusive jurisdiction, then that court's
jurisdiction will act as res Judicata to bar any subsequent suit.
If the first court had concurrent jurisdiction then that court
is competent hence res judicata operates.
Hence, if the first court had neither exclusive nor
concurrent jurisdiction, it has no jurisdiction at all. Hence res
judicata will not apply. The suit may be initiated.
v) The matter directly and substantially in issue in the subse-
quent suit must have been heard and finally decided by the court in
the suit.
There must be final decision, the matter is heard and
finally decided in any one of the following ways:
(a) Ex Parte (b) Dismissal (c) Decree (d) Dismissal due to
plaintiffs failure to produce evidence.
Explanation :- Sn 11 has 8 explanations : According to
10 them
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i) The matter in the former suit should have been alleged by
one
party and admitted or denied by the other ii) Competence of court
is decided irrespective of a provision
to an appeal in the earlier suit, iii) "Matter" which might'or ought to
have been agitated or
defended in the earlier suit shall be the matter directly or
substantially in issue.
iv) Relief, if not, granted in earlier suit shall be
constructed as rejected.
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as adopted son. The suit was dismissed as adoption was not
proved. Later A sued B alleging that he was a 'bandhu' of C and
hence was entitled. This is barred by constructive res Judicata. B
ought to have pleaded that he was a 'bandhu' in the earlier suit.
Suit dismissed
Ch. 2.4. Res judicata and estoppel Distinguished:
Though res judicata is sometimes treated as part of the
doctrine of estoppel, still they are essentially different.
Res judicata Estoppel
1. Res judicata under Sn.ll, is Estoppel as per Sn.115
of
based on public policy. It is the Evidence Act is by
essentially procedural. Based conduct of parties, or
on "Nemo dabet bix vexari" (No agreement or estoppel in
one should be vexed twice) to pais.
put an end to litigous tendency. This is essentially a
What is barred in the second suit rule of evidence. It is
on the same cause of action based on the rule that
if
12
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a person
induces another
to alter his
between the same parties and subject to situation, he
other conditions of Sn.ll. cannot take
advantage of
such altered
situation. He
2. Res judicata ousts the juris will not be
diction of the court in the second suit. allowed to
contradict
3. Deals with jurisdiction of the himself.
second court itself and bars it from
Estoppel
exercising jurisdiction.
shuts the
mouth of the
party from
blowing hot
and cold in
the same
breath.
This is by a
party and hence
he is prevented
from going back
on his earlier
statement.
13
Page
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CHAPTER 3
CHAPTER 4
INDIGENT PERSON
Ch. 4.1 Informa Pauperis
(Suits by indigent person)
Provisions are made in C.P.C. to enable a pauper to file a
suit subject to certain conditions. 0.33rr. 1 to 16 provide for this.
A person is a pauper when he is not possessed of sufficient
means to pay the court fee to institute a suit. Where no such fee is
prescribed, the person is a pauper when his entire property is
below Rs.1000/- value excluding his necessary wearing apparel
and of course the matter of the suit.
Suit
0.33 provides for the procedure to file a suit informa
pauperis. Every application for leave (permission) to sue informa
pauperis must contain the particulars as required in a plaint. Also
a schedule of any movable or immovable property with estimated
value should be annexed. The plaint should be duly signed and
verified.
Presentation
The application should be presented to the Court by the
applicant or agent capable of answering material questions put to
him by the court.
Examination
The applicant is examined, if the application is proper and
duly presented and if the court thinks fit to examine. The
examination relates to the merits of the claim and property of the
applicant.
Rejection
The court rejects the application:
i) If it is not framed and presented in the prescribed manner.
I ii) If the applicant is newfound to be a pauper. iii) If the
applicant has fraudulently disposed of his property
within two months next before instituting the suit. iv) If
15
there is no cause of action.
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Hearing
If there is no reason to reject the application, the court shall
fix a day for receiving the evidence by the applicant to prove his
pauperism. Evidence to disprove pauperism may be allowed.
(Notice to the opposite party and Govt. pleader necessary). On
the day fixed the court shall examine the witnesses produced by
either party and may examine the applicant and make a
memorandum thereof. Thereupon the court may give its decision
allowing the application or its refusal.
Admission of application: If the application is granted it
should be numbered and registered. It shall be deemed to be a
plaint and the suit shall proceed of course without payment of
Court fees.
Dispaupering
i) If the plaintiff is guilty of vexatious or improper conduct
in
the course of the suit.
ii) If his means are more than a pauper.
iii) If the plaintiff transfers his interest in the subject matter,
The court may dis-pauper him. Under the new C.P.C. the
court is empowered to assign a pleader to an indigent person who
is not represented by a pleader Order 33, Rule 18 also provides
for free legal services to such persons.
Costs
Where the plaintiff succeeds, the court shall calculate the
amount of court fees and recover the same from the plaintiff.
CHAPTER 5
PRELIMINARY TOPICS
Ch. 5.1. Pleadings :
16 i) Pleadings are statements in writing drawn up and filed by
Page each party to a case, stating what his contentions will be at the trial,
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and giving all such details as his opponent to know, in order to
prepare his case in answer (P.C. Mogha).
There are two pleadings : The 'Plaint' & the 'Written
Statement'.
The C.P.C. defines pleadings (O.VI R.2) Every pleading shall
contain, and contain only a statement in a concise form of the
material facts, on which the party pleading relies for his claim or
defense, as the case may be, but not the evidence by which they are
to be proved.
According to Sri. P.C Mogha :
Drafting of pleading is an art, it requires a good
knowledge of law and the skill of sorting out material facts from
the whole bundle of facts and circumstances brought to the
knowledge of the Advocate.
ii) Essentials :
a) Every pleading must state facts and not law :
Eg : The deft, is in possession of the mortgaged property and
'is liable to render accounts of income and expenditure'. (There is a
statutory duty and hence, need not be pleaded)
b) Pleadings should have only material facts
The party must plead all material facts on which he intends to
rely and must plead material facts only. These are 'facta probenda'
(Facts to be proved).
1. In a claim on a Promissory note, it is unnecessary to
plead, that money was given because of the honesty of the
promisor.
2. In denying, the receipt of any money taken as a loan,
it is unnecessary to plead that the defendant is a very rich man and
that he had never taken any loan from any body.
c) Pleadings should not contain the evidence, but
only facts :
Eg: An Insurance company was defending the claims made
by a party. The term of the policy was that it would become void
if the insurer-died by his own hand'.
In the written statement the Company had stated that policy
holder was a moody fellow, that he had bought a pistol
from a shop a few days before his death and that he had
also written to his wife that he would kill himself. The court
17 held that all this was evidence and hence should not be
Page included in the pleadings (Written Statement). It was
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sufficient to say that "the policy holder died by his own
hand".
d) Facts must be pleaded with simplicity, brevity
and precision.
This rule is more easily said than done. As P.C. Mogha,
points out, precision and brevity can be attained by experience
and careful observation.
1. Simple words and short sentences should be used.
Facts must be stated plainly and with precision. Use of
pronouns must be avoided. The said defendant or the said
plaintiff may be used often to avoid ambiguity. Similarly 'the
said deed', the First-schedule property' etc may be used.
2. Dates, sums, numbers must be expressed in figures.
3. Chronological order must be followed.
4. Legal effects of documents must be briefly stated,
without reproducing the document or quoting from it.
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PLAINT (Proforma)
In the court of....... at ........
Original Suit (O.S.) No......... of 2012
A S/o, B, aged 40, residing
at No....... Street ....... Place . Plaintiff
Versus
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Versus
Krishnappa and others .........Defendants.
Written statement under Order VIII Rl C.P.C.
First Defendant begs to state as follows :
1 that
2
---------------
Verification signature of Defendant
21
for instance, fraud, limitation, release, payments,
performance, or facts showing illegality etc.
Page
In a suit by a firm, if the defendant wants to plead its
non-maintainability on the ground of the firm's non-
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registration, it will not be sufficient to say that plaint does not
allege that the firm is registered.
3. Subject matter:
The jurisdiction in civil matters is based on the subject matter
as well.
i) Generally, money suits are confined to small causes courts
upto a fixed amount. Matrimonial matters are to be initiated at the
District Judges court. Various acts prescribe which court has
jurisdic
tion. ;
ii) The suit is to be instituted where subject matter i.e., immov-
able property is situated.
The general rule is that parties cannot create or oust the
jurisdiction of the courts.
Ch. 5.2.2. Suit by or against a partnership FIRM order 30
Rules 1 to 10 C.P.C. deal with provisions to file a suit by or against
a firm.
Partnership firms
1. Partners may sue or be sued in the name of the firm:
According to 0.30 R.I, any two or more persons claiming (or
being liable) as partners, and carrying on business in India, may sue
or be sued in the name of the firm. These persons should be partners
of the firm at the time of accrual of the "cause of action". Further,
any party to the suit, may apply to the court for a statement of
names and addresses of the persons who were partners (at that time
of accrual of cause of action) in such firm and this is to be furnished
by the party and verified in such manner as the court may direct.
All pleadings (plaint, written statement etc) may be verified or
signed by any such person (partner).
The suit is not affected, if there is a minor in the firm, or one
who is not capable of suing or be used.
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When the suit is filed in the name of the firm, the defendant
may in writing demand the names and addresses of all the partners
and the plaintiff shall furnish the same to the court.
If the plaintiff fails to so furnish, the court may stay all
proceedings on such terms as it may direct. However, if the names
and addresses are declared, the suit shall proceed, with the partners
arrayed in the plaint. The proceedings continue in the name of the
firm, but the names are to be entered in the decree of the court.
3. Summons : .
Provisions are made for service of summons. If persons are
named in the cause title, the summons shall be served on any
partner or partners or at the place of business as directed by the
court. This is good service of summons.
However, if the plaintiff has knowledge, at the time of filing
the suit that the partnership firm has been dissolved summons will
have to be served on every such partner of the said dissolved firm.
Appearance is necessary, if the person is a partner. Otherwise,
he may enter appearance under protest (Rule 8), stating that he was
never a partner at any material time. The court decides whether that
person was a partner or not.
When the partners are sued in the name of their firm, they
should make appearance, in their names but subsequent
proceedings shall be in the name of the firm.
Death : In case of death of a partner, it is not necessary to join
the legal representative. But a legal representative has a right to
apply to the court to be made a party.
Suits between partners:
R.9 provides for suits between partners of the same firm.
Similarly, in case of two or more common partners in two firms,
suits by one firm against the other may be filed.
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if minor's property is under charge of court of Wards Act, the
minority is upto 21 years.
The cause title of the suit gives the title and description. "X,
minor, by his next friend Mr.. ..... " versus AB defendant.
Suit filed, without next friend should be taken off the file, on
hearing the objector - defendant.
Appointment:
The court has powers to appoint (Rule 3), a "Guardian" for the
suit, by issuing an order made on the application of the guardian.
The guardian should file an application, with an affidavit verifying
that he is a fit person and has no interest in the suit adverse to the
minor i.e., he would act for the benefit of the minor. The court will
appoint after giving notice to Father, but if he is not alive, to the
mother if both are dead, to the guardian, if any, of the minor.
Guardian should give his consent for appointment.
The guardian so appointed continuous until he is terminated
by removal, retirement, or death.
If any person is not fit to be appointed as guardian, the court
may appoint an officer of the court as guardian and his expenses
shall be met from the property of the minor as justice and
circumstances
(Rule 3).
ii) If defendant appears and plaintiff does not, the court is
bound
to dismiss the suit.
iii) If plaintiff appears and defendant does not, the court is
authorised either to postpone the hearing or proceed exparte.
The order is applicable to hearing, before the trial begins. For
subsequent stages suitable provisions are made in order 17.
26
defendant was present at the time of filing of suit and admits the
claims.
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If the defendant fails to file his written statement within
the 30 days, the Court in its discretion may allow to file his W S
on a day not later than 30 days from date of service of summons
to him.
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documents produced for the cross examination of the plaintiffs
witnesses, or, handed over to a witness merely to refresh his
memory.
Rule 18. 1A deals with the duty of defendant to produce documents
upon which he relies for relief
Order of dismissal
If plaintiff or his agent has not sent the summons within 2
days to the defendant or he has not paid the court-fee or
charges, the court shall make an order that the suit be
dismissed.
When the suit is called on, for the "first" hearing, Rule 6
provides that if the plaintiff appears and the defendant does not
appear, the court may make an order to hear exparte 1) When
summons has been served on the defendant.
2) and it is proved that it is so served.
The court must be satisfied that there was due service of
summons on the defendant. "Service" does not mean by Regd. post.
Hence, no exparte decree is made on that basis.
The court weighs the merits of the suit even in exparte
proceeding.
Adjourned exparte hearing (0.9 R.7) :
When the hearing exparte, is adjourned to a later date, the
defendant may appear and file an application with affidavit and
assign "good cause" for his non-appearance on that date, The court
may issue suitable directions as to costs etc. He is then entitled to
defend the suit.
Non appearance of plaintiff (R.8):
When the defendant appears and the plaintiff does not appear,
the court may dismiss the suit. However, if the defendant admits
any claims, the court may pass a decree on the basis of the
admission. But in respect of other claims, if any, the court dismisses
such claims.
In such a case, the plaintiff is barred from filing a fresh suit
R-9. But, he may file an application to set aside the dismissal by
showing "sufficient cause" and the court at its discretion may set
aside the dismissal order and allow the party to proceed with the
suit. Notice should be served on the defendant, before making such
an order under R-9.
In case of non attendance of one or more of several plaintiffs
or defendants, the court at the instance of the plaintiffs (or
defendants) appearing as the case may be, permit the suit to proceed
in the same way as all were present. Attendance in person :
29 R-12 provides that where the plaintiff or defendant is to
Page appear in person as per summons and absents without sufficient
cause, the suit will be dismissed as per the Rules under order 9.
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Setting aside exparte decree (0.9, R.13) :
Rule 1 : If the right to sue survives, the Suit shall not abate on
the death of plaintiff or defendant.
Rule 2 : Death of one of several plaintiffs or defendants :
When there are several plaintiffs or several defendants and
any of them dies, and the right to sue survives, the court shall make
an entry on record and the suit continues between the surviving
plaintiffs alone or against surviving defendants alone.
Rule 3 : Death of sole plaintiff or one of several plaintiffs :
In such a case, if the right to sue survives to the sole surviving
plaintiff, or the right to sue does not survive to surviving plaintiff
alone - the court, on an application made in that behalf, shall allow
the legal representatives to be made a party, and the suit proceeds.
However, if no application is made within the period of
limitation, the suit abates so far as that dead plaintiff is concerned.
Costs, if any may be recovered by defendant from the estate of the
deceased plaintiff.
31 legal
representative he may be brought on record.
Page
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ii) When one of several defendants dies, and the right to
sue does not survive to defendants alone, legal representatives may
be brought on record.
iii) If no application is made to bring on record, the suit
abates.
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to several appellate courts, application should be made to the High
Court to which the appellate courts are subordinate.
Sn. 24 : General power of transfer :
The High Court or District Court on motion by any party - but
with notice and after hearing the parties or suo moto, at any stage,
may transfer any suit, appeal or other proceeding pending before it
to any competent court to try or dispose of.
It.has the powers to withdraw any suit, appeal or proceeding
pending in any court subordinate to it, and may try and dispose of or
may. transfer to the competent court to dispose of the same.
The grounds of transfer should be sufficient and the burden is
on the applicant. If he has a genuine apprehension that he would not
get justice from the court, or if transfer would be "convenient" to the
parties and "would be cheap" - or if the balance of convenience was
in favour of transfer - the court may, if satisfied with the reasons,
transfer the suit.
Sn. 25 powers of Supreme Court:
On application filed with affidavit by a party before the
Supreme Court, the Court after giving notice and hearing parties
may make an order for transfer, if such an order would be necessary
for the ends of justice. It may transfer any suit, appeal or proceeding
from a High Court or Civil Court of a State, to another High Court
or Civil Court.
Ch. 5.9. "Costs follow the event" - Explained
Sn. 35 C.P.C. deals with costs of suits. According to it costs of
the suit and incidentals thereto are determined by the court at its
discretion.
It has full power to determine to what extent the costs are to
be paid by whom and from what property. It may give suitable and
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iv) The cost of realisation, should be deducted
before rateable
distribution.
Distribution of proceeds:
When the immovable property of the J.D. is sold by the
court, the sale proceeds shall be applied to meet:
i) cost of making sale ii) amounts due under
the decree iii) interest and principal on
encumbrances if any. iv) rateable distribution
of moneys among all the eligible decree-
holders.
Restrictions :
1. The right of the Govt. is not affected by the
section.
2. The sale of immovable property by the court is
subject to the mortgage or change, if any, on the property and
hence, the purchaser gets the property subject to the said
mortgage or charge.
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the provisions of the Legal Services Act 1987 will become
applicable.
(d) for mediation, the Court makes a compromise between the
parties and follows such procedure as may be prescribed.
Direction:
C P C Amendment of O. X.1A.
Direction of the Court to opt for any one mode of alternative
dispute resolution —
Where a suit is referred under rule 1A, the parties shall appear
before such forum or authority for conciliation of the suit.
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CHAPTER6
TEMPORARY INJUNCTIONS
Ch. 6. Temporary Injunction. (0.39)
Provisions are made in the C.P.C. to enable courts to grant
temporary injunctions.
Injunctions are of two kinds.
Temporary and Permanent.
Temporary injunctions are those that continue for a
specified time or until further orders are made by the courts.
They may be issued at any stage of the suit or even before the
issue of summons, but it is essential that the suit should be
pending in the court. But, a perpetual injunction can be granted
by the decree of the civil court made at the hearing and on the
merits of the case. These are governed by the Specific Relief
Act. Circumstances under which a temporary injunction can be
granted are :
i) The property which is the subject matter of dispute
must be in danger of being wasted, damaged or transferred by a
party to the suit or wrongfully be sold in execution of a decree.
ii) The deft must be threatening to dispose of his
property with
a view to defraud his creditors. iii) The deft threatens to disposses
the plaintiff or otherwise
cause injury to schedule property.
Illustrations
i) X lets out vacant land to Y under a contract that Y
should not dig there. Y makes arrangement to dig and carry sand
for his purpose. X may sue for an injunction to restrain Y from
doing so.
ii) T is the trustee and A is the beneficiary. T is
iii) X pollutes the air with smoke and gas and interferes
with the
physical comfort of the neighbours. Y may sue for an injunction.
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This is a preventive relief until disposal of suit or until further
orders. This is an equitable relief.
If order is granted till the disposal of the interlocutory
application for injunction (without finally disposing) it is ad
interim. If given in finally disposing of application it is Temporary
injunction. This enures to the benefit of the party until disposal of
suit, or until further orders.
The plaintiff must come with clean hands & disclose all facts.
The court will grant, if there is a prima facie case. There must
be a serious question to be tried, or on facts there should be a
probability of getting relief, by plaintiff. The courts interference
should be necessary to protect against injury; otherwise mischief
would be more.
Balance of convenience is in favour of plaintiff. Breach of
injunction by defendant, amounts to contempt of court.
Under this order 39, injunction can be granted to prevent
second marriage, if the first wife / husband is living.
Appeal: An appeal
If the plaintiff has brought a suit on insufficient grounds or if
there was no reasonable ground for suing, the court, may on the
application of the deft, award compensation upto Rs.1,000/- to the
deft. The Plaintiff shall pay this.
CHAPTER 7
ATTACHMENT & ARREST Ch. 7.1 Properties which
cannot be attached
A suit in a civil court concerning any right to any property may
be decreed in favour of the plaintiff or may be dismissed. If the suit
is decreed, the person in whose favour the decree is passed is called
the decree-holder and a person against whom it is given is called the
judgment-debtor. The decree-holder can resort to execution to realise
the amount, by way of attachment of the property of the judgment
debtor, or by ways of arrest of the judgment debtor or by both.
Attachment is an order of the court prohibiting the
judgmentdebtor from dealing with the property attached. It is only
after attachment that it will be ordered to be sold by the court by
39 court auction. Those properties which may be attached are
mentioned in Sn.60 subject to certain exceptions.
Page
Property liable for attachment:
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Lands, Houses, other buildings, goods, moneys, cheque,
Government Securities, debts, shares etc. as per Sn.60.
The following are not liable for attachment:
i) Necessary wearing apparel, cooking vessels, beds and
beddings of the debtor, of his wife and children. Personal ornaments
which should be with a woman by religion. (Eg.Mangala Sutra etc.)
ii) Tools of artisans, Agricultural implements including cattle and
seed grain and agricultural produce as are necessary for livelihood.
iii) Books of account, a mere right to sue for damages,
any
right of personal services, etc.
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If the court is satisfied that the deft has an intention to delay
or obstruct the execution of a decree that may be passed against
him:
i)has absconded or is about to abscond or had left or is about
to leave the local limits of its jurisdiction.
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The Court may appoint an advocate or pleader or any
person at its discretion as a commission. Commissions may be
appointed, i) to make local investigations, ii) to examine accounts,
iii) to make partitions.
iv) to make scientific investigation or to make sale of
movable property.
Powers
The Commission should discharge its functions as per the
directions of the Court.
i) It may examine the parties or any witnesses or any other
person whom it deems fit.
ii)Call for and examine documents and other relevant things,
iii) Enter any place or buildings at reasonable times, iv)
Record objections to answer questions.
t
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ers as the Court orders. When the party to the suit has a right to
remove any person from possession of property the receiver may
remove him with the permission of the Court.
Eg.: i) In a suit for dissolution of a partnership firm, if the
court thinks fit, it may appoint a receiver to protect the assets of
the firm. ii) In a suit for partition of a Mithakashara Coparcenary
prop-
erty, the court may appoint a receiver to the co-parcenary
property.
Remuneration: The court fixes the amounts to be paid to
the receiver as remuneration.
Grounds of appointment: Mere convenience is not a
ground. There must be a just and convenient ground.
Status: The Receiver, duly appointed by the court is an
officer of the court and hence he is subject to the orders of the
Court. He is also the representative of the court and also of all the
parties
44 Judge
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Seal
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(Cost of suit with details)
Ch. 10.2. Order
Means the formal expression of any decision, of a Civil
Court, which is not a decree.
Eg.: i) Order issued under Sn. 91 Public Nuisance ii)
Order made under Sn.95 for payment of compensation to
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CHAPTER 11
GENERAL
Ch.ll. 1 Substituted Service
The usual procedure of serving the summons to the
defendant, is by delivering it to the defendant if he is living
within the jurisdiction of the Court, or to his agent if so directed
by the Court. The defendant or his agent is required to give an
acknowledgment in writing duly signed with date.
Where this personal or direct service fails, the summons
may be served under 'Substituted Service'. Where the defendant
refuses to sign or where the Ameen (Bailiff) after all due and
reasonable diligence cannot find him, he may serve as follows;
i) He should affix a copy of the Summons on the outer door or
some conspicuous part thereof.
ii) He should return the original to the court endorsing the
nature of the service.
iii) If the Court is satisfied, declares that it is duly served.
Where the Court is satisfied that there is reason to believe
that the defendant is deliberately avoiding the summons, it may
order the summons to be served by affixing a copy in some
conspicuous place in the court-house and also in the usual place
of his residence, or business or working.
Under this the Court may order service by advertising in
the newspapers. The Court shall fix the time for the appearance
of the defendant.
Ch. 11.2 Remand (O 41 R 23)
Remand means to send back a case to the same lower court
for taking action thereon. This is the inherent power of an
appellate court. Where the appellate court finds i) that the trial
court has decreed the suit on its finding on a preliminary issue,
and that ii) the said decree is reversed in appeal, then it may
remand the case to the same lower court with suitable directions.
The Appellate court sends a copy of its judgment and its order to
the trial court. It may thereby direct to re-admit the suit and to
proceed with the suit. The evidence recorded earlier to the
remand order may be accepted as evidence.
Eg.: A files a case against B. The trial court declares the
suit as barred by limitation. In appeal this decree is reversed. The
appellate • court may direct to the trial court to re-admit the case
46 with the same suit number and proceed with the case.
Page The inherent power to remand includes cases of error,
omission or irregularity committed by the lower court.
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Ch.11.3 Restitution Sn.144 C.P.C.
Restitution means 'restoring to the party what he has lost'.
This doctrine of restitution is applicable in Civil courts in the
following circumstances:
i) The trial court must have given a decree or order
and in pursuance the plaintiff P must have received some
benefit from the defendant D.
ii) The appellate court on appeal from the trial court
must
have reversed the trial court order or decree in favour of D.
In such a case,. D may make an application under
Sn.144. The court may make orders to restore D to his status
ante. For this purpose it may order for refund of costs, for
payment of interests, damages, Mesne profits as it may find
proper.
The court will not entertain any suit but an application
for restitution will suffice.
Eg.: A obtains a decree against B for possession of 10
Metric Tonnes of timber, and in execution thereof obtains
possession. This decree is reversed by the appellate court. B may
make an application for the restoration of his 10 Metric Tonnes of
timber.
The doctrine of restitution is based on the rule that when a
person has made a gain or benefit under a decree, and the appellate
court reverses the decree, the law imposes an obligation on such a
party to restore to the other who has lost i.e, Status quo ante is to be
restored. It is for this reason that the trial court takes security from
the party for restitution of the property, if the decree is reversed on
appeal.
Ch.11.4 Caveat (Sn.148 A, CPC) or Caveat application Caveat
means 'beware'.
Any person who claims any right of hearing before the Court,
where an application is or is about to be made, may lodge a 'Caveat'
in that regard, before that court. He is called the Caveator. Such a
Caveator shall serve a notice of the Caveat by Regd. Post
(acknowledgment due) on the person who is or is about to make an
application.
If a Caveat is' duly filed, the court shall serve notice to the
47 Caveator. The applicant shall furnish to such a Caveator a copy of
the application and also copies of any paper or documents filed by
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him before the Court.
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The period of limitation of the Caveat is 90 days. Hence, if
within this period no application is filed by the applicant, then the
Caveat lapses.
Ch.11.5 Representative Suit
The general rule is that all persons interested in a suit ought
to be made the necessary parties thereto. However, on the basis of
convenience, there is an exception. This is the representative suit.
Under this a few persons should be allowed to file a suit when there
is a community of interest among a large number of persons.
The leading case is Ramashesiah V Ramappa.
According to this, a suit may be filed by one or more
persons on behalf of themselves and others having the same
interest in the suit. The court may grant permission for filing
such a suit. It shall give notice to all concerned persons or by
public advertisement as the case may be. Any person who is
interested may apply to the court to include his name.
No part of the suit should be withdrawn or abandoned or
compromised without notice to all concerned.
A decree under this rule shall be binding on all
personsplaintiffs & defendants-and acts as a Res judicata.
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ii) When a party sues in a representative character, and
dies, the person on whom the property devolves, is a legal
representative.
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Eg.: Universal legatee, Legatees of portions of estate.
Where a decree is passed against a legal representative, for
payment out of property of the deceased, the decree can be
executed against such property as remains in his hands.
Son or other descendant in Hindu Law is a legal
representative of the deceased.
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bona fide or privileged. If questions are vexatious or improper, the
cost sustained by the party shall be paid by the party in default.
follow it.
v) Any foreign judgment obtained by fraud is void,
and
hence, not followed by Courts in India.
vi) If the foreign judgment has decreed for a claim,
which is a breach of any Indian Law, then the decision is not
found. Hence, a foreign judgment for a gambling debt would not
be enforceble in Indian courts.
51
Presumptions as to foreign judgments :
Page
According to Sn.14, a certified copy of the foreign
judgment is admissible in evidence in India, There is a
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presumption that the judgment is duly pronounced. This
presumption is, of course, rebuttable.
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The court may pass a decree for the mesne profits which
have accrued. on the property, prior to the institution of the suit. It
may direct an inquiry as to mesne profits from the institution of the
suits until the delivery of possession of property to the decree-
holder.
The court shall pass a final decree on the basis of such suit.
This inquiry may be held by an officer of the court who must
report to the court the results of his inquiry. After this, the court
hears the parties and a final decree may be passed in respect of
mesne profits.
It is provided that when the court has passed a decree
directing an inquiry into mesne profits, the grant of mesne profits
may be from the commencement of the suit until a maximum of 3
years from the date of the decree.
Ch.11.12. Garnishee
Sn 6(4)
He is a person in whose. hands there is a debt (i.e., amount
due by him to the judgment debtor), this may be attached by the
execution order of the court. A Garnishee order is an order served
on the Garnishee, attaching a debt in his hands. The decree holder
may attach the debt.
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If the garnishee does not pay or appears and shows
cause, the court may issue execution order against him.
If there is dispute, it shall be tried and disposed off.
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If any of the defendants has already filed a suit against the
plaintiff, interpleader suit is to be stayed.
The Court may declare that the plaintiff is discharged from
liability to debts or it may retain all parties until the final disposal
of the suit. Agents and tenants may not institute interpleader suits.
The Court may provide for the costs 'of the plaintiff by
imposing charge on the things claimed.
Details of procedure are provided for in the Civil Court
Rules.
CHAPTER 12
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preferred or ii) by a non appealable decree or order of the Court, or
iii) by a decision on a reference from a Court of Small Causes-may
apply for a review of the judgment.
As the application is made to the very court, it may
reconsider and make suitable orders thereof.
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Amendment C P C 1999
"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 "
(3) A revision shall not operate as a stay of suit or other
proceeding before the Court except where such suit or other
proceeding is stayed by the High Court.".
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CHAPTER 13
APPEAL TO THE SUPREME COURT
Ch. 13 Appeal to the Supreme Court. Sn. 109 C.P.C.
Provisions are made in the C.P.C for appeals from the High
Court to the Supreme Court.
The appeal may be from any judgment decree or final order in
a Civil proceeding.
The High Court must certify . .
i) that the case involves a substantial question of law of
general importance and ii) that in its opinion the said question needs
to be decided by
the Supreme Court.
Scope:
i)This provision is subject to Art. 132 of the Constitution.
Before 1972, the position was, that the High Court had to certify
that the value of the subject matter of the dispute was not less than
Rs.20,000/-. However this requirement was omitted by the 13th
Amendment to the Constitution. Sn.109 of C.P.C. has incorporated
this amendment.
ii) Appeals are allowed only in a 'Civil proceeding'. It
means a proceeding in which there is the termination of right to
property or a Civil right.
Hence, a reference under Income Tax Act or Sales TAX Act
is not a Civil proceedings.
iii) Certificate of fitness is to be granted by the High
Court. The certificate is the leave(permission) to appeal to the
Supreme Court. Hence, if the certificate is refused, the party cannot
go in appeal. However, he may invoke the Special Leave
jurisdiction SLP of the Supreme Court under Art. 136 of the
Constitution.
iv) The value of the suit in the court of first instance to
be Rs.20,000/- is irrelevant now in view of the omission of this
requirement.
Procedure
The petition for the certificate should be made to the High
Court which shall hear and conclude within 60 days. If the
certificate is refused, the petition shall be dismissed. If certificate is
granted to the appellant, the High Court, shall require him to
58 provide security and deposit as it may determine. Thereupon the
Court may declare the case as admitted and transmit the case to the
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Supreme Court.
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CHAPTER 14
MISCELLANEOUS
Ch.14.1 Abatement of suit (0.22.RR. 1 to 9)
Abatement here means 'ceasing to exist'.
The rule in Civil proceedings is that the death of the
plaintiff or the defendant will not abate the suit if the right to sue
survives. The test is whether the right to sue survives to the Legal
representative or not.
Eg.: A suit for assault, divorce defamation etc. abates on
the death of the plaintiff or the defendant.
In Saifuddin V. Sate of Bombay A, the religious head
excommunicated B. B contested this order in a suit but died
pending the suit. The Supreme Court held that the maxim 'actio
personalis moritur cum person’a applied' ]Personal action
died with the person] and the suit abated. Similarly, a suit to
recover damages for breach of contract of marriage abates on the
death of the plaintiff.
The suit will not abate if the right to sue survives, e.g. cases
coming under Succession, breach of mercantile contracts, right to
a share in the property, tenancy right etc.
When there are two or more plaintiffs or defendants, the
death of one will not abate the suit if the right to sue survives.
The court records the death but proceeds with the case.
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subject matter of a suit then it may grant permission to withdraw the
suit.
The party is at liberty to the fresh suit. If the plaintiff
withdraws without the permission of court, he is liable for cost and
shall be precluded from instituting any fresh suit. The court should
not allow one plaintiff to withdraw, without the consent of the other
plaintiffs.
Ch. 14.3 Consent-decree or Compromise 0.23 R.3.
a) Provisions are made in the C.P.C. for compromise. In that
case, the 'consent decree' is passed by the Court.
The conditions that should be fulfilled for a consent-decree
are:
i) The Court must be satisfied that the suit has been adjusted
fully or partly by an lawful agreement or compromise in writing and
signed by the parties to the suit, or ii) The defendant must have
satisfied the plaintiff in respect of
the subject matter of the suit fully or partly.
The court records the same, and passes a decree accordingly.
b) Scope:
No consent decree is passed if the agreement or compromise
made by the parties is void or voidable.
If the parties contest the agreement, the Court decides the
question. The consent decree is not appealable .No suit will be
entertained to set aside a decree on the ground that the compromise
is not lawful.
In case of a representative suit, there shall be no compromise
without the permission of the Court.
Ch. 14.4 Compensatory Costs: Sn. 35. A
Means cost by way of compensation or damages for false or
vexatious claims and defences in a civil suit or other proceeding.
Eg.: a) Recovery of dispossessed immovable property,
b) Recovery of movables attached
c) Partition of immovable property etc. are covered
under this section.
iii) Wrongs to persons :
In respect of compensation for wrongs done to the person
or to movable property, the suit may be instituted in the place
where the plaintiff lives.
60 a) A resident of Delhi beats B when A was in Calcutta. B
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may
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sue either in the court at Delhi or Calcutta.
b) A residing in Madras/publishes a libel in Bombay,
defaming
B.B may sue either in the court at Madras or
Bombay. ,This section covers torts and
contracts, iv) Every other suit is to be
instituted:
a) in the court where the defendant resides or carries on
business.
b) in the court within whose jurisdiction, the cause of
action
arose.
A resides at Simla. B at Calcutta & C at Delhi. In Benaras
A.B & C were on a pilgrimage. B & C made a joint Promissory
Note in favour of A for Rs.5,000/-.
A may sue B & C at Benaras where the cause of action
arose. But A may sue B & C at Calcutta or at Delhi, but the non-
resident may object. The court may grant leave to sue.
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iv) To grant maintenance allowance for the ends of justice
v) To correct its own mistakes.
vi) To amend the sale certification and correct the
misdescription of the property.
vii) To punish disobedience to an order of the court,
etc.
Exceptions:
1. Inherent powers are not exercised by the Court, to
do that which is prohibited by the C.P.C. It cannot extend the
period of limitation on grounds of equity and justice. It cannot
entertain a suit which is purely on religious grounds.
2. When there are express provisions in the C.P.C., the
inherent power should not be exercised.
The court has no powers in the following:
i) to set aside an exparte decree (after the period of
limitation)
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CHAPTER 15 APPEALS
Ch. 15.1. Appeal from original decree (First appeal) Sees.
96 to 99 :
Appeal is a substantive right and not procedural.
Sn. 96 : An appeal lies from every decree passed by any court
exercising its original jurisdiction to the appellate court. This is
subject to restrictions.
1) Appeal lies from an original decree passed ex parte.
2) No appeal lies from a consent-decree
3) No appeal lies from a small causes court if value is
below Rs.3000/- except on point of law .As per C P C amendment
1999, this amount is Rs.10,000/-
4) If there is failure to appeal against a preliminary
decree, the party is barred from appealing from the final decree
passed by the court. The reason is, the preliminary decree is
conclusive so far as matters dealt with and decided by the court.
These matters form part of the final decree. In fact, it operates as Res
'judicata to the first stage.
5) Rules of procedure are made to serve the ends of
justice. Hence, mere technicalities should not defeat justice.
On these lines, Sn. 99 provides that if the error, defect or
irregularity, or non-joinder or misjoinder of parties, or cause of
action, does not affect the merits of the case, or the jurisdiction of
the court, the appellate court should not reverse or substantially
vary the decree of the lower court.
The merits of the case are affected when the error results in
error of judgment.
THE END
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Reference Section
Selected Sns and Orders
(a) in clause (a), for the words "one thousand rupees", the
words "five thousand rupees" shall be substituted; (b) for
clause (b), the following clause shall be substituted, namely:
"(b) where the decree is for the payment of a sum of money
exceeding two thousand rupees, but not exceeding five
thousand rupees, for a period not exceeding six weeks:";
(ii) in sub-section (1A), for the words "five hundred
rupees", the words "two thousand rupees" shall be
substituted.
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(2) Where a dispute has been referred—
(a) for arbitration or conciliation, the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if
the proceedings for arbitration or conciliation were referred for
settlement under the provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok
Adalat in accordance with the provisions of sub-section (1) of section
20 of the Legal Services Authority Act, 1987 1987) and all other
provisions of that Act shall apply in respect of the dispute so referred
to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a
suitable institution or person and such institution or person shall be
deemed to be a Lok Adalat and all the provisions of the Legal Services
Authority Act, 1987 (39 of 1987) shall apply as if the dispute were
referred to a Lok Adalat under the provisions of that
Act;
(1) The Court shall issue summons and deliver the same to the
plaintiff or his agent, for service, and direct the summons to be
served by registered post acknowledgement due or by speed post or
by such courier service as may be approved by the High Court or by
fax message or by Electronic Mail Service or by such other means as
the High Court may prescribe by rules, addressed to the defendant to
68 accept the service at the place where the defendant or his agent
actually and voluntarily resides or carries on business or personally
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works for gain.
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(2) The plaintiff or his agent shall send the summons by any
means as directed by the Court under sub-rule (1) within two days
from the delivery of summons to the plaintiff by the Court under that
sub-rule.
(1) The Court may, in addition to, and simultaneously with the
delivery of summons for service to the plaintiff as provided in the
manner provided in rule 9, may also direct that summons to be
served on the defendant or his agent empowered to accept the
service at the place where the defendant or his agent actually and
voluntarily resides or carries on business or personally works for gain.
(2) The summons shall, unless the Court otherwise direct, be
delivered or sent to the proper officer in such manner as may be
prescribed by the High Court to be served by him or one of his
subordinates.
(3) The proper officer may be an officer of the Court other than
that in which the suit is instituted, and where he is such an officer,
the summons may be sent to him in such manner as the Court may
direct.
(viii) in rule 24, for the words "by post or otherwise", the words
"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
Court" shall be substituted;
(ix) in rule 25, for the words "by post," the words "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 Court" shall be
substituted. :—
"(4) The person verifying the pleading shall also furnish an affidavit in
support of his pleadings.";
17. Amendment of Order VII — "9. Procedure on admitting plaint
—
(1) Where the plaint is admitted, the Court shall give to the plaintiff
summons in the name of all the defendants to be served upon or get
served in the manner provided under Order V. ) Within two days of
the receipt of summons under sub-rule (1), the plaintiff shall send or
cause to send he summons to the defendants along- with the copy of
the plaint in the manner provided under Order V.
(3) Where the Court orders that the summons be served on the
defendants in the manner provided in rule 9A of Order V, it will direct
the plaintiff to present as many copies of the plaint on plain paper as
there are defendants within two days from the date of such order
alongwith requisite fee for service of summons on the defendants.".
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(3) Where any such document or a copy thereof is not filed with
the plaint under this rule, it shall not be allowed to be received in
evidence on behalf of the plaintiff at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the
cross examination of the plaintiffs witnesses, or, handed over to a
witness merely to refresh his memory.";
18. Amendment of Order VIII — (i) for rule 1, the following rule shall
be substituted, namely:—
"1. Written statement.—The defendant shall at or before the first
hearing or within such time as the Court may permit, which shall not
be beyond thirty days from the date of service of summons on the
defendant, present a written statement of his defence."; "1A. Duty of
defendant to produce documents upon which relief is claimed or
relied upon by him.—
(1) Where the defendant bases his defence upon a document or
relies upon any document in his possession or power, in support of
his defence or claim for set off or counter claim, he shall enter such
document in a list, and shall produce it in Court when the written
statement is presented by him and shall, at the same time, deliver
the document and a copy thereof, to be filed with the written
statement.
(2) Where any such document is not in the possession or power
of the defendant, he shall, wherever possible, state in whose
possession or power it is.
"2. Dismissal of suit where summons not served by the plaintiff or his
agent or in consequences of failure to pay cost.—Where on the day
so fixed it is found that the summons has not been sent within
stipulated period of two days, to the defendant by the plaintiff or his
agent or in consequence of their failure to pay the Court-fee or any
charges, if any chargeable for such service, the Court shall make an
order that the suit be dismissed:
Provided that no such order shall be made if, notwithstanding such
failure, the defendant attends in person or by agent when he is
allowed to appear by agent on the day fixed for him to appear and
answer.";
71 O. X.1A. Direction of the Court to opt for any one mode of alternative
dispute resolution
Page After recording the admissions and denials, the Court shall direct the
parties to the suit to opt either mode of the settlement outside the
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Court as specified in sub-section (1) of section 89. On the option of
the parties, the Court shall fix the date of appearance before such
forum or authority as may be opted by the parties. 1B. Appearance
before the conciliatory forum or authority — Where a suit is referred
under rule 1A, the parties shall appear before such forum or
authority for conciliation of the suit.
1C. Appearance before the Court consequent to the failure of efforts
of conciliation —Where a suit is referred under rule 1A and the
presiding officer of conciliation forum or authority is satisfied that it
would not be proper in the interest of justice to proceed with the
matter further, then, it shall refer the matter again to the Court and
direct the parties to appear before the Court on the date fixed by it.";
.
23. Amendment of Order XIII — In the First Schedule, in Order XIII, for
rules 1 and 2, the following rule shall be substituted, namely:—
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(1) In every case, the evidence of a witness of his examination-
inchief shall be given by affidavit and copies thereof shall be supplied
to the opposite party by the party who calls him for evidence.
(2) The evidence (cross-examination and re-examination) of the
witness in attendance, whose evidence (examination-in-chief) by
affidavit has been furnished to the Court shall be taken orally by a
commissioner to be appointed by the Court from amongst the panel
of commissioners prepared for this purpose on the same day:
Provided that, in the interest of justice and for reasons to be recorded
in writing, the Court may direct that the evidence of any witness shall
be recorded by the Court in the presence and under the personal
direction and superintendence of the judge.
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Where the judgment is pronounced, copies of the judgment shall be
made available to the parties immediately after the pronouncement
of the judgment for preferring an appeal on payment of such charges
as may be specified in the rule made by the High Court."
29. Amendment of Order XXVI —
"4A. Commission for examination of any person resident within the
local limits of the jurisdiction of the Court —Notwithstanding
anything contained in these rules, any Court may, in the interest of
justice or for the expeditious disposal of the case or for any other
reason, issue commission in any suit for the examination, on
interrogatories or otherwise, of any person resident within the local
limits of its jurisdiction, and the evidence so recorded shall be read in
evidence.
30. Amendment of Order XXXIX — In the First Schedule, in Order
XXXIX, rule 1 shall be renumbered as sub-rule (1) of that rule and
after sub-rule (1) as so renumbered, the following sub-rule shall
be inserted, namely:—
"(2) The Court shall, while granting a temporary injunction to restrain
such act or to make such other order for the purposes of staying and
preventing the wasting, damaging, alienation, sale, removal or
disposition of property or dispossession of the plaintiff, or otherwise
causing injury to the plaintiff in relation to any property under
disposition in the suit under sub-rule (1) direct the plaintiff to give
security or otherwise as the Court thinks fit.".
74
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