Civil Procedure Code

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CIVIL PROCEDURE

CODE

M. S. RAMA RAO B.Sc., M.A., M.L.


Class-room live lectures edited, enlarged
and updated

Msrlawbooks
CIVIL PROCEDURE CODE
[with Amendments of 1999 & 2002]

By M. S. RAMA RAO B.Sc.,M.A.,M.L

Text and Reference Books :

Mulla Civil Procedure Code


Sarkar : Code of Civil Procedure
Mulla : Key to Indian Practice C. P. C.
1Page

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INTRODUCTION

Substantive and procedural laws are two branches of


law from jurisprudential stand-point, and the Civil
Procedure Code belongs to the latter. Civil Procedure,
in contradistinction to Criminal Procedure, deals with
the steps that the parties-plaintiff & the
defendantshould take from the time of commencement
of the Civil proceeding until its conclusion.
Amendments to CPC in 1999 and 2002 [operative from
1st July 2002] aim at meeting the problem of
inordinate delay in civil Courts. Justice delayed is
Justice denied. It is hoped that these changes help
solving the procedural delays to a great extent.
One of the remarkable features of the C.P.C. is that
each party to a dispute is provided with an equal and
fair opportunity to present his case before the Court.
The volume of the subject (Sns. 1 to 158 read with
Order 1 Rule 1 to Order 51 Rule 1), is formidable and
presents much difficulty to the student inasmuch as,
without practical exposure to the courts, he-finds
himself traversing in the strange land of imagination
and inferences. He must take active and practical steps
to learn these procedures and participate in the
mootcourts, and, attend the Civil courts ..
No amount of observing and reading literature
will convert a person a swimmer, until he gets into
water and starts his maiden-attempt! Where
accommodative advocates are available it would be
profitable to take instructions and guidelines on
procedures-forms, rules, devices governing Civil
proceedings and also to attend actively the civil courts
and make productive use of his time
MSR

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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

3. Suits against the Govt. 15


4. Indigent Person
1 Informa pauperis
2 Papuper Appeals
5. Preliminary Topics 18
1 Pleadings
a) Plaint
b) Written Statements
2 Parties to suit
4 Framing of Suit and procedure
5 Summons –issue and delivery
5 .1Recording of evidence
5a) Suit by Minor
Non appearance of parties
6 Setting aside exparte decree
.Suit dismissed for default
7. Court appoint of Guardian
8. Death of a party
9. Transfer of suit
10. "Cost follow the event"
11. Rateable distribution
12. Subsistence allowance
12.1 Out of court settlement
6. Temporary injunction 39
7. Attachment & Arrest 41
1. Grounds for attachment & . .

3Page Properties exempted


2. Arrest & Procedure to arrest
36

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

4Page 2. Second Appeals


REFERENCE SECTION 64

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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)

5Page Substituted service (v)


Representative suit (vi) Legal
Representative (vii)
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Abatement of suit (viii)
Withdrawal of the suit, (ix)
Compensatory costs.
15. What is a Plaint ? What are its contents? When is it
rejected or returned.
16. What defenses can be taken in written Statements. 17.
Detail the procedure to be followed for issue and service
of summons under C P C 1999.

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
Page

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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.

Amendments of C.P.C. 1976.


i)To avoid multiplicity of proceedings it is provided that
the District court may try the suit or transfer it to a court with
competent jurisdiction if the court finds that the case involves a
question which a court of limited jurisdiction would be
incompetent to try.
ii) Before the new C.P.C. under res judicata the
successful party was barred in respect of adverse findings of the
court. Now, it is not barred, and he may file an appeal against
such adverse findings.
iii) The doctrine is now extended to independent
proceedings
and also to execution proceedings.
Ch.2-3. Constructive res judicata.
According to Sn.ll, Explanation iv: a matter may be
actually or constructively in issue. Matters may be directly in
issue.
These are clear from the pleadings in the plaint and the
written statement. However, there may be matters 'might have
been' or 'ought to have been' made by the parties (the plaintiff in
his averment or the defendant in his written statement).
If the parties have failed in the previous suit to bring out
these, then under the rule of res judicata, the matter is deemed to
have been in issue directly and substantially, and it is also
deemed to have been heard and decided. The result is that in
such cases, the suit is barred under res Judicata.
Eg.: A sues B to recover certain property belonging to the

11 estate of C. The ground was that C & D were brothers; on the


death of C, the property came to me survivor D and that D had
Page
adopted 'A'. D, died and the property had come to B. A claimed

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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
Page

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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

SUITS AGAINST GOVT.


Ch.3 Sns 79 & 80 Suits against Government
Suits may be (i) General or (ii) of a particular kind.
In respect of suits in general it is not necessary to give
notice to the defendant before filing a civil suit. However, in
respect of suits against the Government, it is essential that notice
under Sn. 80 C.P.C. must be served. The object is to provide an
opportunity to the Govt. to reconsider the legal position, and to
amend or settle the claim without any litigation. The Central
Government shall be called the Union of India and the State
Government shall be called the State, e.g. state of Karnataka for
the purpose of serving notice. Period of notice: Two months
Notice is essential, as per sn.80
In respect of suits, against the Central Government notice
must be given to the Secretary to the Government. (If it relates to
the railway, notice must be given to the General Manager of the
railways).
In respect of suits against State the cause of action
Government notice must be given to the Secretary to that Govt.
or the Collector of the District, as the case may be.
The notice must be in writing, state the name and
description and place of residence of the plaintiff and also the
relief which he claims.
In case of a public officer, notice under Sn.80 must be
delivered to him or left at this office.
Plaint
The plaint shall contain a statement stating that notice under
Sn.80 has been so delivered or left in the office of the person so
concerned. If notice has not been so served, then the suit is to be
dismissed.
The new C.P.C. Sn.80(2) provides that when a suit to
obtain an urgent or immediate relief is to be filed then no notice
is necessary if the court so permits. The court in such
circumstances shall give the Govt. or the Officer, reasonable
opportunity of showing cause. The court also, decides whether
there is urgency or not.
No suit under Sn.80 shall be dismissed merely on technical
14 grounds of error or defect in the notice.
Page
If there is no urgency to grant relief, the Court returns the
plaint for presentation after giving notice .It must identify the
cause of action and reliefs claimed, in the notice and in the plaint.

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.

Page v) If there is a transfer of interest in the subject matter of the


proposed suit, to some other person.

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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.

Ch. 4.2.: Pauper Appeals


A pauper who is entitled to go for an appeal but who is unable
to pay the fees is allowed to appeal as a pauper subject to the same
provisions as provided above.
The court entertains the appeal if, the lower court's decision is
contrary to law usage or is erroneous or unjust.

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.

5. Intention, malice, knowledge etc., must be stated as a


fact without setting out the circumstances.
6. The pleading should be signed by the parties and his
advocates. It shall be verified at the foot to testify the sanctity of
the fact stated.
7.
Ch. 5.1.1. Plaint (0.7, R.1) CP.C.
The plaint is the foundation of the Civil Case. Before
drafting it 4 essentials are to be noted 1) Period of limitation (ii)
Pecuniary or territorial jurisdiction of the court (iii) Statutory
formalities before filing a suit (iv) Impleading all necessary parties.
Contents :
1) Headings : The name of the Court
(Space for fixing Court - fee - stamps)
2) Title : Description of Plaintiff and Defendant
3) Body : States the material facts divided into
paragraphs and numbered consecutively.
4) Relief - Claims or Amounts sued for
5) Valuation, court fee - paid
6) Jurisdiction of court, within period of limitation, etc..
18 7) List of documents, annexure
Page 8) Signature and Verification

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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

C/S/o D, aged 45, residing


at No. ........ Street ..... Place Defendant
The above named plaintiff states as follows : 1
............ .........
2......... ............
3 ..... . ...............
4. The Cause of action arose on..... ........ when the
defendant ..............
5. The defendant is resident in.. .......... and within the
jurisdiction of this Honorable court
6. The value of the subject matter of the suit for the purpose of
court fee and jurisdiction is Rs .......
7. The suit is filed within the period of limitation
8. The plaintiff claims
9.

Signature of Advocate (of the Plaintiff) Signature of Plaintiff


VERIFICATION
I, ........... (Plaintiff) ...... declare that the facts stated above in
paragraphs 1 to ....... above are true to my knowledge, information
and belief in token whereof affix my signature at ..... on the .... day
of..... (month) 2012. '

Signature of the Plaintiff

19 Affidavit: According to the new Sn 26, the C P C Amendment


Act of 1999 it is mandatory that all the facts mentioned in the
Page plaint are proved by way of an affidavit. Hence, an affidavit is
a must.
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[Sn 26(2) says In every plaint, facts shall be proved by
affidavit." ]
Summons to Defendants : Section 27 C P C provides for the
issue of summons to the defendants in a suit to appear and
answer the claim within 30 days of the institution of the suit.
Earlier, the section did not provide any time limit for the
plaintiff to serve the summons on the defendants. That resulted
in long delays.

Ch.5.1.2. WRITTEN STATEMENT


Defence available to defendant in a Civil Suit
(Essentials of W.S.)

The written statement can be conveniently divided into


following heads
1. The heading and title or formal portion
2. The body of the W.S.
.\
a) Admission and Denial part
b) Additional pleas

c) Objection in point of law


d) Special defences and avoidance
^Verifications
1. The heading and the title :
The heading of the W.S. should be the same as that of the
plaint. Then there should be the number of the suit. Title also
should be the same as that of the plaint with the difference that if
there are several plaintiffs, the name of the first plaintiff should
only, be written with the addition of words 'and another' or 'and
others'. After the title, the person on whose behalf the W.S. is
filed should be shown. In some places, the words "The defendant
states as follows" are used before the various paragraphs of the
W.S., but this is not necessary.
The rules about signature and verification of the W.S.
should be carefully observed.
Eg : In the court of .......... Munsiff, Mysore
20 O.S. No.118 of 2012
Page Kannapa and others..... ...... Plaintiffs

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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

2. The body of the W.S. a) Admissions and Denials :


The defendant should take each fact in the same order
in which it is alleged in the plaint and it should be either
admitted or denied, or when the defendant has no knowledge
of it, he may refuse to admit. General denial is not sufficient.
A denial may be total or partial. When the denial is total, i.e.,
when the defendant totally and categorically denies the
allegations in the plaint, the defence is said to be in form
"traverse".
•. . ' . ' .
i) Dilatory pleas :
. Dilatory pleas are those which merely delay trial of suit
on merits. But, pleas which go to the very root of the case
are called peremptory plea, or pleas in bar.
ii) Objection in point of Law :
It is an objection which a defendant takes to the legal
inference which is drawn by the plaintiff in his favour in the
plaint. Ordinarily this is heard and decided at the time of trial,
but the court should try that objection before proceeding with
trial of other issues, if the case (or any part there of) can be
disposed of on the decision of such objection.
iii) Special defence :
«•

Order 8, Rule 2 contains the rule : which says that the


defendant must rise, by his pleading, all matters which show
the suit not maintainable, or that the transaction is void, or
voidable in point of : law, and all such grounds of defence, as

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.

2. Pecuniary (Sns. 6 & 15) :


The civil courts have different grades to try suits of a civil
nature. Small causes courts have Jurisdiction upto a fixed amount.
However, High courts, District and Civil judge courts have
unlimited pecuniary jurisdiction.

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.

22 2. Partners' name and addresses:


Page

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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.

5.2.3. Suit by a minor : (0.32 Rl to 16)


A minor or infant is regarded by law as of immature
intelligence and discretion. Due to want of capacity and judgment,
he is disabled from binding himself, except for his,»,own benefit.
Order 32 is therefore specially made to protect the interests of
minors. These provisions apply to persons of unsound mind. The
objective is to see that a minor or unsound person is represented by
a qualified person, to act on his behalf.
Suit:
23 Every suit by a minor should be filed in his name by a "next
Page friend", "Minor" is a person who has not completed 18 years of age,

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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.

Ch. 5.3 Parties to the Suit (O.I.R. 2 to RR.23)


Joinder of parties
The four essentials of a suit are
i) Opposing parties (Plaintiff and
Defendant)
ii) Subject in dispute. iii) a cause of
24 action, and iv) a demand for relief or
Page
compensation.
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Provisions are made in the C.P.C. relating to joinder of
parties and the framing of suits.
i) Joinder of Plaintiffs:
Al! persons may be joined as plaintiffs in one suit, if the
relief claimed arises from the same act or transaction and there is
a common question of law or of fact.
Eg.: a) A publishes books in the name of The Oxford and
Cambridge Publication', misleading the public. The two
Universities may sue together as Plaintiff in one suit for an
injunction against A.
b) A & Co. issued a prospectus. X,Y and Z believed the
statements and bought shares. The statements were in fact a
misrepresentation. X,Y and Z may together sue A & Co.
If this rule is not followed it is a misjoinder of plaintiffs.
Similarly, if a party necessary to the suit is not included it
becomes non-joinder of parties.
ii) Joinder of defendants:
The rule is that all those persons may be joined as
defendants when any relief claimed by the Plaintiff, arise out of
the same act or transaction, and further, when there is any
common question of law or of fact.

Eg.: a) A, a passenger in a bus belonging to B is injured by


a •collision between the bus and a truck of C. A sues B & C for
damages for personal injury. As the transaction is the same and
there is a common question of law B & C may be sued together.
b) A & B conspire and publish a libel against C. C may sue
A
and B together.
If the above rule is not followed it may lead to misjoinder
of defendants. Misjoinder of plaintiff or misjoinder of defendants
or misjoinder of cause of action will not be fatal to the suit but,
the plaint
may be amended, and the Court may proceed further.
If a necessary party is not joined, it amounts to non-joinder of
parties.

Ch. 5.4. Framing of suit in civil Court [ As amended in 1999.]


25 i) Order 2, Rules 1 to 7 C.P.C. have provided for
Page "Frame of
suit".
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The rule is : every suit should be framed so as to afford
ground for final decision on the subjects in dispute.
The objective is to prevent further litigation. Hence, as far
as possible the framing should be complete by itself.
e.g. In a partition suit, the plaint should be so framed as to
disclose the whole partible property.[all properties to be
partitioned]

ii) The plaintiff should include the whole of his


claim, to which he is entitled as regards cause of action.
He may relinquish a part of his claim, in which case he is
estopped from claiming it (Rule 2).
Where various reliefs are available in respect of the same
cause of action he may claim for a few. If he has omitted a relief,
he cannot claim, except with the permission of the court.
iii) Joinder of causes of action : Rule 3 :
a) Plaintiff may unite several causes of action against the
same
defendant or defendants jointly.
b) Further, if plaintiffs are jointly interested in the
cause of action, they may sue jointly. iv) For
recovery of immovable property The plaintiff may
include with the leave of the court: i) mesne profits
or arrears of rent ii) damages for breach of contract
iii) claims on the same cause of action.
Exception : In a suit for foreclosure or redemption the party
may claim possession of mortgaged property.
v) Rule 7 : All objections for misjoinder of causes of action
should be taken by the defendant at the earliest time. Otherwise it is
deemed to be waiver.
Procedure:
O.IV R 1 : The plaint should be filed to the Court with a
duplicate copy.
If duly instituted, a summon is issued to the defendant to appear
and answer the claim. He should file the written statement of his
defence, if any, within thirty days from the day of institution of the
suit as may be specified therein: But no summon is issued if

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.

Ch 5.5 Issue of Summons and delivery

C P C amendment 1999 has made many changes in


respect of issue and delivery of summons. The objective
is to minimize delay and expedite the disposal of the
case.

Under rule 9 the Court may issue summons and deliver


the same to the plaintiff or his agent for service. , 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 along with requisite fee for service of
summons on the defendants.

It may direct the summons to be served by


(i) registered post acknowledgement due or
(ii) by speed post or
(iii) High Court approved Courier Service or
(iv) by fax massage or
(v) by Electronic Mail service [ email] or
(vi) by such other means as the High Court may prescribe by
rules.
The summons is addressed to the defendant, 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.

Under rule 9A the Court can , in addition to, and


simultaneously with the delivery of summons for service to the
plaintiff, direct that summons to be served on the defendant or his
agent.

Rule 14. Provides for production of document on which plaintiff


sues or relies along with the plaint.

He should prepare a list of all such documents and shall produce it


in Court with all the documents and a copy thereof, with the plaint.
27 But, if he does not file any such document or a copy, it will not be
Page admitted in his evidence. Exception:

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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

He should prepare a list of all such documents and shall produce it


in Court with all the documents and a copy thereof, with the plaint.
But, if he does not file any such document or a copy, it will not be
admitted in his evidence. Exception:
documents produced for the cross examination of the defendant’s
witnesses, or, handed over to a witness merely to refresh his
memory.

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.

Ch 5.6 Recording of Evidence Amendments


1999

One important change in the C P C amendment Act


1999 is the procedure of recording of evidence made
with a view to save the time of the Court.
Recording of evidence is conducted in the following
manner:
a) Examination in Chief of a witness shall be on affidavit;
b) The Cross Examination and Re-Examination of such a
witness will be either taken by the Court or the
Commissioner appointed by it;
c) The Court or the Commissioner will then record the
evidence in writing or mechanically in the presence of
the Judge or the Commissioner, as the case may be;
d) The Commissioner has to return the evidence along
with his report in writing to the Court;
e) The report of the Commissioner has to be submitted to
the Court within 60 days of such appointment or
within such further extended time as the Court may
28 permit for reasons to be recorded in writing;
Page f) Such evidence shall form part of the record of the suit
Written Arguments:
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In addition to this the C P C Amendment Act of 2002 has made
provisions for submission of written arguments in support of
the case by both the parties separately .This is in addition to
oral arguments with the permission of the Court.
This helps in saving the valuable time of the Court

Ch 5.6 .1 Exparte proceedings Rule 6 :

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) :

0.9, Rule 13 is wide enough to cover every application to set


aside exparte decree. The grounds are that summons was not "duly
served", defendant was prevented by "sufficient cause or reason"
from appearing, or that there was fraud in suppressing summons.
Application :
The defendant may file an application with affidavit to the
court which passed the exparte decree.
The court will make an order setting aside the decree, if
the defendant satisfies that the summons was not duly served or
he was prevented from appearing by "sufficient cause". The
court imposes such terms as to costs and fixes a day to proceed
with the case.
Limitations: ;
1. The defendant should make the application, within 30
days from the date of decree, or where the summons are not duly
served, the period is 30 days from the date of his knowledge of the
decree.
2. No decree should be set aside without notice to the
plaintiff (Rule 14).
3. If the decree is of such a nature that it cannot be set
aside as against such defendant only, it may be set aside against all
defendants.
4. Mere irregularity ir. the service of summons, is no
ground to set aside the decree, if the defendant, had notice of the
date of hearing and had sufficient time to appear.
Sufficient cause :
It is interpreted liberally to do substantial justice when there
is no negligence or inaction or want of bonafides of the defendant.
A finding by the court on sufficient cause is mandatory. Such a
cause depends on various facts and circum-stances of the case.
Effect:
The effect of setting aside the exparte decree is that the
parties are restored to the position they previously held. Hence, the
court* proceeds from that stage. If decree is not set aside, it will be
absolute and binding.
30 Revision :
Page Under Sn. 151 C.P.C. revision will lie if the conditions are
satisfied.
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5.6. Suit dismissed for default.
Refer Ch. 5.4.
5.7. Court appointment of Guardian
Refer Ch. 5.3.2.

5.8. Death of a party (Order 22 : Rules 1 to 12) :


Provisions have been made in 0.22 Rl to 12 C.P.C. to
cases of creation, transfer or devolution of interests in pending
cases. The cardinal rule is that if the right to sue survives, the
death of a party (plaintiff or defendant) does not cause the suit
to abate. The suit or

appeal can be represented by the heirs and legal representatives. If


the right to sue does not survive, the suit ends.
The general rule is that death of a party, marriage or
insolvency of a party to the suit, pending in the court, will not
abate, if the right to sue survives.

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.

Rule 4 : Death of sole defendant or one or more of several


defendants.
i) When the sole defendant dies and right survives to

31 legal
representative he may be brought on record.
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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.

iv) However, the defendant may prove his ignorance


or show sufficient cause for the delay and the court with due
regard to the ignorance of the defendant, may allow the legal
representatives to be brought on record.
Pleaders duty :
It is the duty of the pleader, appearing on behalf of the
defendant to inform the court about the death of the party. The
court gives notice to the other party and allows the legal Reps, to
be brought on record.
Marriage of female party: Rule 7 :
This will not abate the suit. Hence, it may be continued and
executed against her alone. However, if the husband is liable for
debts of his wife, the decree may be, executed against the
husband.
Insolvency Rule 8 :
Insolvency of plaintiff will not abate the suit. The official
receiver may continue but if he refuses to give security, the court on an
application made by the defendant dismiss the suit.

Ch. 5.9. Transfer of a suit (Sns. 22-25):


Sn. 22: C.P.C.: The general principle is that the plaintiff has
a right to choose his own forum. However, if the suit is one
which can be instituted in two or more courts and the plaintiff has
instituted in one of them, the defendant, may make an application
to the appellate court, to have the suit transferred to another
court. He should give notice to the plaintiff before making the
application. The time of making application is at the earliest
opportunity and before such settlement of issues.
The appellate court shall consider the objections of the
parties and examine the totality of circumstances which indicate
to the balance of convenience in favour of the applicant and
decides in which court the suit should proceed.

32 The application lies to the Appellate court, when several


Page courts are under its jurisdiction. But, if those courts are subordinate

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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

necessary directions in this regard.


A court without jurisdiction may also determine costs.
Exception :
In case the court directs that "any cost does not follow the
event" it should state its reasons.
Costs : Mean expenses incurred by the party/The object is not
to make any gain or profit to the party. It is not a bonus. They cost
in determined by the court, but is subject to the conditions and
limitations of law.
33 Cost includes incidentals e.g. arbitration referred by court.
Page Order : Order as to costs may be "costs reserved" "costs to
follow the event", "costs to abide the result" etc. The court takes
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into account the length of trial, nature of questions involved,
conduct of parties. The principle is costs follow the event.
Scope :
1. The successful party is entitled to cost if not guilty
of misconduct. For harassment exemplary costs may be levied.
2. It does not depend on who wins or loses. Many facts
shape judicial verdict.
3. Cost is not equal to what a litigant may actually
spend.
4. Costs are disallowed for misconduct or for frivolous
and vexations suits or for loss of time of the state.
5. Under Sns. 35 A, compensatory costs for vexations
or false claims may be ordered to be paid to the objector who has
put forward his defence. The maximum is Rs.3000/-

Ch. 5.10. Rateable distribution Sn. 73 C.P.C

Sn. 73 C.P.C. provides for rateable distribution, among


decreeholders of the assets of the judgement debtor, held by the
court.
Earlier the rule was "first come, first serve, and this had led to

malpractices and scrambles. To put an end to this, Sn. 73 was


made to place all decree-holders on equal footing.
The objects are (1) to prevent multiple execution proceedings
and (2) to secure equitable distribution of assets. This section
provides for a cheap and speedy mode of execution. It is a rule of
procedure.
Essentials:
The essential conditions are as follows :
i) The assets of judgement - debtor (J.D.) must be
held by the
court i.e., attached by the court.
ii)The decrees obtained by two or more decree
holders, should
be money-decrees and should be against the same J.D.
iii) The claimant must have applied for
execution to the same court and before the court received
34 the assets. He should not have obtained satisfaction of his
Page decree.

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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.

Of course, such a mortgagee or holder of charge, may


waive and agree for reteable distribution with other decree-
holders.
Revision :
The High Court has powers of revision when the lower
court has no jurisdiction or distribution is wrong.

Ch. 5.11. Subsistence allowance:

0.21, R. 39 21 has provided for execution of decrees or orders.


Provisions have been made in Rules 37 to 39, for the arrest
and detention of the judgment-debtor (J.D.) in execution
proceedings against him, before the execution court,

On an application with affidavit filed by the decree-holder,


the court instead of issuing a warrant for arrest, issue a notice to
the J.D, to show cause why he should not be committed to the
civil prison Notice is not necessary if the J.D. is making plans to
35 abscond etc.
Page
The court on inquiry may release the J.D. on security or
detain in custody of officer of the court.
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If warrant of arrest is issued, it is addressed to an officer
appointed by the judge and specifies the amount to be paid by the
J.D. and is signed by the judge.
No arrest is to be made if the amount is specified.
Otherwise, the officer may arrest the J.D. and bring him before
the court "with all convenient speed".
Condition to deposit subsistence allowance :
One strict rule is that the decree-holder should make the
deposit of amounts as the judge thinks sufficient for the
subsistence of the J.D. until the JD is brought before the court.
However, if the JD is committed to the civil prison, the
court fixes the monthly allowance, as per prescribed scales. The
decreeholder should deposit in advance in full on the first of
every month. If not paid the JD will be released.
Such amounts are deemed costs in the suit.

Ch 5.12 Out of Court Settlement or Alternate Dispute


Resolution

One important change made by the C.P.C. is in introducing


alternate Dispute Resolution [ Sn 89.] This is taken from the
United States where it has been a success thereby reducing the
delay in civil litigations.
Civil Courts are given the power to refer the disputes to:
a) Arbitration;
b) Conciliation;
c) Judicial settlement including settlement through Lok
Adalat; or
d) Mediation.
a)In case the Court prefers arbitration, it invokes the
provisions of the Arbitration and Conciliation Act and advices
the parties to settle as per the Act.
b) In case the Court finds the conciliation is suitable,it will
refer the two parties to Lok Adalat, in which case Sn 20 (1) of
the Legal Services Authority Act, 1987 and all other relevant
provisions will apply .

36 c) In case the Court thinks that Judicial settlement is


suitable, it may refer to an institution or person and such
Page institution or person shall be deemed to be a Lok Adalat and all

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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 —

After recording the admissions and denials, the Court shall


direct the parties to the suit to opt either mode of the settlement
outside the 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 .

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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

attempting to sell trust property in violation of the trust deed. A

may sue for an injunction.

iii) X pollutes the air with smoke and gas and interferes
with the
physical comfort of the neighbours. Y may sue for an injunction.

38 The court in its discretion may grant a temporary injunction,


for the purpose of preventing waste, or dispossession or injury etc.
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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.
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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.

iv) Stipends and gratuities and political pensions.

v) Wages of laborers and domestic servants payable


in kind or
in money.
vi) Salary to the first Rs.400/- and two thirds of the
remainder, vii) A right to future maintenance etc. as per
Sn.60 of C.P.C.
viii) Houses and buildings belonging to agriculturist, laborer
or
a domestic servant, ix) L.I.C. Policies, Provident
Fund Contributions.
Where the property is immovable the attachment shall be
made by an order prohibiting the judgment-debtor from
transferring or charging the property in anyway. All persons are
prohibited from taking any benefit from such transfer or charge..
The order shall be proclaimed at some place on the property
or adjacent to the property by beat of drum or other customary
mode. A copy of the order shall be affixed on a conspicuous part
of the property or of the Court house (or in the office of the
collector if it is land).
Ch.7.2 Arrest before Judgment
A plaintiff in a suit may at any stage of the suit pray for the
arrest of the deft before judgment or for the attachment of
property before judgment.
He must make an application after the plaint is admitted. It
is not just to arrest a person or attach his property before a decree.
40 But, in only certain specified cases such an action is allowed.
. Order 38 Rules 1 to 4 provide for arrest before judgment.
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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.

ii) has disposed of his property or has removed from


the local limits, or iii) he is about to leave India, the court may issue
a warrant to arrest the deft, and to bring him before the court. The
court may ask him to furnish security for his appearance.
The Warrant should specify the amounts claimed by the
plaintiff. If the amount is paid, the deft, should not be arrested. If not
so paid the court may ask him to deposit sufficient money or
property or to furnish security for his appearance. If he fails to do so,
he may he committed to the civil prison. He should not be detained
for more than 6 months. If the value of the subject matter is below
Rs.50/- he should not be arrested for more than 6 weeks.
Attachment before judgment
If the deft is about to dispose of the property or to remove it
from the local jurisdiction, with a view to delaying or obstruting the
execution of a decree, then the court may direct the deft, to furnish
security. The court may order for conditional attachment of the said
property..
Compensation: If the arrest before judgments or attachment is
made on insufficient grounds the court may award upto
Rs.1,000/compensation to the deft. The plaintiff should pay this
compensation.
CHAPTER 8 COMMISSIONS
Ch.8 Commissions (Order 26 Rules 1 to 22.)
The C.P.C. has provided for the appointment of a
commission for the examination of a resident, within its
jurisdiction, if that person is (i) exempted from attending the
Court or is proved to be (ii) sick and infirm.
The persons who are exempted are:
i) Persons resident outside the jurisdiction or who is about
to
go outside.
ii) Govt. officers who are in service and who cannot attend
with-
41 out detriment to public interest.
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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

Attendance, Summoning: The Commission is considered as


a Civil Court, and is empowered to exercise its power as in C.P.C.
(Of course, no penalties can be imposed.)
Returning of Commission: The court fixes the time within
which the Commission should return. It should submit its report to
the court with the evidence collected, depositions, documents etc.
Evidentiary Value: The evidence taken under a Commission
should not be read as evidence without the consent of the other
party, subject to certain exceptions.
When the commission submits its returns, it is dissolved,
and, ceases to have any power.
CHAPTER 9 RECEIVER
Ch. 9 Receiver (Order 40 C.P.C.)
There may arise a circumstance where the court may have to
appoint some person to look after the property of a person. Such
an appointed person is a 'RECEIVER'. If it appears to the court
to be just and convenient, it may appoint a receiver of any
property and hand it over to his possession and management. This
may be done at any stage of the suit.
Such a receiver has the power conferred by the Court: i)
He may file suits and defend suits, ii) He may realise,
protect and manage the property, iii) He may collect
42 rents and apply them.
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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

interested in the suit. He is not an agent of any party. In respect of


land paying revenue, the collector may be appointed as the
receive/. A Receiver duly appointed should i) furnish security, ii)
submit his accounts duly, iii) make payments, iv) be responsible
for losses, if any, resulting from his wilful
default or gross negligence.
Failure
If the receiver fails to discharge his duties e.g., fails to
submit his accounts or make payments or causes wilful loss, the
court may direct to ' attach the property of the receiver and may
sell such property and apply, the proceed to make good the loss
thereof.
CHAPTER 10 JUDGMENT, DECREE AND
ORDER
Ch.10.1 Judgment and decree.
Judgment means the statement of the grounds of decree or
order, given by a judge. The judgment contains:
i) A concise statement of the
case, ii) The points for
43 determination, iii) The decision
Page thereon, and iv) The reason for-
such decision.
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Decree: After the judgment is pronounced, the successful
party may apply to the court to draw up the decree. It is then
drawn up by the officer of the court. It should contain:
i)The number of the suit.
ii) The names and description of parties.
iii) The relief granted or other determinations such as
that the suit is dismissed.
iv) The particulars of the claim.
The decree must correspond with the judgment. The court
may correct clerical arithmetical errors or accidental slips.
Decree may be preliminary or final. The preliminary decree
is passed in suits such as dissolution of partnership, suits for
presumption, administration suits etc.
In the case of dissolution of partnership, the preliminary
decree, may declare the proportional shares and may direct that
accounts are to be taken. The suit is adjourned to a later date for
passing a final decree. After accounts are taken and the amounts
of share determined the court passes the final decree.Appeal is
allowed from the preliminary decree.
Form of Decree
Name of the Court ...........................
(Title of the suit etc) No ............
Claim for specific performance of an agreement dated,
20-1-2010 and in the alternative for damages for Rs.5,000/-
The suit coming on this day for final disposal before .........
the name of the judge ............ in the presence of Sri .............
Advocate for plaintiff and of Sri ..............advocate for the
defendant, it is declared. that the plaintiff is not entitled to
specific performance, of the said agreement, and it is ordered and
decreed that the deft, do pay Rs.5,000/- to the plaintiff as and for
damages for the breach of contract referred to above, and,
Rs ............. on account of costs of this suit with interest thereon
at the rate of 6% per annum from this date to the date of
realisation.
Given under my hand and seal of the Court on this 15th day of
January 2012

44 Judge
Page

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.

Ch 11.6 Next friend 0.32. R.1


A minor has no legal capacity to sue or be sued. Hence, it
is necessary that his interest should be protected and the C.P.C.
provides for a Next friend to act and file or defend him. But, the
Next friend is not a party to the suit.
The title of the suit will be put as A, a minor by his Next
friend B versus C & D. No suit will be entertained by or against
a minor without a next friend. (The court may ask the 'next
friend' to furnish security for expenses of the suit.)
Any person of sound mind and who has attained majority
may act as a 'next friend'. Such a person should not have any
adverse interest to that of the minor.
The next friend may be removed when he does not do his
duty or acts adverse to the interests of the minor.

Ch. 11.7 Legal Representative Sn.2(ll).C.P.C


Means a person who represents in law the estate of the
48 deceased person It includes i) any person who intermeddles with
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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.

Ch. 11.8 Interrogatories 0.11 R.1 to 8


Discovery by interrogation : Any person to suit is entitled
to elicit and know the nature of his opponents case and also to
know before-hand what case he has to meet at the hearing. A
plaint or a written statement of the case may not sufficiently
disclose the nature of a case. To make good the deficiencies,
either party may administer interrogatories, in writing to the
other, through the court. The party to whom interrogatories are
administered must answer them in writing and an oath.
Interrogatories(questions) are allowed:
i) to know the nature of the case or the material facts.
ii) to support one's case by getting admissions or
impeaching
the opposite party's evidence.
e.g. A sues B for i) breach of contract & ii) for damages. A
must prove the i) Contract and ii) the breach. B may administer
interrogatories to A to obtain admissions to prove his own case.
But, B cannot put questions to know evidence A has to prove his
case.
Interrogatories not allowed:
Matters which are of:
i) Evidentiary value and which are of a
ii) Confidential nature between the opponent and his
Advocate, and

iii) Matters injurious to public interest-

Procedure: The party must make an application to the Court


in the pro forma for permission to deliver the interrogatories. The
court shall consider and grant the permission. The opposite party
shall answer them by affidavit in 10 days, in the pro forma.
50 However, it may take objections if the questions are irrelevant, not
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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.

Ch. 11.9 Foreign judgment. Sns 13 & 14


Foreign judgment is defined as the judgment given by the
Foreign Court i.e. a court situated beyond the territorial limits of
India and which is not established or continued by the President of
India. The rule is that a foreign judgment operates as a Res judicata
between the parties except in the following cases ;
i) The Courts in India will not give effect to a foreign
judgment
pronounced by a court without jurisdiction.
The leading case is Gurdayal V. Raja of Faridkot (1895).
A sued B in the Faridkot court to recover Rs.60,000/-
misappropriated by B, when B was in A's services. B did not
appear and hence an ex parte decree was passed. At the time of the
suit B was not residing in Faridkot and had no domicile of that
place. Thereupon, A sued B in British Indian Courts. Held,
Faridkot Court's decree was a foreign judgment. As B had no
residence or domicile and was not even present there the foreign
decree was without jurisdiction and hence, would not be followed
in India.
ii) The foreign judgment must have been given on the merits
of the case. The Indian courts have a right to examine the merits.
iii) If the Indian court finds that the foreign judgment appears on
the face of the record to be an incorrect view of International
Law or Indian Law, it may refuse to follow that decision.
iv) If the foreign judgment is given in violation of the

principles of Natural Justice, the Indian courts may refuse to

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 :

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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.

Ch. 11.10 Public Nuisance : Sn. 91


It is an unauthorised act or omission which causes any
common danger, injury or annoyance to the public or to the
people in general who live in the vicinity.

Under Section 91, the Advocate General or two or more


persons who have obtained the leave of the court, may institute a
suit. There may not be any special damage caused by such
public nuisance. But the plaintiff may pray for declaration or
injunction or for such other reliefs as may be appropriate under
the circumstances of the case.
Institution of a suit under this section will not limit any
other remedy provided elsewhere i.e., criminal prosecution or
suit for tortious liability.
Eg.: A keeps his horses and wagons standing for an
unreasonable time on the highway causing public nuisance.
Here the advocate-general, or 2 or more persons with
the permission of the court may file a suit against, A praying the
court:
i) For abatement of nuisance and injunction, ii)
Restraining him from continuing the nuisance.
This remedy is available is respect of Public Nuisance or any
wrongful act affecting the public at large.

Ch. 11.11 Mesne Profits

Sn.2(12) C.P.C. defines mesne profit. It means those profits


which a person in wrongful possession of some property actually
received or might have received with ordinary diligence, together
with interest on such profits. However, it shall not include profits
due to improvements made by the person in wrongful possession.
0.20 R.12 provides for the recovery of the immovable
52 property and the mesne profits.
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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.

Eg.: P is the decree-holder [D H] for Rs.2,00,000/-against

the defendant, judgment- debtor.[ J.D.]

G owes Rs.200,000/- to D. P may ask court to give a

Garnishee order to attach Rs.200,000/- due from G

G is the granishee. He may pay the amounts to P. P may give

a discharge for payment of moneys thereof.


Judgment debtor DH, has Rs. 1,50,000/- in SB account in
HDFC Bank. The Court may issue a garnishee order to the .Bank
to attach the account.
The Court may issue notice to the garnishee to pay such
amount to the Court.
When the amount is so paid, the Court directs that the
53 amount may be paid to the decree-holder.
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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.

Ch.11.13. Precept: Sn.46.


On the application made by the decree-holder the court
which passed the decree may in suitable cases issue a precept to
any court competent to execute such decree, to attach any
property belonging to the judgment-debtor mentioned in the
precept.
That court which receives the precept shall attach the prop in
the prescribed manner provided for attachment.
No such attachment can continue for more than two months.
But the court may extend the period. However if the decree has
transferred to this Court and the decree-holder has applied for:
order of sale, the precept stands good.
Ch.11.14 Inter Pleader Suit (S.88, 0.35 R. 1 to 6)
*.

When two or more persons Dl, D2, D3 and D4 claim adverse


to one another, the same debt, sum of money or other property in
movable or immovable from another person P who claims no
interest therein, and who is ready to pay or deliver it to the rightful
claim P may institute an inter pleader suit against all the claimants
for purpose of obtaining a decision as to the person to whom
payment or delivery shall be made and of obtaining indemnity for
himself.
If there is already a suit pending no such suit shall be
instituted. In the plaint the plaintiff should make the following
allegations:
i) No interest is to be claimed by the plaintiff in the subject
matter of the suit.
ii) Claims area made by the defendants severally.
iii) There is no collusion between the plaintiff and any of the
defendants.
iv) Things claimed to be paid or placed in the custody of the
court, must be specified. (subject matter).
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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

REFERENCE, REVIEW & REVISION

Ch.12.1 Reference Sn 113


Any court below the High Court may state a case and refer
the same for the opinion of the High Court and the latter may
make such order thereon as it thinks fit. This is called reference.
If the lower court is satisfied that the case before it, involves a
question challenging the validity of any Act, Ordinance
or
Regulation (or any provision thereof) and that there is no decision
of that High Court or the Supreme Court on that, it may set-out its
reasons and opinion and refer the same for the opinion of the High
Court.
The reference can be made only when the lower court has a
'doubt' on the question. The object is to get the questions speedily
decided by the High Court. This saves much time of the parties
which would have otherwise moved a writ challenging the Statute
under Art.226 and 227 of the Constitution. Provisions have been
made in the Civil Court Rules, relating to how the references are
to be made.

Ch 12.2 Review Sn.114 C.P.C.


To review is to re-consider. Provisions are made in the
C.P.C for a review of a decision by the very court which passed
the decree or made the order.
Any party to a suit, who considers himself aggrieved

55 i) by a decree or appealable order of a court-but no appeal is


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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.

. 12.3 Revision Sn.115


This is called Revisional Jurisdiction of the High Court. A
large number of cases come under this section. However certain
conditions are to be fulfilled. I. The lower court should have
i) acted in excess of its jurisdiction. ,
ii) failed to exercise its jurisdiction.
iii) acted illegally or with material irregularity. This refers to
errors of jurisdiction.
II. The lower court's decision must be non-appealable.
In such a case on an application by the applicant for revision,
the High Court calls for the records of the lower court, and makes
such orders as it thinks fit.
Scope
The Revisional Jurisdiction is discretionary in character.
Hence, even if the above conditions are satisfied the Court may not
interfere. It is only when there is a substantial failure of justice to a
party that it interferes.
It has powers to vary or reverse any order made by the lower
court. The test is, if the order is allowed as it is, it should cause
injustice and irreparable loss to the party.
There is no Revisional Jurisdiction of a decree or order
against which there is a regular appeal under C.P.C.
The High Court will not enter into the merits of the case but
it examines whether the requirements of law have been duly
fulfilled by the lower court.
The irregularity must be of such a nature as to justify an
interference to prevent any gross miscarriage of justice. The Court
56 will not interfere on mere technical grounds.
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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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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.

Exception : A new provision is made under C.P.C. If the


case has been fully heard and concluded but reserved for
judgment then the suit will not abate but will be operative even
if death takes place in the meanwhile.
Scope :
If the suit abates, no fresh suit be brought on the same
cause of action. It is barred by Res Judicata.

Ch. 14.2 Withdrawal of a Suit. 0.23 R.1

At any time after the institution of a suit, the Plaintiff may


as against all or any of the defendants withdraw his suit or abandon
part of his claim. When the Court is satisfied that a suit must fail by
59 reason of some formal defect, or, that there are other sufficient
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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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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.

Ch. 14.9 Inherent powers of the Court: Sn. 151. C P C


The Court has inherent powers to make such orders as may be
necessary for the ends of justice or to prevent any abuse of the
process of the court.
The C.P.C. does not limit or affect this inherent power of the
court (Sn.151)
As the Supreme Court has stated ? this inherent power has not
been conferred on the Court by the C.P.C.
It is a power inherent in the court itself, by virtue of its
duty to do justice between the parties before it.
The C.P.C. is not exhaustive: and, hence, where the
circumstances demand, the court may act upon the assumption of its
inherent power in the interests of justice.
When there are no express provisions in the C.P.C., the
court resorts to its inherent powers.
Illustrations:
i) To order joint trails or suits, ii) To allow a defence to the
61 indigent person, iii) To apply the principles of Res Judicata outside
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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)

ii) to restore an election petition dismissed for default/


iii) to substitute the legal representative after signing the
judgment.

Inherent powers to amend decrees or orders.


The court has inherent powers to vary or amend its own
decree -«£, order so as to carry out its own, meaning, when the
decree or order does not correctly state what the court actually
decided or intended.
eg. (1) A sues B for Rs.20,000/- and interest. The judgment
was given for Rs.12,000/- in all. The decree is drawn accordingly.
A applies to amend the decree to include interest. The court refuses
the amendment, as its decree is according to its judgment.
(2) In a case, the judgment did not award costs, but in drawing
up the decree, costs had been awarded. The court has powers to
amend so as to carry out its judgment.

General Powers to amend.


Sn. 153 provides that the court may at any time amend any
defect or error in any proceeding in a suit for the purpose of
62 determining the real question or issue before the Court.
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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.

Ch. 15.2. Second Appeals:


The right of appeal is a substantial right and is provided in
C.P.C. as a statutory right in Sns. 100 to 102.
Sn. 100 provides for appeal to the High Court from every
decree passed by the appellate court, if the High Court is satisfied
that the case involves a substantial question of law. This rule is
subject to the other provisions of C.P.C. and other law for the time
being in force.
Appeal lies from an ex parte appellate decree.
Procedure:

64 The memorandum of appeal should precisely state the


substantial question of law.
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If satisfied, the court formulates that question of law. The
appeal is heard by the High Court on that question and the
respondent is allowed to argue that there is no question of law.
The court has powers to hear on any other substantial question
of law if it so desires,
Sn. 100 A provides that if heard by a single judge and decided,
.C P C 1999 provides "100A. No further appeal in certain cases
— ……
(a) where any appeal from an original or appellate decree or
order is heard and decided,
(b) where any writ, direction or order is issued or made on an
application under article 226 or article 227 of the Constitution, by
a single Judge of High Court, no further appeal shall lie from the
judgment, decision or order of such Single
Judge
.
Scope :
.
Whether a particular question is substantial or not, depends on
the facts and circumstances of each case.
Amendment:
"102. No second appeal in certain cases —
No second appeal shall lie from any decree, when the amount or
value of the subject-matter of the original suit does not exceed
twenty-five thousand rupees.".

If the findings of the trial court are unsound, perverse,


findings based on material inconsistencies or inaccuracies - the
High Court will interfere. However, the court will not interfere
merely on the ground of gross or erroneous finding of fact or a
finding based on some documentary evidence.
It will admit or reject. There is no partial admission.

THE END

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Reference Section
Selected Sns and Orders

CIVIL PROCEDURE CODE (AMENDMENT) Act, 1999

2. Amendment of section 26 — In the Code of Civil Procedure, 1908


(5 of 1908) (hereinafter referred to as the principal Act), existing
section 26 shall be re-numbered as sub-section (1), and after
subsection (1) as so renumbered, the following sub-section shall be
inserted, namely:
"(2) In every plaint, facts shall be proved by affidavit." 3.
Amendment of section 27 the following words shall be inserted at
the end, namely:
"on such day not beyond thirty days from date of the
institution of the suit".
4. Amendment of section 32 — In section 32 of the principal Act, in
clause (c) for the words "not exceeding five hundred rupees" the
words "not exceeding five thousand rupees" shall be substituted.
5. Amendment of section 58 (i) in sub-section (1),—

(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.

6. Amendment of section 60 in the first proviso to sub-section (1), in


clause (i), for the words "four hundred rupees", the words "one
thousand rupees" shall be substituted.
7. Insertion of new section 89 In the principal Act, after section 88,
the following section shall be inserted, namely:—

"89. Settlement of disputes outside the Court —

(1) Where it appears to the Court that there exist elements of a


settlement which may be acceptable to the parties, the Court shall
formulate the terms of settlement and give them to the parties for
their observations and after receiving the observations of the parties,
the Court may reformulate the terms of a possible settlement and
refer the same for (a) arbitration; (b) conciliation; (c) judicial
settlement including settlement through Lok Adalat; or (d) mediation.
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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;

(d) for mediation, the Court shall effect a compromise between


the parties and shall follow such procedure as may be prescribed.".

8. Amendment of Section 95 in sub-section (1), for the words


"not exceeding one thousand rupees", the words "not exceeding fifty
thousand rupees" shall be substituted.
9. Amendment of Section 96 in sub-section (4), for the words
"three thousand rupees", the words "ten thousand rupees" shall be
substituted.
10. Substitution of new section for Section 100A For section
100A of the principal Act, the following section shall be substituted,
namely:—
"100A. No further appeal in certain cases — Notwithstanding
anything contained in any Letters Patent for any High Court or in any
other instrument having the force of law or in any other law for the
time being in force,
(a) where any appeal from an original or appellate decree or
order is heard and decided,
(b) where any writ, direction or order is issued or made on an
application under article 226 or article 227 of the Constitution, by a
single Judge of High Court, no further appeal shall lie from the
judgment, decision or order of such Single Judge.".
11. Substitution of new section for section 102 the following
section shall be substituted, namely:—
"102. No second appeal in certain cases — No second appeal shall lie
from any decree, when the amount or value of the subjectmatter of
the original suit does not exceed twenty-five thousand rupees.".
12. Amendment of section 115 in sub-section (1)(i) for the

67 proviso, the following proviso shall be substituted, namely:—


"Provided that the High Court shall not, under this section, vary or
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of a suit or other proceeding, except where the order, if it had been
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made in favour of the party applying for revision, would have finally
disposed of the suit or other proceedings.";
(ii) after sub-section (2), but before the Explanation, the following
sub-section shall be inserted, namely:— "(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.".
13. Amendment of section 148 — , after the words "such period",
the words "not exceeding thirty days in total," shall be inserted.

CHAPTER III - Amendment of Orders

14. Amendment of Order IV —

In the First Schedule to the principal Act (hereinafter referred to as


the First Schedule), in Order IV, in rule 1,— (i) in sub-rule (1), for the
words "plaint to the Court", the words "plaint in duplicate to the
Court" shall be substituted;
(ii) after sub-rule (2), the following sub-rule shall be inserted, namely:
"(3) The plaint shall not be deemed to be duly instituted unless it
complies with the requirements specified in sub-rules (1) and (2).".
15. Amendment of Order V — (i) in rule 1, for sub-rule (1), the
following shall be substituted, namely:—
"(1) When a suit has been duly instituted, a summon may be issued to
the defendant to appear and answer the claim and to file the written
statement of his defence, if any, on such day within thirty days from
the day of institution of the suit as may be specified therein:
Provided that no such summons shall be issued when a
defendant has appeared at the presentation of the plaint and
admitted the plaintiff's claim:
Provided further that where the defendant fails to file the
written statement on the said day, he shall be allowed to file the
same on such other day which shall not be beyond thirty days from
the date of service of summons on the defendant, as the Court may
think fit.";
(ii) for rule 2, the following shall be substituted, namely:—
"2. Copy of plaint annexed to summons.— Every summon shall be
accompanied by a copy of the plaint.";
"9. Delivery of summons to the plaintiff or his agent —

(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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(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.

(3) When an acknowledgement or any other receipt purporting


to be signed by the defendant or his agent received by the Court or
postal article containing the summons is received back by the Court
with an endorsement purporting to have been made by a postal
employee or by any authorised person to the effect that the
defendant or his agent had refused to take delivery of the postal
article containing the summons or refused to accept the summons by
any other means specified in sub-rule (1), when tendered or
transmitted to him the Court issuing the summons shall declare that
the summons had been duly served on the defendant:

Provided that summons was properly addressed, pre-paid


and duly sent by registered post acknowledgement due, the
declaration referred to in this sub-rule shall be made notwithstanding
the fact that the acknowledgement having been lost or misled or for
any other reasons has not been received by the
Court on the date fixed by it."

9A. Simultaneous issue of summons for service by the Court


controlled process.—

(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.

(4) The proper officer may serve the summons by registered


post acknowledgement due, by speed post, by such courier service as
may be approved by the High Court, by fax message, by Electronic
69 Mail service or by such other means as may be provided by the
rules made by the High Court."; (vi)
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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;

(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.".

"14. Production of document on which plaintiff sues or relies —

(1) Where a plaintiff sues upon a document or relies upon


document in his possession or power in support of his claim, he shall
enter such documents in a list, and shall produce it in Court when the
plaint is presented by him and shall, at the same time deliver the
document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power

70 of the plaintiff, he shall, wherever possible, state in whose possession


or power it is.
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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.

(3) Where a document or a copy thereof is not filed with the


written statement under this rule, it shall not be allowed to be
received in evidence on behalf of the defendant at the hearing of the
suit.
(4) Nothing in this rule shall apply to documents— (a) produced
for the cross-examination of the plaintiff's witnesses, or (b) handed
over to a witness merely to refresh his memory.";

"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:—

"1. Original documents to be produced at or before the settlement of


issues —
(1) The parties or their pleader shall produce on or before the
settlement of issues, all the documentary evidence in original
where the copies thereof have been filed along with plaint or
written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list
thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of
the other party; or (b) handed over to a witness merely to refresh his
memory.".

24. Amendment of Order XIV —


(i) in rule 4, for the words "may adjourn the framing of the issues to a
future day", the words "may adjourn the framing of issues to a day
not later than seven days" shall be substituted.

26. Amendment of Order XVII.—


(i) for sub-rule (1), the following shall be substituted, namely:—
"(1) The Court may, if sufficient cause is shown, at any stage of the
suit, grant time to the parties or to any of them, and may from time
to time adjourn the hearing of the suit for reasons to be recorded in
writing:
Provided that no such adjournment shall be granted more than
three times to a party during hearing of the suit.";

"4. Recording of evidence by commissioner—


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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.

(3) The commissioner shall be paid such sum for recording of


evidence as may be prescribed by the High Court.
(4) The amount payable to the commissioner under sub-rule (3)
shall be paid by the Court or by the parties summoning the witness as
may be prescribed by the High Court.
(5) The District Judge shall prepare a panel of commissioners to
record the evidence under this rule.
(6) The commissioner shall record evidence either in writing or
mechanically in his presence and shall make a memorandum which
shall be signed by him and the witnesses and submit the same to the
Court appointing such commissioner.
(7) Where any question put to a witness is objected by a party
or his pleader and the commissioner allows the same to be put, the
commissioner shall take down the question together with his
decision.";

"19. Power to get statements recorded on commission —


Notwithstanding anything contained in these rules, the Court may,
instead of examining witnesses in open Court, direct their statements
to be recorded on commission under rule 4A of Order
XXVI.".

"6A. Preparation of decree.—(1) Every endeavour shall be made to


ensure that the decree is drawn up as expeditiously as possible and,
in any case, within fifteen days from the date on which the judgment
is pronounced.

(2) An appeal may be preferred against the decree without filing a


copy of the decree and in such a case the copy made available to the
party by the Court shall for the purposes of rule 1 of Order XLI be
treated as the decree. But as soon as the decree is drawn, the
judgment shall cease to have the effect of a decree for the purposes

73 of execution or for any other purpose.


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6B. Copies of judgments when to be made available.—

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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.".

"9. Registry of memorandum of appeal —(1) The Court from whose


decree an appeal lies shall entertain the memorandum of appeal and
shall endorse thereon the date of presentation and shall register the
appeal in a book of appeal kept for that purpose. THE END

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