Civil Procedure CodeFrequently Asked Questions on Civil Procedure Code
"We must always remember that procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, though procedural, will thwart fair hearing or prejudice doing can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities."History of Code Before 1859 there was no uniform Code of Civil Procedure. There were different systems of Civil Procedure in different parts of the country. First Uniform Code of Civil Procedure was enacted in year 1959. But that code was not made applicable to Supreme Court in the Presidency Towns and to Presidency Small Cause Courts. Some amendments were made therein and the code was applied to whole of British India, but there were many defects in it and therefore a new code was enacted in 1877. Latter Law Commission in its various reports made many recommendations for fair trial in due compliance of acceptance of principles of natural justice and for expediting the disposal of suits and also avoiding undue complicated procedure in disposal of suit. Keeping in view the above said broad principles, in the year 1908, present Code of Civil Procedure was enacted. Then in year 1976, some important amendments were made in the code which are following :-
(a) The doctrine of "res-judicata" was made more effective.
(b) The powers to transfer proceedings from one High Court to another was given to Supreme Court.
(c) Freedom from attachment of portion of salary to all salaried employees is granted.
(d) The provision of giving notice under section 80 before institution of suit against the Government or a Public Officer was made less stringent.
(e) The scope of Summary Trials was widened.
(f) Important changes were made to provide relief to poor section of the community.Important Amendments of Act of 2002 Act No. 22 of 2002 has been passed for amendments of Code of Civil Procedure so as to expedite the disposal of suits and to avoid time consuming complicated procedural formalities. Some of the important amendments are :-
(i) Section 100-A has been added which provides that notwithstanding anything contained in any Letters Patents for any High Court or in any instrument having force of law or any other law, where any appeal from a original or appellate decree or order is heard and decided by single Judge of a High Court no further appeal shall lie from judgment and decree of such single judge.
(ii) Section 102 has been amended and which has permitted the filing of second appeal if subject matter of suit for recovery of money is not exceeding Rs. 2,500/-.
(iii) Amendment made in Order VII and it is made obligatory for defendant to present his written statement within 30 days from date of service of summons to him. If he fails to do so, court may, for reasons to be recorded, allow him to present written statement on any other date but not later than 90 days from date of service of summons.
(iv) Amendment in Order V of Code is made and provisions of service of summon through duly approved courier service or by fax message or electronic mail, are made.
(v) Amendment is made in Order VI Rule 17 and now no application for amendment of pleadings shall be allowed after the trial has commenced unless court has came to conclusion that inspite of due diligence, party could not have raised the matter before the commencement of trial.
(vi) Amendment is made in Order XVIII and provision has been made in Rule 4 for recording the examination in chief of witnesses in a suit by affidavit, copies of which will be supplied to opposite party.
(a) any adjudication from which an appeal lies as an appeal from an Order.
(b) an order of dismissal for defaultExplanation : Decree is preliminary when further proceeding have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly ESSENTIAL ELEMENTS
(i) There must be adjudication.
(ii) Such adjudication must have been given in a suit.
(iii) It must have determined the rights of parties with regard to all or any of the matters in controversy in suit.
(iv) Such determination must be of conclusive nature.
(v) There must be a formal expression of such adjudication.CLASSES OF DECREE Primarily there are two kinds of Decree :
(i) Preliminary Decree
(ii) Final DecreePRELIMINARY DECREE : Where an adjudication decides the rights of the parties with regard to all or any of matter in controversy in suit but does not completely dispose of the suit. It is a preliminary decree. Explanation added to Section 2(2) also says "Decree is preliminary when further proceedings have to be take before the suit can be completely disposed of". CPC provides for passing preliminary decree in following cases:
(1) Suit for possession and mesne profit (O. 20 R. 12)
(2) Administration Suit (O. 20 R. 13)
(3) Suit for Pre-emption (O. 20 R. 14)
(4) Suit for Dissolution of Partnership Firm (O. 20 R. 15)
(5) Suit for Accounts between Principal and Agent (O. 20 R. 16)
(6) Suit for Partition and Separate Possession (O. 20 R.18)
(7) Suit for foreclosure of Mortgage (O. 34 R. 2-3)
(8) Suit for Sale of Mortgaged Property (O. 34 R. 4-5)
(9) Suit for Redemption of Mortgage (O. 34 R. 7-8)Question whether decision amounts to preliminary decree or not is a great significance in view of Section 97 CPC which provides:-
"Where any party aggrieved by Preliminary decree does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from final decree."FINAL DECREE A decree may be said to final in two ways:-
(i) When within prescribed period no appeal is filed against the decree or the matter has been decided by decree of the highest court.
(ii) When the decree, so far as regards the court passing it completely disposes of the suit.Normally "Final Decree" is construed which so far as the court passing it, finally dispose of the controversy involved and the suit. ORDER [Section 2(14)]Order means the formal expression of any decision of civil court which is not a decree (Section 2(14)). Thus the adjudication of a court which is not a decree is an Order. DECREE and ORDER : DISTINCTION The adjudication of court of law may either be decree or Order : Fundamental distinction between two are:-
(a) Decree can only be passed in a suit which commenced by presentation of plaint. An Order can be passed in suit by presentation of plaint or may arise from proceeding commenced from application.
(b) Decree is an adjudication conclusively determining the rights of parties with regard to all or any of the matter in controversy. Order on the other hand, may or may not finally determine such rights.
(c) Decree may be preliminary or final, but there cannot be preliminary order.
(d) Except in certain suits in which two decrees i.e. one preliminary and one final is passed, there can be only one decree, but in suit or proceedings there can be number of orders.
(d) Every decree is appealable unless otherwise expressly provided but every order is not appealable only those orders are appealable as specified in code.
Q. 4. Are the following orders amount to "decree" within the meaning of Section 2(2) of Code :
(A) An order rejecting a memorandum of appeal insufficiently stamped;
(B) Memorandum of appeal which is dismissed as time barred;
(C) An order returning a memorandum of appeal for amendment;
(D) An order that a suit abates.
"Decree means the formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of plaint and termination of any question within section 144, but shall not include -
(a) Any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."Keeping in view the above definition let us assess whether following are decree or not
(A) An order rejecting a memorandum of appeal as insufficiently stamped is not decree because said order is not appealable and fresh memorandum of appeal with requisite stamp may be filled.
(B) Dismissal of appeal being barred by limitation is decree as the court dismissing it, even on the ground of limitation is finally disposing of the matter. Such order is appealable as decree.
(C) Order returning memorandum of appeal for amendment is not decree because such order does not finally dispose off the matters so far as the court passing such order.
(D) An order that suit abates is a decree.
"Whether any party aggrieved by a preliminary decree ......... does not appeal from such decree, he shall be precluded from disputing it's correctness in any appeal which may be preferred from the final decree."So in view of Section 97, in an appeal against final decree, correctness of preliminary decree cannot be challenged in the absence of any appeal against preliminary decree by aggrieved party."
"The right to possession is a sacred right guaranteed to all law-abiding citizens. When a person is deprived of his possession he is not only entitled to recover possession but also damages for wrongful possession by another. The mesne profits are a compensation, which is penal in nature. The object of awarding a decree for mesne profits is to compensate the person who has been kept out of possession and deprived of enjoyment of his property. Thus, `wrongful' possession of the defendant is the essence of a claim for mense profits."In Fateh Chand v. Bal Kishan Das, AIR 1963 SC 1405 it was observed that mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case can be laid down and court may mould it according to justice of the case. However following principles would ordinarily guide a court for determining the amount of mesne profits :-
(i) no profit by a person in wrongful possession;
(ii) restoration of status before dispossession of decree holder; &
(iii) use to which the decree-holder would have put the property if he himself was in possession.(B) Foreign Judgment - Section 2(5) of Code has defined "Foreign Court" as a court situated outside India and not established or continued by the authority of the Central Government. Similarly section 2(6) say "Foreign Judgement" means a judgment of a foreign Court. In Shitole v. Sanker Saran, AIR 1962 SC 1737. It was observed that crucial date to determine whether the judgment is of a foreign court or not is the date of the judgment and not the date when it is sought to be enforced or executed, so a judgment of a foreign court at the time of its pronouncement would not cease to be foreign judgment by reason of the fact that subsequently the foreign territory has become part of the Union of India. (C) Judgment-debtor. - Section 2(10) of Code of Civil Procedure says -
`Judgment-debtor' means any person against whom a decree has been passed, or an order capable of execution has been made. Where the decree is passed against a surety, he is a judgment-debtor within the meaning of this section. On the other hand, a person who is a party to the suit, but no decree has been passed against him, is not a "judgment-debtor."(D) Decree holder. - Then Section 2(3) of Code defines "Decree-holder" as -
`Decree-holder' means any person in whose favour a decree has been passed or an order capable of execution has been made. From this definition, it is clear that the decree-holder need not necessarily be the plaintiff. A person who is not a party to the suit but in whose favour an order capable of execution has been passed is also a decree-holder.(E) Exparte Decree. - Order 9 Rule 6 of the Civil Procedure Code provides that where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then if it is proved that the summons was duly served the Court may make an order that the suit be heard exparte. `Exparte' means, in the absence of the other party. Exparte decree can be passed only after the date of the first hearing fixed in the summons, and not before that. The order to proceed exparte can also be passed if the defendant, after putting his appearance after service of summons, remains absent on the date of hearing subsequent fixed. Even if the court proceeds exparte, it has to act according to law, and the plaintiff must prove his case. (F) Legal Representative. - The term, `legal representative' has been defined in section 2(11) of the Civil Procedure Code. According to it, `legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. The above definition is not exhaustive, but illustrative. In order to be a legal representative under section 2(11), it is not necessary that a person should be a legal heir of a deceased person or that he should have a beneficial interest in the estate.
"It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction...strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."Kinds of Jurisdiction; Jurisdiction of a court may be classified into the following categories :-
(i) Territorial or local jurisdiction - Every court has its own local or territorial limits beyond which it cannot exercise its jurisdiction. These limits are fixed by the Government. The District Judge has to exercise jurisdiction within his district and not outside it. The High Court has jurisdiction over the territory of the State within which it is situate and not beyond it. Again, a court has no jurisdiction to try a suit for immovable property situated beyond its local limits.
(ii) Pecuniary jurisdiction - Section 6 of Code provides that a court will have jurisdiction only over those suits, the amount or value of the subject-matter of which does not exceed the pecuniary limits of its jurisdiction. Some courts have unlimited pecuniary jurisdiction, e.g. High Courts and District Courts have no pecuniary limitations. But there are other courts having jurisdiction to try suits up to a particular amount of subject matter.
(iii) Jurisdiction over the subject-matter - Different types of courts have been allotted different type of work by different statutes. For example, a small cause court can try only certain suits, such as money suit, based on an oral loan or a bond or promissory note, a suit for price of work done, a suit for recovery of price of goods supplied, but it has no jurisdiction to try the suits for specific performance of contracts, for injunction, for a dissolution of partnership, or suit for partition of immovable property. Similarly, only District Judge has the jurisdiction in respect of testamentary matters, such as granting probate or letter of administration, and divorce cases.
(iv) Original or Appellate Jurisdiction - The jurisdiction of a Court may be original or appellate. For example, the jurisdiction of the court of munsif and small cause court is only original, while the court of Civil Judge, District Judge, and High Court also exercise appellate jurisdiction. In the exercise of its original jurisdiction, a court entertains original suits, while in the exercise of its appellate jurisdiction it entertains appeals.
Q. 9 Whether following suits are cognizable by civil court :-
(A) Suit for dismissal from post of honorary secretary of an association.
(B) Suit for exclusion of a member from cast.
(C) Suit to set aside the election of directors.
(D) Proceedings for dissolution of Muslim marriage.
(E) Claim by Swami to be carried out in palanquin on high road of Town on a occasion.
(F) Suit relating to costs property.
(A) Suit for dismissal from post of honourary secretary of an association is not suit of civil nature within the meaning of Section 9.
(B) Suit for exclusion of a member from a caste is a one cognizable by civil court because exclusion of some one from his caste, affects his legal right.
(C) Suit to set aside the election of director's is suit of civil nature because in such suit, legal right of some one for being appointed as "Directors' is challenged.
(D) Proceeding for dissolution of Muslim marriage is purely a suit of civil nature.
(E) Claim of any Swami to be carried out in palanquin is not a suit of civil nature, because, it does not involve any legal right of Swami but claim is mark of honour.
(F) Suit for inspection of accounts of caste property is a civil nature, as every member of cast is entitled to inspect account books at all reasonable times on demand.
"No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or constituted by the Central Government and having like jurisdiction, or before the Supreme Court."The object of the Rule contained in Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject-matter and the same relief. The policy of the law is to confine the plaintiff to one litigation, thus obviating the possibility of two contradictory verdicts by one and the same court in respect of the same relief. In Shetty v. Giridhar, AIR 1982 SC 83 it was held :
For the application of this Section , the following conditions must be satisfied :-
(1) There must be two suits, one previously instituted and the other subsequently instituted.
(2) The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
(3) Both the suits must be between the same parties or their representatives.
(4) The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in India or in any court beyond the limits of India established or continued by the Central Government or before the Supreme Court.
(5) The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit.
(6) Such parties must be litigating under the same title in both the suits.
"No Court shall proceed with the trial of any suit in which the matter in issue is also directly the substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the central Government and having like jurisdiction, or before the Supreme Court."So what is important to invock Section 10 is that subsequently filled suit should be for same cause of action and between same parties and matter in issue in previous and subsequent suits must be directly and substantially the same. Where the cause of action and reliefs are different, it cannot be said that the matter in issue between the two suits is directly and substantially the same. Identity of one or two issues is not enough. What has to be seen is whether the filed of controversy is the same and whether the final decision in the previous suit is such as would operate as res judicata in the subsequent suit. Where one of the heirs to the premises filed a suit for declaration of his share and of the other heirs impleaded as defendants and for partition and the subsequent suit was filed by another heirs for eviction of the tenant from those premises and the plaintiff in the first suit also being heirs was impleaded as pro forma defendant, the controversy in the two suits cannot be said to be the same as the controversy in the first suit relates to the share of the parties in the premises and the subsequent suit for eviction has nothing to do with the same. Therefore the subsequent eviction suit need not be stayed under Section 10 C.P.C.
Q. 12 B residing in Calcutta has an agent at Calicut employed to sell his goods there. A sues B in Calicut claiming a balance due upon an account in respect of dealing between him and B. During the pendency of the suit in Calicut Court competent to grant relief B institute a suit against A in Calcutta for an account and damages caused by A's alleged negligence. Can the Calcutta Court proceed with trial of B's suit?
(1) nemo debt lis vexari pro uno et eaden causa
: No man should be vexed twice for same cause.
(2) intrest republica ut sit finis litium
: It is in the interest of the state that there should be an end to a litigation.
(3) Res Judicata pro veritate occipiture
: a judicial decision must be accepted as correct.Section 11 C.P.C. provide as under :-
"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court".In Daryao v. State of U.P., AIR 1961 SC 1457 Supreme Court observed :- The binding character of judgment pronounced by court of competent jurisdiction is itself an essential part of rule of law and rule of law obviously is the basis of administration of justice on which the Constitution lays so much emphasis." In Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332 it was held that "It is not every matter decided in a former suit that will operate as `res judicata' in a subsequent suit. To constitute a matter res judicata under section 11 the following conditions must be satisfied :-
(a) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.
(b) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim.
(c) Such parties must have been litigating under the same title in the former suit.
(d) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised (Explanations II and VII are to be read with this condition).
(d) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in former suit.
Q. 14 (a) Discuss the doctrine of constructive res judicata. (b) A sues B to recover certain property belonging to the estate of C, alleging that his (A's) father had been adopted by C's brother D, to whom the property descended on C's death. The suit is dismissed on the ground that the adoption is not proved. A then sues B to recover the same property claiming it as C's Bandhu. Is the suit barred as res judicata ? (c) A, alleging that he is the adopted son of X sues B to recover certain property granted to him by X under a deed and forming part of the estate of X. The court finds that A is not the adopted son of X, but that he is entitled to the property under the deed and a decree is passed in favour of A. Will the finding that A is not the adopted son of X operate as res judicata in a subsequent suit between A and B in which the question of adoption is again put in issue ?
"When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided."Ans. (b) Rule of Constructive Res Judicata as embodied in Explanation IV to Section 11 C.P.C. is an artificial form of Res Judicata and provides that if a plea should have been taken by a party in a proceeding between him and his opponent, but was not actually taken in that former suit, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to same subject matter. Explanation IV to Section 11 C.P.C. provides "Any matter which might or ought to have been made a ground of defence or attack in the former suit, but which has not been made ground of attack or defence shall be deemed to have been matter directly and substantially in issue in such suit." Coming now to case in hand, when A filed earlier suit against B, it was open to A to take the plea of C's Bandhu to recover property, but A did not take that plea and only made his claim on the basis of alleged adoption of his father by D who was C's brother. A's earlier suit was dismissed and now A's second suit is barred by constructive res judicata. Ans. (c) One of the requirements for application of Rule of res judicata as embodied in Section 11 C.P.C. is that Judgement of Court must be on a matter which was directly and substantially in issue between parties. When a court of competent jurisdiction hears and finally decides any matter which was directly and substantially in issue between parties it will only operate res judicata in any subsequent suit between same parties if that matter is again directly and substantially in issue in such subsequent suit. The words "directly and substantially in issue" have been used in Section 11 in contradiction to words "collaterally and incidentally in issue". Decisions on the matters collateral and incidental to main issues in the case will not operate as res judicata. A collateral or incidental issue means an issue which is ancillary to direct and substantive issue. Recently Supreme Court in Madhvi Amma Bhawani Amma and others v. Kunjikutti Pillai Meenakshi Pillai and others, AIR 2000 SC 2301 observed :-
"In order to apply the general principle of res judicata court must find whether an issue in subsequent suit was directly and substantially in issue in earlier suit or proceeding, was it between the same parties and was it decided by such court. Thus there should be an issue raised and decided not merely any finding on any incidental question for reaching such decision so if no such issue is raised and if on any other issue if incidentally any finding is recorded, it would not come within the periphery of principle of res judicata."Moreover, a finding on an issue cannot be said to be necessary to the decision of a suit unless the decision was based upon that finding. In the case in hand, the finding that A is not the adopted son of X will not operate as res judicata in a subsequent suit between A and B in which the question of adoption is again put in issue, for the decree being in favour of A, A could not have appealed from that finding. The Court having found that A was entitled to the property under the deed, the finding on the question of adoption was not necessary to the determination of the suit. The decree, far from being based on the finding as to adoption, was made in spite of it.
Q. 17 (a) Nine Akali Sikhs sue for removal of Mahant of a religious institution. The suit is dismissed on the ground that the institution is Hindu Dera and not a Sikh Gurudwara. Subsequently and after the passing of Sikh Gurudwara Act 1925, sixty four sikhs sue for declaration that institution is Sikh Gurudwara. Is the suit is barred by Res Judicata ? (b) A a Hindu dies leaving widow and brother B. The widow sues B for recovery of certain property alleging that it was a self acquired property of her husband and that a will alleged to have been executed by her husband and relied upon by B was a forgery. B alleges that the property was joint family property and that on the death of A he became entitled thereto by right of survivorship, but he does not claim any title to the property under the will. The court finds that the property was self acquired property of A and decrees the widow's claim. Subsequently B sues the widow to recover same property from her now claiming the same as devisee under A's will. Is the suit barred by res judicata ?
(i) there must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit
(ii) Parties not expressly named in suit must be instructed in such right.
(iii) Litigation must have been conducted bona fide and on behalf of all parties interested and
(iv) if suit is under Order 1 Rule 8 all conditions of such provision must have been strictly complied with. It is only then that decision may operate as res judicata.But where a party claims right for himself alone which happens to be common to him and other, then it cannot be said that he was litigating on behalf of other and Explanation VI of Section 11 C.P.C. does not apply." In the case in hand, earlier suit was filed by nine Akali Sikhs for removal of Mahant of Religious institution. These Akali Sikhs were claiming in suit not as Representatives for all sikhs, but they were having their individual claim in that suit. Therefore decision in the former suit can not operate as res judicata in subsequent suit which was filed by sixty four sikhs after passing of Sikh Gurudwara Act, 1925. (b) Rule of Res Judicata applies in respect of only those matters which were directly and substantially in issue in former suit and which were heard and finally decided in that suit by court, and are directly and substantially in issue in subsequent suit, between same parties. Explanation III to Section 11 says all those matters which have been alleged by one party and either denied or admitted by the other (Expressly or Impliedly) are deemed to be directly and substantially in issue, within the meaning of Section 11 C.P.C. Explanation IV of Section 11 C.P.C. provides "Any matter which might or ought to have been made ground of defence or attack in such former suit but which has not been made ground of attack or defence, shall be deemed to have been matter directly and substantially in issue in such suit." So Explanation IV to Section 11 provides for Rule of "Constructive Res Judicata" and provide if a plea could have been taken by a party in proceedings between him and his opponent, he could not be permitted to take that plea against the same party in a subsequent suit with reference to the same subject matter. In State of U.P. v. Nawab Hussain, AIR 1977 SC 1681 Supreme Court observed:-"When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and therefore, is taken as decided." Coming now to case in hand, when widow of A filed suit against B for recovery of property on the ground of Will allegedly executed by A and on the ground that suit property was A's self acquired property, B contested that suit only on the ground that suit property was joint property and not A's self acquired property. B in that suit could have taken the defence for which he filed second suit in reference to same property and against same party i.e. widow of A. Therefore bar of constructive res judicata will apply in respect of suit filed by B for recovery of property on the ground of A's will.
(1) Any party to a suit may apply to the court for an order directing any other party to make discovery on oath of the documents which are or have been in possession or power, relating to any matter in question in the suit.
(2) The court may either refuse or adjourn such application if satisfied that such discovery is not necessary or not necessary at that stage of the suit or make such order as it thinks fit.
(3) The court may exercise this power at any stage, either of its own motion or on an application of any party and subject to such conditions and limitations as may be prescribed by it.
(4) Generally, no order of discovery, inspection or production of documents will be passed by the court on the application of the plaintiff until the written statement is filed by the defendant or the time to file it has expired.
(5) Discovery cannot be ordered by the court if it is of the opinion that it is not necessary either for the fair disposal of the suit or for saving costs.
(6) A party against whom an order for discovery of documents has been made by the court is, as a general rule, bound to produce all the documents in his possession or power. However, if such party considers that he is entitled to legal protection in respect of a particular document which he has been ordered to produce by the court, he is at liberty to take such objection.
(7) When such privilege is claimed for any document, the court will inspect such document for the purpose of deciding the validity of the claim of privilege, unless the document relates to matters of Stage.
1. Where it has not been pronounced by court of competent jurisdiction.
2. Where it has not been given on merits of case.
3. Where it appears on the face of proceedings to be founded on incorrect view of International Law or refusal of recognised principle of law in India.
4. Where the proceedings in which judgment was obtained are opposed to natural justice.
5. Where it has been obtained by fraud.
6. Where it sustains a claim founded on breach of any law in force in India.A combined reading of Sections 43 to 44-A shows that the Indian courts have power to execute the decrees passed by
(1) Indian courts to which the provisions of the Code do not apply;
(2) the courts situate outside India which are established by the authority of the Central Government;
(3) revenue courts in India to which the provisions of the Code do not apply; and
(4) superior courts of any reciprocating territory.In Sheikh Ali v. Sheikh Mohd. AIR 1967 Madras 45(a) it was held :
"The jurisdiction of district court in this country to execute foreign judgment arises from and is exercisable by the filing of a certified copy of foreign decree or judgement. It is only thereafter and never until then the procedural laws as to lex fori will be attracted to execution. The Limitation Act can apply possibly to such execution only after filing a certified copy of the foreign decree or judgment as required by Section 44-A(1) of Civil Procedure Code.In M/s International Woollen Mills v. M/s Standard Wools (U.K.), AIR 2001 SC 2134, it was observed section 44-A C.P.C. says where a certified copy of decree of any superior court of any reciprocating territory has been filed in District Court along with certificate from such superior Court stating the extent if any to which the decree had been satisfied or adjudicated, decree may be executed in India as if it had been passed in India. Court observed regarding section 13(b) C.P.C. that it can not be said that expression "Foreign Judgment on merit" implies that it must have been passed after contest and after evidence had been let in from both the side. An Ex parte foreign decree and judgment in favour of plaintiff may deemed to be judgment given on meriet if some evidence is adduced on behalf of plaintiff and judgment is based on consideration of that evidence."
"Every suit shall be instituted in the court of the Lowest grade competent to try it."So section 15 refers to the pecuniary jurisdiction of the Court. Underlying object of Section 15 is to see that court of higher grade may not be over burdened with suits and to ensure that justice may be provided at the door step of litigants. Suits to be instituted where subject matter situate Section 16 of the Civil Procedure Code provides that, "subject to the pecuniary or other limitations prescribed by any law, suits regarding immovable property are to be instituted in court within whose local jurisdiction the property is situate". However, it has also been provided in its proviso that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually resides or carries on business or personally works for gain. Suits for Immovable property situate within jurisdiction of different Courts. Section 17 of the Civil Procedure Code provides that where a suit is to obtain relief respecting or compensation for wrong to immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property, is situate, provides that in respect of the value of the subject- matter of the suit, the entire claim is cognizable by such court. Place of institution of suit where local limits of jurisdiction of courts are uncertain. Section 18 of the Code of Civil Procedure provides that where it is alleged to be uncertain within the local limits of jurisdiction of which of two or more courts, any immovable property is situate, any one of those courts if satisfied that there is ground for the alleged uncertainly, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction, provided that the suit is one with respect to which the court is competent as regards the nature and value of the suit to exercise jurisdiction. Sub-section (2) of section 18 C.P.C. further provides that where a statement has not been recorded under sub-section (1) and an objection is taken before an appellate or revisional Court that a decree or order in a suit relating to such property was made by a court not having jurisdiction where the property is situate, the appellate or revisional court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice. Suits for Compensation for wrongs to person or movables. Section 19 of the Code of Civil Procedure provides that where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts. Other suits to be instituted where defendant resides or cause of action arises. Section 20 of the Code of Civil Procedure provides that subject to the aforesaid rules, every other suit shall be instituted in a court within the local limits of jurisdiction -
(i) where the cause of action, wholly or partly, arises; or
(ii) where the defendant resides, or carries on business or personally works for gain; or
(iii) where there are two or more defendants, any of them resides or carries on business or personally works for gain, provided that in such case (a) either the leave of the court is obtained, or (b) the defendants who do not reside or carry on business or personally work for gain at that place acquiesce (agree to) in such institution.Explanation - A corporation shall be deemed to carry on business at its sole or principal office in India, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
Q. 22 Plaintiff a resident of Faridabad has filed a suit in Delhi Courts against the defendant, a resident of Delhi for declaration that he has half share in the house situated in Kanpur and in the sum of Rs. 50,000 lying deposited in a bank in Delhi and that defendant has wrongfully got the house registered in his own name and is also not admitting the claim of plaintiff in the amount. The defendant has contested the suit on the ground that Delhi Courts have no jurisdiction to try the suit. How will you decide ?
(a) for the recovery of immovable property
(b) for partition of immovable property
(c) for foreclosure, sale or redemption in case of mortgage of or charge upon immovable property.
(d) for the determination of any other right to or interest in immovable property.
(d) for compensation for wrong to immovable property.
(f) for recovery of immovable property actually under distraint or attachment,shall be instituted in the Court within the local limits of whose jurisdiction the property is situated.
Provided that suit to obtain relief respecting or compensation for wrong to immovable property held by or on behalf of defendant may, where the relief sought can be entirely obtained through his personal obedience be instituted either in court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business or personally works for gains."In the present case plaintiff's claim is right or interest in immovable property which is situated at Kanpur therefore in view of clause (d) of Section 16, Delhi Courts has no territorial jurisdiction to decide the suit for such immovable property. Therefore plaintiff's suit for his right to or interest in immovable property situated at Kanpur shall not be maintainable. Now question arises as to claim of plaintiff for Rs. 50,000, lying deposited at Delhi Bank. Here Section 20 of C.P.C. is relevant which provide that suits not covered by any Rules provided under section 16 to 18 shall be filed :
(a) Where the cause of action wholly or partly arises
(b) Where defendant resides or carries on business or personally works for gain or
(c) Where there are two or more defendants, any of them resides or carries on business or personally works for gains provided in such case either leave of court is obtained or the defendant who does not reside or carry on business or personally works for gains at that place acquiesce in such institution.Defendant in present case resides at Delhi and sum of Rs. 50,000, in respect of which cause of action arose also lying deposited at Delhi Bank therefore in view of provisions of Section 20 C.P.C., plaintiff's suit at least for Rs. 50,000, is maintainable at Delhi Courts.
Q. 23 (a) X, Y and Z are joint owners of a property situated at Jaipur. X lives in Bombay, Y lives in Delhi and Z lives in Jaipur. In which court or courts can the suit for partition be filed ? Give reasons. (b) A residing in Bombay, publishes in Delhi statements defamatory of B. Where can B file a suit for compensation against A ?
Q. 24 A transport company has its head office at Chandigarh and branch offices at Chennai, Jaipur and Mumbai. A dispute cropped up between Sam and the company in respect of a transaction made through Chennai office. Sam files a suit in respect of this dispute against the company in a court at Jaipur. How the court will decide ?
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid acquiesce in such institution;
(c) or the cause of action, wholly or in part, arises.Explanation : A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place". So if a suit is filed against a Corporation on the ground of its carrying on business, then in view if Explanation to Section 20, suit will lie where the Corporation has its head office even if no part of cause of action arises there or branch office where cause of action has arose. In the case in hand the suit against the Company can be filed at Chandigarh where it has its head office, or at Chennai where the Company has its branch office and cause of action has arisen at Chennai. No suit can be entertained by a Court at Jaipur or Mumbai, although the company has its branch offices at those places, because no part of the cause of action arose either at Jaipur or Mumbai.
Q. 25 A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at Varanasi, B and C make a joint promissory note payable on demand and deliver it to A. A files suit for recovery at Varanasi, B and C object to Jurisdiction of Court at Varanasi to try the suit asserting that defendants B and C do not reside at Varanasi. How would you decide the objection ?
"Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction :-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institutions; or
(c) the cause of action, wholly or in part, arises."Under this Section the plaintiff has the option of suing at a place either where the cause of action or a part thereof has accrued, or in the forum of the defendant, i.e., where the defendant resides or carries on business or personally works for gain. In view of the provisions contained in Clause (b) of Section 20 of the Code, A can file the suit at Calcutta where B resides, or at Delhi where C resides; but in each of these cases either the non-resident defendant should acquiesce in such institution or the leave of the Court should be obtained. If the non-resident defendant objects, the suit cannot proceed without the leave of the Court. In the present case, the joint promissory note payable on demand was executed by B and C at Varanasi. In other words, the contract was made at Varanasi. It is a settled proposition of law that the making of the contract is a part of the cause of action, and, as such, a suit can be filed on the basis of the said pronote at Varanasi where the cause of action arose.
Q. 26 Determine the place of suing in the following cases:
(i) `A', a resident of Delhi, `B' a resident of Bangalore and `C' of Calcutta, meet at Kurukshetra. There `B' and `C' borrowed Rs. 10,000/- from `A' and jointly executed a pronote and handed it over to `A'. All of them went back to their respective places but the money was not returned. `A' wants to file a suit for recovery of his money.
(ii) Father of `A' and `B' had a bungalow at Gurgaon, one house at Rohtak and Delhi each and two big mango-groves in the district of Hissar. After the death of the father, `A' took over the management of the entire property and began appropriating the income. `B' wants to sue for partition of the property.
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institutions; or
(c) the cause of action, wholly or in part, arses.In the present case, the joint promissory note payable on demand was executed by B and C at Kurukshetra. In other words, the contract was made at Kurukshetra. Therefore, A can file the suit on the basis of the said pronote at Kurukshetra where a part of the cause of action arose. In view of the provisions contained in Clause (b) of Section 20 of the Code, A can file the suit at Bangalore where B resides, or at Calcutta where C resides; but in each of these cases either of the non-resident defendant should acquiesce in such institution or the leave of the Court should be obtained. If the non-resident defendant objects, the suit cannot proceed without the leave of the Court. (ii) Section 16 of the Code of Civil Procedure provides that subject to the pecuniary or other limitations prescribed by any law, a suit for partition of immovable property shall be instituted in the court within the local limits of whose jurisdiction the property is situate. Then Section 17 lays down that where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate. This Section is practically another proviso to Section 16(1) of the Code. Therefore, in the present case B can file a suit for partition of the said properties in any one of the courts at Gurgaon, Rohtak, Delhi or Hissar.
(i) The objection was taken in the court of first instance ;
(ii) It was taken at the earliest possible opportunity and in cases where issues are settled at or before settlement of issues ; and
(iii) There has been a consequent failure of justice.OBJECTION AS TO PECUNIARY JURISDICTION Sub-section (2) of section 21 of the Code of Civil Procedure provides that no objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional Court unless such objection was taken in the Court at first instance at the earliest possible opportunity and in all cases where issues are settled, on or before such settlement, and unless there has been a consequent failure of justice. So Section 21 which confines its application only to objections as to territorial or pecuniary jurisdiction of a court and provides that defects as to place of suing under section 15 to 20 may be waived, if defendant allows the trial Court to proceed to decide the matter without raising objection in this regard. In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, it was observed-
"When a case had been tried by a court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on merits."
(i) Where the several courts having jurisdiction are subordinate to the same appellate court, an application under section 22 shall be made to the appellate court.
(ii) Where such courts are subordinate to different appellate courts, but to the same High Court, the application shall be made to the said High Court.
(iii) Where such courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the court in which the suit is brought is situate.Apart from the said provisions relating to transfer, section 24 of the Code of civil Procedure deals with the general powers of transfer and withdrawal. It provides that on the application of any of the parties and after notice to the parties and after hearing such of them as desires to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage withdraw any suit, appeal or other proceedings before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same, or, withdraw any suit, appeal or other proceeding pending in any court subordinate to it. In case of withdrawal, it can try or dispose of the same, or transfer the same for trial or disposal to any court subordinate to and competent to try or dispose of the same or retransfer the same for trial or disposal to the court from which it was withdrawn. By adding sub-section (3) to section 24 of the Code of Civil Procedure, by the Amendment Act of 1976, it has further been clarified that courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Judge Court and `proceeding' includes a proceeding for the execution of a decree or order. It has further been provided by sub-section (5), which too has been added by the Amendment Act of 1976, that a suit proceeding may be transferred under this section from a Court which has no jurisdiction to try it. Section 25 of Code provide regarding power of Supreme Court to transfer suits etc. Section 25(1) says that on application of a party and after notice to the parties and after hearing such of them as desire to be heard, the Supreme Court, may at any stage, if satisfied that an order under this Section, is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil court in any other State.
(1) there must be some debt, sum of money or other property movable or immovable in dispute;
(2) two or more persons must be claiming it adversely to one another;
(3) the person from whom such debt, money or property is claimed, must not be claiming any interest therein other than the charges and costs and he must be ready to pay or deliver it to the rightful claimant; and
(4) there must be no suit pending in which the rights of the rival claimants can be property decided.(c) Procedure - Order 35 lays down the procedure relating to an interpleader suit. In every interpleader suit the plaint in addition to other statements necessary for plaints, state (i) that the plaintiff claims no interest in the subject-matter in dispute other than the charges or costs; (ii) the claims made by the defendants severally; and (iii) there is no collusion between the plaintiff and any of the defendants. The Court may order the plaintiff to place the thing claimed in the custody of the court and provide his costs by giving him a charge on the thing claimed. Where any of the defendants in an interpleader suit files a suit against the plaintiff in another court in respect of the subject-matter of the suit, that court shall stay the proceedings. At the first hearing, the court may declare that the plaintiff is discharged from all liability, award him his costs and dismiss him from the suit; or if it thinks that justice or convenience so requires, retain all parties until the final disposal of the suit. Where the admission of the parties or other evidence enables the court to do so, it may adjudicate the title to the thing claimed.
Provided that nothing in this rule shall apply to non-joinder of a necessary party.Misjoinder of Causes of Action Order 2 Rule 3 of the Code of Civil Procedure provides that save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly, and any plaintiffs having cause of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. Therefore, if the plaintiffs are not jointly interested against the same defendant or defendants jointly, then, there is a misjoinder of causes of action. It has further been provided in Order 2 Rule 7 C.P.C., that all objections regarding misjoinder of causes of action shall be taken at the first hearing of the suit i.e., at the earliest opportunity at or before settlement of issue, unless the ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived. Same is the position regarding the objections as to non-joinder or misjoinder of parties as provided in Order 1 Rule 13 C.P.C.
Q. 31 A owned some land which B was cultivating as a tenant. A had four sons C, D, E and F. After A's death the land was sold by C, D, E and G son of predeceased son F to H vide registered sale deed dt. 12.2.68. H filed suit for recovery of possession against B. B contested the suit on the ground inter alia that there are other co-owners of that property and since all co- owners have not joined in the filing of suit, the suit is bad for non-joinder of necessary parties. In the written statement he also gave the pedigree table of A but did not lead any evidence in this regard. The revenue record also did not show that there was any other legal heir of A except C, D, E and G at the time of sale. So H contended that he is sole owner and suit is not bad for non-joinder of other co-owners - Decide.
(a) He ought to have been joined as plaintiff or defendant and is not so joined or
(b) Without his presence, the question involved in the suit can not be completely decided.So precisely speaking no suit shall be dismissed for non-joinder or mis- joinder of parties unless it is shown that any necessary party is there which is not joined and without whom matter can not completely and adequately decided. In Laxmi Shankar v. Yash Ram Vasta AIR 1993 SC 1587 Supreme Court after relying upon the judgment of Pal Singh v. Sunder Singh AIR 1989 SC 758 wherein it was held that when other co-owner did not object to eviction, one co-owner could maintain eviction petition in the absence of other co-owner. Similarly in A. Vishwanath Pillai's Case AIR 1991 SC 1966 wherein it was held that co-owner could successfully file suit and recover the property against stranger, held that in the absence of necessary proof it can not be held that suit is not maintainable on the ground of non- joinder of necessary party. Coming now to case in hand only issue for determination is whether plea of defendant (b) in the suit that necessary parties have not been joined is sustainable. In his written statement Defendant (b) has produced pedigree table. However to substantiate his plea, B has not led any evidence as to Necessary party. A vague statement of B could not be considered sufficient for attraction of provisions of Order 1 Rule 9 C.P.C. On the other hand Revenue Record shows that there were no other legal heirs of A except B, C, D and G at the time of sale of suit property to plaintiff (H). Therefore in the absence of any proof that there are other co-owner and are necessary parties, the suit can not be dismissed for non-joinder of necessary parties.
(a) The Parties must be numerous.
(b) They must have same or common interest in suit.
(c) Permission must have been granted or direction must have been given by the court.
(d) Notice must have been issued to parties whom it proposed to represent in the suit.
(i) That the second suit is in respect of the same cause of action as that on which the previous suit was based,
(ii) that in respect of the cause of action, the plaintiff was entitled to more than one relief; and
(iii) that the plaintiff without the leave of the court omitted to sue for the relief for which the second suit has been filed.
(i) Second suit must be in respect of same cause of action as that on which a previous suit was based.
(ii) In respect of that cause of action, plaintiff was entitled to more than one relief.
(iii) Being so entitled plaintiff without leave of the court omitted to sue for relief, for which now second suit has been filed.That being the legal position, in problem in hand Order 2, Rule 2 is not applicable because suit for mesne profit (Damage for wrongful possession) arise subsequent to when suit for possession is decreed. Suit for possession and suit for damages for wrongful possession (mesne profits) are two distincts suit and have separate cause of action. Therefore plaintiff after having suit for possession decreed can file suit for damages.
Q. 35 (a) Whether the court has power to order separate trials in respect of a suit in which several causes of action have been joined ? (b) Whether the Court can order consolidation of pending suits ? A suit is filed by a tenant for declaring him as a monthly tenant of the defendant landlord and subsequently another suit is filed by landlord for recovery of possession of the same property from the tenant. Whether both these suits can be consolidated ?
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the claim of plaintiff.
Provided further that where defendant fails to file the written statement within said period of 30 days he shall be allowed to file the same on such other days as may be specified by the court for reasons to be recorded in writing, but which shall not be later than 90 days from date of service of summons." Order V Rule 2 of the Code of Civil Procedure also provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement.RULES RELATING TO SERVICE OF SUMMON (1) Personal Service: Order V Rule 10 of Code of Civil Procedure provides that service of summons shall be made by delivering or tendering a copy thereof, signed by the judge or such officer as he appoints in this behalf and sealed with the seal of the court. According to Rule 12 of Order V of the Code of Civil Procedure, wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service in which case the service on such agent shall be sufficient. Order V Rule 15 of the Code of Civil Procedure provides that where in any suit the defendant is absent at the time when the service of summons is sought to be effected on him at this residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. (2) Service by Affixation : Order V Rule 17 of Code of Civil Procedure provides this mode of service. According to it, where the defendant or his agent or such other person, as aforesaid, i.e., the adult member of this family, refuses to sign the acknowledgement, or where the serving officer after using all due and reasonable diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom the service can be made, the serving officer shall affix a copy of summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto, stating that he has so affixed the copy, the circumstances under which he did so. (3) Service by Registered Post : Rule 12-A has been added to Order V of the Code of Civil Procedure by the Amendment Act of 1976 and it provides for simultaneous issue of summons for service by post in addition to personal service. It lays down that the court shall, in addition to and simultaneously with, the issue of summons for service also direct the summons to be served by registered post, acknowledgement due, addressed to 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. Sub-rule (2) of Rule 12-A of the said Order V lays down that when an acknowledgement purporting to be signed by the defendant or his agent is received by the court or the postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons when tendered to him, the court issuing the summons shall declare that the summons had been duly served on the defendant. (4) Delivery of Summons by Court. - Vide Amendment Act No. 22 of 2002, Rule 9 of Order 5 has been amended, which provided Delivery of Summons By Court" - Rule 9 inter alia says that where defendant resides within the jurisdiction of court in which suit is instituted or has an agent resident within that jurisdiction who is empowered to accept the summon it shall, unless court otherwise directs, be delivered to proper offices, to be served by him or to such courier services as all approved by the court. (5) Serice by curier. - Sub rule (3) as amended in year 2002 says service of summons may be made by delivering or transmitting a copy thereof by registered post A.D. or by speed-post or by such courier services as approved by High Court or Court referred in sub-rule (1). However service of summons under this rule shall be made at the expense a plaintiff. (6) Substituted Service : Order V Rule 20 of the Code of Civil Procedure provides for substituted service. It lays down that where the court is satisfied that there is no reason to believe that the defendant is keeping out of the way for the purposes of avoiding service, or that for any other reasons the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous part of the house, if any, and in which the defendant is known to have last resided or carried on business or personally worked for gain or in such other manner as the court thinks fit. Sub-rule 1 - A added to the said Rule, by the Amendment Act of 1976, further provides that where the court acting under Sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. (7) Service on Soldiers, Sailors or Airman : Rule 28 of Order V of the Code of Civil Procedure provides that where the defendant is a soldier, sailor or airman, the court shall send the summons for service to his commanding officer, together with a copy to be retained by the defendant. (8) Service on Corporation : Order XXIX Rule 2 of the Civil Procedure Code deals with service on corporation. It provides that where the suit is against a corporation, the summons may be served: (a) on the secretary, on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office, then at the place where the corporation carries on business. (9) Service on defendant resides within the jurisdiction of another court. - Service of summons on the defendant who resides within the jurisdiction of another court is to effected in accordance with Rule 25 Order V the Code of Civil Procedure. It provides that a summons, in such a case, may be sent by the court by which it is issued, whether within or without the State, either by one of its officers or by post to any court having jurisdiction in the place where the defendant resides. (10) Service on defendant residing out of India. - Service on the defendant residing out of India and having no agent in India is to be effected in accordance with the provisions of Rule 25 of Order V of Code of Civil Procedure. It provides that where the defendant resides out of India has no agent in India and empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the court is situate.
"Provisions relating to pleadings in civil case are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."Rules Regarding Pleadings :- The Code of Civil Procedure lays down the following rules regarding pleadings of the parties:-
(i) Pleading must state the material facts on which the party relies and not evidence. [Order 1 rule 2(1)]
(ii) The facts should be stated in the form of a concise statement and shall be divided into paragraphs numbered consecutively. [Order VI Rule 2(2) C.P.C.]
(iii) In the pleadings, dates, sums and numbers shall be expressed in figures as well as in words. [Order VI Rule 2(3) C.P.C.]
(iv) In all cases in which the party relies on any misrepresentation, fraud, breach of trust, wilful default and undue influence and in all other cases in which particulars may be necessary, they should be stated with dates and items in the pleadings. [Order VI Rule 4 C.P.C.]
(v) Any condition precedent, the performance of occurrence of which is intended to be contested, shall be distinctly specified in the pleading by the plaintiff or defendant, as the case may be, and all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading and, therefore, such conditions need not be alleged specifically. [Order VI Rule 6 C.P.C.]
(vi) Where the contents of any document are material, it shall be sufficient in any pleadings to state the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material. [Order VI Rule 9 C.P.C.]
(vii) Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. [Order VI Rule 10 C.P.C.]
(viii) Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form of the precise term of such notice, or the circumstances from which such notice is to be inferred, are material (Order VI Rule 11 C.P.C.)
(ix) Whenever any contract or any relation between any person is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation, as a fact, and to refer generally to such letters, conversations or circumstances without setting them out in detail. [Order VI Rule 12 C.P.C.]
(x) Facts which the law presumes need not be pleaded. [Order VI Rule 13]
(xi) Legal pleas such as estoppel, limitation and res judicata may be pleaded.
(xii) Every pleading shall be signed by the party and his pleader, if any. [Order VI Rule 14 C.P.C.]
(xiii) Every pleading shall be verified at the foot by the party or by one of the parties pleadings [Order VI Rule 15 C.P.C.]
"The court may at any stage of proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."Civil Procedure Code (Amendment) Act, 2002 has inserted proviso to Rule 17 of Order 6 of Code which says :-
"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial."So the object of the Rule is that the courts should try the merits of case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to other side. Therefore main points to be considered before a party is allowed to amend his pleadings are: Firstly whether the amendment is necessary for determination of real question in controversy and secondly can the amendment be allowed without injustice to other side. However in following cases, court is justified in refusing to amend pleadings :-
(a) Leave to amend will be refused where the amendment is not necessary for the purpose of determining the real question in controversy.
(b) Leave to amend will be refused if it introduces a totally different and a new and inconsistent case or changes the fundamental character of case.
(c) Leave to amend will be refused where the effect of proposed amendment is to take away from other side a legal right accrued in his favour by lapse of time or when leave to amend pleadings is not made in good faith.Recently Supreme Court in B.K.N. Pillai v. P. Pillai, AIR 2000 SC 614 has observed:-
"All amendments of pleadings should be allowed which are necessary for determination of real controversy in suit provided proposed amendment does not alter or substitute new cause of action or proposed amendment should not cause such prejudice which cannot be compensated by cost"
(a) Name of the court in which suit is brought.
(b) Name , description and place of residence of Plaintiff(s) and Defendant(s)
(c) Facts constituting the cause of action and when it arose.
(d) Facts showing that court has jurisdiction.
(e) Statement of value of subject matter of suit for the purpose of court fee
(f) Relief claimed by Plaintiff.
(g) Where the Plaintiff or Defendant is minor or person of unsound mind, statement to this effect.
(h) Where Plaintiff has allowed set off or relinquished any portion of his claim, the amount so allowed or relinquished
(i) If subject matter of suit is immoveable property, description of such property for identity
(j) If the suit is time barred , the grounds upon which the exemption from law of Limitation is claimed.In view of Civil Procedure Code (Amendment) Act 2002, Rule 9 of Order 7 has been amended, now, it provides -
"PROCEDURE ON ADMITTING PLAINT : Where the court orders that the summons be served on defendants in the manner provided in Rule 9 of Order 5, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons on defendants."Order 7 Rule 10 C.P.C says that where at any stage of suit, court finds that it has no jurisdiction either teritorrial or pecuniary or with regard to subject matter of suit, it will return the plaint to be presented to proper court. Order 7 Rule 11 says that Plaint will be rejected in following cases :
(a) Where plaint does not disclose the cause of action.
(a) Where relief claimed is under valued and valuation is not corrected within the time fixed by court.
(c) Where plaint is insufficiently stampped and plaintiff fails to pay requisite court fee fixed by court.
(d) Where suit appears to be barred by Law.
Following ground were added vide Amendment Act of 1999 and 2002, in Rule 11 of Order 7 one ground is added as :-
(e) Where it is not filed in duplicate
(f) Where plaintiff fails to comply with provisions of Rule 9 WRITTEN STATEMENT : Written statement is pleading of defendant wherein he deals with every material fact alleged by plaintiff in his plaint and also states any new fact in his knowledge and takes legal objections against the claim of plaintiff.Civil Procedure Code (Amendment) Act 2002 has amended Rule 1 of Order 8 of Code in following words :
"The defendant shall within 30 days from the date of service of summons on him, present a written statement of his defence :
Provided that where defendant fails to file the written statement within said period of thirty days, he shall be allowed to file the same on such other day as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."Order 8 Rule 1 to 5 and 7 to 10 C.P.C provides as to particulars to be contained in a written statement :
(a) Defendant may take any number of defences either simply or alternatively, even though they may be inconsistent provided they are maintainable at Law.
(b) New facts such as the suit is not maintainable or that transaction is either void or voidable and all such defences as , if not raised would take the plaintiff by surprise must be raised.
(c) Defendant is bound to produce all the documents in support of his defence or his claim to set-off or counter claim, which are in his possession.
(d) Where defendant wants to deny any allegation of fact in the plaint, he must do so clearly and specifically. Every allegation of fact in plain if not specifically or by necessary implication, shall be taken as admitted except as against a person under disability. Court may however require the proof of any such fact otherwise than by such admission.Vide Amendment Act of 2002 Sub-rule (3) is amended in Rule 1-A of Order 8 of Code as :-
"A document which ought to be produced in court by the defendant under this rule, but is not so produced shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit."Vide Amendment Act 2002, Rule 9 and 10 to Order 8 have been amended in following words -
"9. Subsequent pleadings - No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
10. Procedure when party fails to present written statement called for by Court - Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce the judgment against him, or make such order in relation to the suit as it thinks fit and on the prouncement of such judgment a decree shall be drawn up".
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is under valued and the plaintiff on being required by the court to correct the valuation within a time to be fixed by the court fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped and plaintiff, on being required by court to supply the requisite stamp-paper within a time to be fixed by the court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law.
(e) Where it is not filled in duplicate.
(f) Where the plaintiff fails to comply with the provisions of rule- 9.PROCEDURE ON REJECTION OF PLAINT (Rule-12) Where a plaint is rejected the judge shall record an order to that effect with the reasons for such order. Effect of rejection of plaint : Rule 13 If the plaint is rejected on any of the above grounds, the plaintiff is not thereby precluded from presenting a fresh plaint in respect of the same cause of action. An order rejecting a plaint is a "decree" within the meaning of Section 2(2) of the Code, and therefore, is appealable also.
(i) The suit must be for recovery of money :
(ii) the amount claimed to be set off must be an ascertained sum of money ;
(iii) it must be legally recoverable from the plaintiff, i.e., it is not barred by time etc.
(iv) it must not exceed the pecuniary limits of the jurisdiction of the court ;
(v) it must be recoverable by the defendant or by all the defendants, if there are more than one ;
(vi) it must be recoverable by the defendant from the plaintiff or all the plaintiffs, if there are more than one ;
(vii) both the parties must fill the same character as they fill in the plaintiff's suit.Equitable Set off Equitable set off means a set-off of an ascertained sum of money arising out of cross demands, arising out of the same transaction in cases of debits and credits, in cases in which cross demands arise out of the same transaction or are so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant driven to a cross suit, courts have allowed a set off even though the amount may be an unascertained sum and such set off are known as equitable set off. Legal set off has been recognized by Order VI Rule 6 of the Code of Civil Procedure and can be raised as of right but no provisions for equitable set off has been made in the Code of Civil Procedure and it cannot be claimed as a matter of right. Distinction Between Legal and Equitable Set off Following are the main distinctions between the legal and equitable set off -
(a) Legal set off is for an ascertained sum of money while equitable set off may be allowed in respect of an unascertained sum of money.
(b) In case of legal set off cross demand may or may not arise from the same transaction but in equitable set off, the cross demands must arise out from the same transaction.
(c) In case of legal set off, the court is bound to entertain and adjudicate upon it because it has been provided in Order 8 Rule 6 of Code and can be raised as of right while in case of equitable set off it is not obligatory on the part of the court to adjudicate upon it.
(d) In a legal set off, the amount claimed must be legally recoverable and not barred by limitation at the date of suit but claim by way of equitable set off can be allowed even if it is based by limitation on date of suit where there is a fiduciary relationship between plaintiff and defendant.
(e) For legal set off, court fee is to be paid but it is not to be paid in case of equitable set off.
(a) Suit must be for recovery of money.
(b) Sum of money must be ascertained.
(c) Such sum must be legally recoverable .
(d) It must be recoverable by defendant from plaintiff.
(e) It must not exceed the pecuniary limits of the court in which the suit is brought.
(f) Both the parties must fill in defendant's claim to set-off, the same character as they fill in plaintiff's suit.COUNTER CLAIM : Counter claim may be defined as claim made by defendant in the suit , against plaintiff. Thus counter claim is substantially a cross action. In Laxami Das v. Nana Bhai, AIR 1964 SC 11 Supreme Court. Held that right to make counter claim as statutory right and held that court has power to treat the counter claim as cross suit and hear the original suit and counter claim together if counter claim is properly stamped. Vide Amendment Act 1976 Rule 6-A to 6-G were added in Order 8 C.P.C. Rule 6-A(1) provides that defendant may set up by way of counter claim against the claim of plaintiff any right or claim in respect of cause of action occruing to defendant against plaintiff either before or after filing of suit but before the defendant has delivered his defence or before the time fixed for delivery of his defence has expired. SET-OFF and COUNTER CLAIM -- DISTINCTION (a) Set-off is statutory defence against plaintiff's action and couter claim is substantially a cross action. (b) Set-off must be for ascertained sum or it must arise out of same transaction , a counter claim need not to arise out of the same transaction. (c) In case of Set-off the amount must be recoverable at the date of suit, while in case of counter claim the amount must be recoverable at the date of filling written statement. (d) When defendant demands in a plaintiff's suit an amount below or upto that of suit, it is Set-off but when it is for larger amount, the claim for excess amount is counter claim.
(a) the summons is not served upon the defendant in consequence of failure of the plaintiff to pay the court fee or postal charges, if any, chargeable for such service or to present copies of the plaint or concise statement as required by Rule 9 of Order VII of the Code of Civil Procedure (Order IX Rule 2 C.P.C.)
(b) neither party appears when the suit is called for hearing (Order IX Rule 3 C.P.C.)
(c) After a summons has been issued to the defendant or to one of several defendants, and returned unserved, the plaintiff fails for a period of one month from the date of the return, to apply for the issue of a fresh summons unless the plaintiff has within the said period satisfied the court that (i) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or (ii) such defendant is avoiding of process or (iii) there is any sufficient cause for extending the time (Order IX Rule 5 C.P.C.)
(d) The defendant appears and the plaintiff does not appear when the suit is called out for hearing unless the defendant admits the claim or part thereof (Order IX Rule 8 C.P.C.).
Q. 44 B was in occupation of a house belonging to A. In March 1981, A had filed suit for possession alleging that B was a trespasser in the house. The suit was contested by B who pleaded that he had become the owner of the house by adverse possession. The suit was fixed for hearing on 15th July, 1981, on which date B appeared in the court but A was unable to attend and the suit was dismissed in default. On the 10th December 1981, B died leaving behind his widow C. In January 1982, A brought a suit against C alleging the she is in illegal possession of the house and praying that a decree for possession he passed against her. Advise C if the suit is barred. Give reasons.
(1) Where a suit is wholly or partly dismissed under Rule-8 the plaintiff shall be precluded from bringing a fresh suit in respect of same cause of action. But he may apply for an order to set the dismissal aside and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit."So in view of provisions of Order 9 Rule 9 second suit can not be brought when first has been dismissed under Rule 8, on same cause of action. In the case in hand, it is admitted fact that A's earlier suit against B was for possession on the ground that B was trespasser. That suit was dismissed under Order 9 Rule 8 as A could not appear in court on 15th July 1981. So A is precluded from bring a suit again on same cause of action in view of Order 9 Rule 9. The expression "Cause of Action" means all those facts which are necessary for a plaintiff to prove in a suit to get judgment of court in his favour or every one of those facts which if not proved would give the defendant the right of judgment of court. In Mohd. Khallil Khan and Others v. Mehbub Ali Mian 75 I.A. 121 the Privy Council had observed:- "In considering whether the cause of action in subsequent suit is the same or not as the cause of action in previous suit the tests to be applied is: are the causes of action in two suits in substance - not technically - identical." In case in hand plaintiff `A' had filed the earlier suit for possession of house against B, which was dismissed in default. Thereafter A never filed any application for setting aside the order of dismissal of suit. Later B died leaving behind his widow `C'. A has again filed suit against C for possession of that very house on the ground that he is owner of suit property and widow C is trespasser therein. Such suit attracts Art. 65 of Limitation Act and onus is on C to establish that she was in adverse possession of said property. Now question is whether C can take the same plea which B had taken in earlier, it is well established that the expression "the possession of defendant" under Article 65 includes also the possession of person from or through whom the defendant derived his liability to be sued and as such defendant is entitled to take his possession with that of his predecessor-in-interest for the purpose of computing the statutory period of limitation. Applying the aforesaid law to the facts of case in hand it is clear that defendant C is claiming her right to adverse possession through her late husband B and the necessary conclusion is that the cause of action in both the suits is same and thus present suit of A against C is barred by Order 9 Rule 9 C.P.C.
Q. 45 In an eviction proceedings, 27-5-1989 was fixed for evidence of landlord and 2-6-89 for evidence of tenant. On 27-5-89 neither tenant nor his counsel appeared at hearing. The court recorded evidence of landlord and passed ex-parte eviction order. Same day tenant applied for setting aside the exparte order alleging that he was ill and his counsel had forgotten mentioning the case in his diary. He filed his affidavit but did not file medical certificate and diary and affidavit of counsel. The landlord rebutted his allegation on affidavit. Decide the application ?
(a) He can apply to court by which such decree is passed to set it aside (Order 9 Rule 13).
(b) Prefer appeal against such decree (Section 96(2)).
(c) Apply for review (Order 47 and Section 114).
(d) File suit on ground of fraud.That being the legal position, coming now to case in hand, it is admitted that 27-5-89 was fixed for evidence of landlord and 2-6-89 was fixed for recording evidence of tenant. However on 27-5-89 defendant (tenant) did not appear nor his counsel appeared in court and thus court proceeded ex-parte and after recording plaintiff's evidence passed ex- parte eviction decree against tenant on 27-5- 89. On that very day i.e. 27-5- 89 tenant applied under Rule 13 Order 9 for setting aside above said ex-parte eviction decree on the ground that he was ill and his counsel had forgotten to mention the case in his diary. Rule 13 of Order 9 C.P.C. provides that if defendant satisfies the court that he was prevented by "sufficient cause" from appearing on date of hearing of case, court will set aside decree passed against him. However expression "sufficient cause" has not been defined. Thus every case has to be seen in light of peculiar facts of case. Supreme Court recently in G.P. Srivastva v. R.K. Raizada AIR 2000 SC 1221 has held :-
"Under Order 9 Rule 13 C.P.C., an exparte decree passed against defendant can be set aside upon the satisfaction of court that either summons were not duly served upon defendant or he was prevented by "sufficient cause" from appearing when suit was called for hearing. Words "was prevented by sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between parties. "Sufficient cause" for the purpose of O. 9 R. 13 CPC has to be construed as elastic expression for which no hard and fast Rule can be laid down."Keeping in view above observations, coming now to case in hand - Defendant has taken the plea that he was lying ill on date of hearing of suit i.e. 27-5-89 for which he has filed Affidavit though has not produced any Medical Certificate to substantiate his plea and it is also pleaded that his counsel forgot to mention the case in Diary and therefore his counsel could not appear. To prove this fact, Affidavit of counsel and diary is produced. Plaintiff by way of Affidavit has rebutted the plea taken by defendant. Considering the facts and keeping in view the observations of Supreme Court in this regard it can be said that defendant had a "sufficient cause" which prevented him from appearing in court on relevant date. We should not insist on strict proof of fact of illness of defendant and thus his application under Rule 13 of Order 9 C.P.C. deserves to be accepted and ex-parte eviction decree should be set aside.
"In deciding whether a suit dismissed for default be restored, what has really to be considered is whether the plaintiff was really trying to appear on the day fixed. If sufficient cause is shown by the plaintiff for his non- appearance court may restore the suit. What is "sufficient cause" depends upon facts and circumstances of each case and liberal and generous construction should be adopted to advance the cause of justice and restoration should not ordinarily be denied."
(i) Discovery by interrogatories;
(ii) Discovery documents.(i) Discovery By Interrogatories ; Order XI Rule 1 of the Code of Civil Procedure deals with discovery of interrogatories and it provides that in any suit the plaintiff or defendant, by leave of the court, may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such person is required to answer :
Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose :
Provided also that interrogatories which do not relate to any matter in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible in the oral cross-examination of a witness.Rule 2 of Order XI of the Code of Civil Procedure provides that on an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court. In deciding upon such application, the court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents releating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories has been laid down in Raj Narain v. Indira Gandhi, AIR 1972 SC 1302, it was observed that interrogatories can be allowed whenever the answer to them will serve either to prove the case of party administering tthe interrogatories or to destroy the case of his adversary. The right is a valuable one and the party should not lightly be deprived of that right and must be exercised liberally as to shorten litigation, save expenses and serve the ends of justice. Rule 6 of Order XI of the Code of Civil Procedure deals with the objections to interrogatories. It provides that any objection to answer any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bonafide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, (or on the ground of privilege, of on any other ground) may be taken in the affidavit in answer. According to Rule 8 of Order XI of the Code interrogatories shall be answered by affidavit to be filed within 10 days or within such other time as the court may allow. Discovery of documents ; Rules 12 to 14 of Order XI of the Code of Civil Procedure deal with the discovery of documents. All documents relating to the matters in issue in the possession or power of any adversary can be inspected by means of discovery of documents. Rule 12 of Order XI of the Code of Civil Procedure provides that any party may, without filing any affidavit, apply to the court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the court may either refuse or adjourn the same, if satisfied that such discovery is not necessary or not necessary at the stage of the suit, or make such order, either generally or limited to certain classes of documents, as may in its discretion to thought fit, provided that discovery shall not be ordered when and so far as the court shall be opinion that it is not necessary either for disposing fairly of the suit or for saving costs. Rule 13 of Order XI of the Code of Civil Procedure provides that the affidavit to be made by a party against whom an order for making discovery of documents is made by the court shall specify which of the documents therein mentioned he objects to produce and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require. It has further been provided in Rule 14 of the said Order that it shall be lawful for the court, at any time, during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the court shall think right; and the court may deal with such documents, when produced, in such manner as shall appear just.
(a) issues of fact
(b) issues of lawSub-rule (5) of Rule 1 of Order 14 of the Code of Civil Procedure further provides that at the first hearing of the suit, the court shall, after reading the plaint and the written statements, if any, and (after examination under Rule 2 of Order X and after hearing the parties or their pleaders) ascertain upon what material propositions of fact or of law, the parties are at variance, and shall thereupon proceed to frame and record those issues on which the right decision of the case appears to depend. In Sita Ram v. Radha Bai, AIR 1964 SC 497, it was observed that "issues" are the backbone of a suit. Framing of issue has a very important bearing on the trial and decision of case. Firstly because it is issues framed and not the pleadings that guide the parties in matter of leading evidence. Secondly the court cannot refuse to decide the point on which issue has been framed. Thirdly court should not frame issue which does not arise in pleadings. MATERIALS FOR FRAMING ISSUES According to Order 14 Rule 3 of the Code the court may frame the issues from all or any of the following materials :-
(a) allegations made on oath by the parties, or by any person present on their behalf, or made by the pleaders of such parties ;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit ;
(c) the contents of documents produced by either party :In addition to the said material the other material which may be considered in framing issues are the answer to interrogatories statements made by parties or their representatives, when examined under Order X of the Code of Civil Procedure and examination of a witness or any document ordered to be produce under Order XIV of the Code of Civil Procedure. Rule 4 of order XIV of the Code of Civil Procedure provides that where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it may adjourn the framing of the issue to a future day, and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is, by summons of other process.
(a) issue a warrant, with or without bail, for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding Rs. 500; or
(d) order him to furnish security for his appearance and in default commit him to civil prison.The court may, where a person to whom summons has been issued fails to comply with it, without lawful excuse, issue a proclamation requiring him to attend at a time and place named therein before inflicting the penalities mentioned above. No court of small causes shall, however, make an order for the attachment of immovable property. (Order 16, Rule 10) Where the person appears after the attachment of his property and satisfies the court that he did not fail to comply with the summons without lawful excuse or did not intentionally avoid service, or that he had no notice of the proclamation, the court may release the property from attachment. If the person, however, does not appear or appears but fails to satisfy the court, the court may impose upon him fine not exceeding Rs. 500, having regard to his condition in life and the circumstances of the case and attach and sell his property for the recovery of the same. (Order 16, Rules 11 and 12). Consequence of refusal of party to give evidence - Where any party to a suit present in court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document, then and there in his possession or power, the court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. (Order 16, Rule 20)
"No such adjournment shall be granted more than three times to a party during hearing of the suit."So right of adjournment on showing sufficient cause has been limit to three times, so that suit may be dispossed off expeditiously and no party to suit should seek adjournment as a delaying tactic. Sub-rule (2) of Rule 1 of Order 17 of the Code of Civil Procedure further provides that in every such case the court shall fix a day for the further hearing of the suit; and may make such order as it thinks fit with respect to the costs occasioned by the adjournment. Order 17 Rule 3 of the Code of Civil Procedure deals with the power of the court to proceed with the case, notwithstanding either party fails to produce evidence. It provides that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default -
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is absent, proceed under Rule 2.The main distinction between rule 2 and 3 of Order XVII of the Civil Procedure Code is that a decree passed against the defendant under Rule 3 will not be an exparte decree which can be set aside under Order IX Rule 13 of the said Code while a decree passed under Rule 2 can be set aside under Order IX rule 13 of the Code if the necessary requirements are fulfilled.
Provided that where documents are filled and the parties rely upon the documents, the proof and admissibility of such documents which are filled along with affidavit shall be subject to the order of the court."So in order to expedite the trial of suit, provision for furnishing examination-in-chief of witnesses on affidavit has been made. Rule 4(2) says : 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 either by the court or by the commission appointed by it :
Provided that the court may, while appointing a commission under this sub- rule, consider taking into account such relevant factors as it thinks fit."
Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded and due notice of the day so fixed shall be given to the parties or their pleaders".So maximum time limit for pronouncing the judgment after hearing of the case is 60 days. Rule 1(2) of Order 20 says where a written judgment is to be pronounced, it shall be sufficient if the findings of the court on each issue and final orders passed in the case are read out and it shall not be necessary for the court to read out whole judgement. When Judgement may be Altered or Modified Order 20 Rule 3 of C.P.C. provides -
"The judgment shall be dated and signed by the in open court at the time of pronouncing it and when once signed, shall not after wards be altered or added, save -
(a) to correct clerical or arithmetical mistakes or error due to accidental slips or omission (Section 152 C.P.C.)
(b) On Review (Section 114 C.P.C.)So any alteration or addition in judgment is permissible so long as it is not signed by the Judge in open court, once it is signed no alteration or addition can be done except to correct clerical or arithmetical mistakes or accidental slips as contemplated under section 152 of Code or upon Review Recently In Jaya Laxami Coelho v. Oswald Josph Coelho, AIR 2001 SC 1084 Supreme Court observed :
"In terms of Section 152 C.P.C. any error occurred in the decree on account of airthmetical or clerical error or accidental slip may be rectified by court..........In a matter where it is clear that something which court intended to do but the same was accidently slipped or any mistake creeps in due to clerical or arithmetical mistake, it would only advance the end of justice to enable to rectify such mistake. But before exercise of such power the court must be legally satisfied, that court must have in its mind that Decree or Order should be passed in particular manner but that intention is not translated into the Decree or Order due to clerical, arithmetical error or accidental slip."CONTENTS OF JUDGEMENT Order Rule 4 of the Code of Civil Procedure deals with the contents of the judgment also. Sub-rule (2) of Rule 4 of Order, 20 of the Code of Civil Procedure provides that judgments of courts, other than Small Cause Court, shall contain -
(a) a concise statement of the case,
(b) the points for determination,
(c) the decision thereon and
(d) the reasons for the decision.Sub-rule (1) of Rule 4 of Order 20 of the Code of Civil Procedure also provides that judgments of a Court of Small Causes shall not contain more than the points for determination and the decision thereon. Rule 5 of the said Order also provides that in suits in which issues have been framed, the court shall state its finding or decision with the reasons therefor, upon each separate issue, unless the finding, upon any one or more of the issues, is sufficient for the decision of the suit. Rule 5-A of the said Order which has been inserted by Amendment Act No. 104 of 1976, also lays down that except where both the parties are represented by pleaders, the court shall, when it pronounces its judgment in a case subject to appeal, inform the parties present in court as to the court to which an appeal lies and the period of limitation for the filling of such appeal and place on record the information so given to the parties. Rule 6-A (1) of the said Order also lays down that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment.
(1) General costs - Section 35 ;
(2) Miscellaneous costs - Order 20-A ;
(3) Compensatory costs for false or vexatious claims or defences - Section 35-A ; and
(4) Costs for causing delay - Section 35-B.(1) General costs : Section 35 (a) Object. - Section 35 deals with general costs. The object in awarding costs to a litigant is to secure to him the expenses incurred by him in the litigation. It neither enables the successful party to make any profit out of it nor punishes the opposite party. (b) Principles. - The primary rules in respect of award of general costs are as under :
(i) Costs are in the discretion of the court. The said discretion, however, must be exercised on sound legal principles.
(ii) Normally, costs should follow the event and the successful party is entitled to costs unless there are good grounds for depriving him of that right. Even a successful party may be deprived of the costs if he is guilty of misconduct or there are other reasons to do so. Sub-section (2) of Section 34, however, expressly provides that when the court orders that costs should not follow the event, it must record reasons for doing so.(2) Miscellaneous costs : Order 20-A Order 20-A makes specific provision with regard to the power of the court to award costs in respect of certain expenses incurred in giving notices, typing charges, inspection of records, producing witnesses and obtaining copies. (3) Compensatory costs : Section 35-A (a) Object. - Section 35-A provides for compensatory costs. This section is an exception to the general rule on which Section 35 is based; viz. that the "costs are only an indemnity, and never more than indemnity". This section is intended to deal with those cases in which Section 35 does not afford sufficient compensation in the opinion of the court. Under this provision, if the court is satisfied that the litigation was inspired by vexatious motive and altogether groundless, it can take deterrent action. This section applies only to suits and not to appeals or to revisions. (b) Conditions. - The following conditions must exist before this section can be applied :
(1) the claim or defence must be false or vexatious ;
(2) objections must have been taken by the other party that the claim or defence was false or vexatious to the knowledge of the party raising it ; and
(3) such claim must have been disallowed or withdrawn or abandoned in whole or in part.
The maximum amount that can be awarded by the court is Rs 3000.
(4) Costs of causing delay : Section 35-BSection 35-B is added by the Amendment Act of 1976. It is inserted to put check upon the delaying tactics of the litigating parties. It empowers the court to impose compensatory costs on the parties who are responsible for causing delay at any stage of the litigation. Such costs would be irrespective of the ultimate outcome of the litigation. The payment of costs has been a condition precedent for further prosecution of the suit, if the party concerned is a plaintiff and the defence, if he is a defendant. The provisions of this section are mandatory in nature and, therefore, the court should not allow prosecution of suit or defence, as the case may be, in the event of party failing to pay costs as directed by the court. If however the party is unable to pay costs due to unavoidable circumstances such as strike of advocates or staff, etc., court can extend the time.
(i) Court of first instance by which decree is actually passed;
(ii) The court of first instance in the case of decree passed by appellate court;
(iii) Where the court of first instance has ceased to exist the court which would have jurisdiction to try the suit at the time of execution;The execution proceedings can be started only after the delivery of judgment by the court and preparation of the decree. All proceedings in execution are started by an application for execution which can be oral or written, as the case may be. Rules 10 and 11 of Order XXI of the Code of Civil Procedure deal with the applications for execution. Rule 10 provides that where the holder of a decree desires to execute it, he shall apply to the court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions herein before contained to another court, then, to such court or to the proper officer thereof. Rule 11(1) of the said Order deals with the oral application for execution and it lays down that where a decree is for the payment of money, the court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment debtor, prior to the preparation of a warrant, if he is within the precincts of the court. Then Sub-rule (2) to Rule 11 of Order 21 of Code says that save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writting signed and verified by the applicant and shall contain particulars as provided in sub-rule (2) Rules 11-A to 13 of Order 13 deal with certain specific applications for execution. Rule 11-A provides that where an application is made for arrest and detention of judgment debtor, it shall state, or be accompanied by an affidavit, stating the grounds on which arrest is applied for. Rule 12 deals with application for attachment of moveable properties not in possession of judgment debtor, which require decree holder to attach with application, an inventory of property and their accurate descriptions Rule-13 of Code then deals with application for attachment of immovable properties belonging to judgment debtor and it also requires that application shall contain full description of property with boundaries etc. for proper identification and also proof of judgment debtor's ownership or his share in it. Notice of execution Notice is not to be issued to the party against whom execution application is filed in every case but only in certain cases mentioned in Rule 22 of Order XXI of the Code of Civil Procedure. According to it, show cause notice is to be issued in the following cases :-
(i) Where an application for execution is made more than two years after the date of decree;
(ii) Where an application for execution is made against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of Section 44-A of the Code of Civil Procedure;
(iii) Where an application for execution is made against the assignee or receiver in insolvency where the party to the decree has been adjudged to be an insolventy.Show cause notice can also be issued by the Court if the execution has been sought by arrest and detention of the judgment-debtor in view of the provisions of Order XXI Rule 37 of the Code of Civil Procedure.
"(1) All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to execution, discharge or satisfaction of decree shall be determined by court executing the decree not by a separate suit.
(2) (* * * *)
(3) Where a question arises as to whether any person is or is not representative of a party, such question shall, for the purpose of this Section be determined by the court.Explanation I - For the purposes of this Section , a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II - (a) For the purposes of this Section , a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and Explanation II (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this Section . The underlying object of this provision is to provide cheap and expeditious remedy for determination of certain questions in execution proceedings without recourse to a separate suit and to prevent needless and unnecessary litigation.So the executing court can go into all question between the parties relating to execution, discharge or satisfaction of decree and as such court has no power to amend, modify or substitute a decree or in other words can not go behind the decree. Although An executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general Rule and that is that where the decree sought to be executed is nullity for the lack of inherent jurisdiction in court passing it its invalidity can be set up in an execution proceeding. The executing Court can therefore entertain an objection that the decree is nullity and can refuse to execute the decree. In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340,it was observed: It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that is invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings.
Q. 59 A is survived by his widow, daughter, sister and four brothers. On a partition suit filed by B, one of the brothers of deceased A, the disputed property fell to the share of C, the daughter of A. During the pendency of partition suit filed by B, B was appointed receiver of entire estate of A. In this capacity B inducted D as a tenant and took some advance from D but the possession of whole of leased premises was not given to D. So D filed suit against B for recovery of amount of advance. This suit was decreed against B and his estate. In execution of this decree D purchased the suit land belonging to C in auction and then transferred it to some other persons without any notice to B. C filed suit for recovery of possession of her land. Suit was resisted by D and his transferee on the ground inter-alia that same is barred by Section 47 C.P.C. decide whether the bar created by Section 47 C.P.C. will apply to suit filed by C.
(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.
(2) * * *
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section, be determined by the court.Explanation I - For the purposes of this Section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II (a) For the purposes of this Section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and Explanation II(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this Section . The underlying object of this provision is to provide cheap and expeditious remedy for determination of certain questions in execution proceedings without recourse to a separate suit and to prevent needless and unnecessary litigation. In order that this Section may apply, the following conditions must be satisfied -
(i) the question must be one arising between the parties to the suit in which the deree is passed, or their representatives; and
(ii) it must relate to the execution, discharge or satisfaction of the decree.In the case in hand, during pendency of partition suit, B was appointed as receiver of estate of A and in that capacity B inducted D as tenant to suit land which fell in the share of C. B had taken advance from D, when D could not get the possession of leased property. D filed suit against B which was decreed against B and his estate and not against the estate of A, therefore suit property which had fell in share of C (A's daughter) did not come in B's estate. In the execution of decree passed against B, share of C was not liable for satisfaction of said decree. It is also important that suit filed by D for recovery of advanced by him, against B, C was not party in that suit. Therefore, none of the above said conditions apply for application of Section 47 C.P.C. Therefore suit of C is not barred by Section 47.
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other court, or
(b) if such person has no property within the local limits of the jurisdiction of the court which passed the decree, sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the court which passed it, or
(d) if the court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other court.The Court which passed a decree, may of its own motion send it for execution to any subordinate court of competent jurisdiction. For the purposes of this section, a court shall be deemed to be a court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such court would have jurisdiction to try the suit in which such decree was passed. Powers of the Court to which a decree is transferred for execution Section 42 of the Code of Civil Procedure deals with the powers of transferee court. It provides that the court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the decree shall be punishable by such court in the same manner as if it had passed the decree. Section 42(2) of Code says powers of transferee court shall include the following powers of the court which passed the decree, namely :-
(a) Power to send decree for execution to another court under section 39
(b) Power to execute the decree against the legal representative of the deceased judgment debtor under section 50
(c) Power to order attachment of a decreeAccording to Section 42(4) of Code, transferee court cannot exercise the following power :-
(a) Power to order execution at the instance of the transferee of the decree
(b) in the case of decree passed against a firm, power to grant leave to execute such decree against any person other that such a person as is referred to in clause (b) or (c) of sub-rule (1) of Rule 50 of Order 21.
(i) for the purposes of making an arrest under this section, no dwelling house shall be entered after sunset and before sunrise;
(ii) no outer door of a dwelling house shall be broken open unless such dwelling house is in the occupancy of the judgment debtor and he refuses, or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling house, he may break open the door of any room in which he has reason to believe the judgment debtor is to be found :
(iii) if the room is in the actual occupancy of a woman who is not the judgment-detor and who, according to the customs of the country, does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest.
(iv) where the decree in execution of which a judgment debtor is arrested, is a decree of the payment of money and the judgment debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.Order XXI Rule 37 of the Code of Civil Procedure deals with the discretionary power of the court to issue Show Cause Notice to the judgment debtor against detention in prison. It provides that where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on a day to be specified in the notice and show cause why he should not be committed to the civil prison. Provided that such notice shall not be necessary if the court is satisfied by affidavit, or otherwise, that with the object or effect of delaying the execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the court. Sub-section (2) Rule 37 lays down that where appearance is not made in obedience to the notice, the court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment debtor. Sub-section (3) of section 55 of the Code of Civil Procedure also lays down that where a judgment debtor is arrested in execution of a decree for the payment of money and brought before the court, the court shall inform him that he may apply to be declared an insolvent, and that he may be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force. Section 56 of the Code of Civil Procedure provides that a woman shall not be arrested in execution of decree in payment of money. Section 57 of the Code of Civil Procedure deals with the subsistence allowance payable by the decree holder for the subsistence of the judgment debtor. According to it, the State Government may fix scales graduated according to rank, race and nationality of such monthly allowance. Period of Detention Section 58 of the Code of Civil Procedure deals with the period of detention. According to it every person detained in the civil prison in execution of a decree shall be so detained -
(a) where the decree is for the payment of a sum of money exceeding one thousand rupees, for a period not exceeding three months, and
(b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees, for a period not exceeding six weeks.How Released
Provided that he shall be released from such detention before the expiration of the said period of detention -
(i) On the amount mentioned in the warrant for his detention being paid to the officer incharge of the civil prison or
(ii) On the decree against him being otherwise fully satisfied or
(iii) On the request of person on whose application he has been so detained or
(iv) On omission to pay subsistence allowance by person on whose application he was so detained
Provided also that he shall not be released from such detention under clause (ii) or (iii) without the order of the court.
Provided that no such claim or objection shall be entertained -
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the court considers that the claim or objection was designedly or unnecessarily delayed. [Order 21, Rule 58(1)].All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under Rule 58 and relevant to the adjudication of the claim or objection, shall be determined by the court dealing with the claim or objection and not by a separate suit. [Order 21, Rule 58(2)]. Upon the determination of the questions referred to in Sub-rule (2), the court shall, in accordance with such determination, - (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit. [Order 21, Rule 58(3)]. Where a claim or an objection is preferred and the court, under the proviso to Sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive. [Order 21, Rule 58(5)]. In Canara Bank v. Gurmukh Singh AIR 2000 Del. 48, it was observed:
"......... After the introduction of Amendment Act in 1976 Order 21 contemplates an adjudictaion . It is now necessary that objection filed under Order 21 Rule 58 should not be disposed of summarily. Wherever objection are filed under these provisions , these must be heard and disposed of by a procedure akin to that which obtains the disposal of a suit ......... It is open to a party to adduce evidence to prove his claim and there is nothing in the Section to make the court to adopt summary procedure when dealing with an application under order 21 Rule 58. Sub-section (4) to Rule 58 makes it clear that order under this provision shall have staus of decree."The object of the Rule is to secure a speedy settlement of the question of title raised at an execution sale. It gives the claimant a speedy and summary remedy. The court is bound to decide the question of possession when an objection is made to attachment of the property in execution of a decree. On the question of possession the onus is on the claimant or objector.
"When a party to a suit dies the first question to be decided is whether the right to sue survives or not ? If it does not, there is an end of the suit, if it does, the suit will not abate... The Expression "Right to sue "may be interpreted to mean Right to seek relief, general rule is that all rights of action and all demands whatsoever existing in favour of or against a person at the time of his death survive to or against his representatives."Rules 1 to 6 of Order 22 provide as to consequences, in case of death of party to suit. Rule 2 says `where there are more plaintiffs or defendants than one and any of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect, to be made on record and suit shall proceed at the instance of surviving plaintiff(s) or against surviving defendant(s) as the case may be. Rule 3 says where one of two or more plaintiffs dies and the right to sue does not survive to surviving plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and right to sue survive, the court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Where within the time limited by law (i.e. within 90 days of death), no application is made, the suit shall abate so far as the deceased plaintiff is concerned. Rule 4 then lays down that where one of two or more defendant dies and right to sue does not survive against the surviving defendant or defendants alone, or where sole defendant or sole surviving defendant dies and right to sue survives, the court on an application made in that behalf shall cause the legal representatives of deceased defendant to be made party and proceed with the suit. However where within the time limited by law (i.e. 90 days of death) no application is made the suit shall abate against the deceased defendant. Rule 4(4) of Order 22 however provide that court, whenever it think fits exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file written statement or who having filed it, has failed to appear and contest the suit at the hearing and the judgment may in such case be pronounced against said defendant notwithstanding the death of such defendant and shall have same effect and force as if it has been pronounced before his death. Rule 4(5) says where the plaintiff was ignorant of death of defendant and could not for that reason make an application for substitution of legal representative of such defendant within the prescribed period and the suit is abated, plaintiff may make an application for setting aside such abatement and in considering the said application the court shall have due regard to the fact of such ignorance of plaintiff. In Dhurandhar Prasad v. Jai Parkash University and other, AIR 2001 SC 2552, it was observed by Supreme Court that Order 22 Rules 3 and 4 prescribe procedure in case of devolution of interest on death of party to suit. It says if party dies and right to sue survives, court on application made in this behalf, is required to substitute legal representatives of deceased party, but if such application is not filled within time prescribed, suit shallabate so far as deceased party is concerned, whereas rule 10 of Order 22 C.P.C. provides for cases of assignment, creation and devolution of interest, other than those referred to in foregoing rules. In cases covered under rules 384 if right to sue survives and no application for bringing legal representatives of deceased of deceased party filled within time prescribed, there is automatic abatement of suit. In cases covered under Rule 10 legislature has not prescribed any such procedure.
Q. 66 Plaintiff came to know about death of defendant on 15-12-94 from remarks of process server on summons received in court unserved that defendant died on 1-6-94. He moved an application immediately for substitution of legal representative of deceased defendant. Would this application be allowed or rejected on the ground of expiry of period prescribed therefor ?
Q. 67 (a) What is the doctrine of restitution ? Has a court inherent power to grant restitution ? (b) A obtained a decree against. B for possession B filed an appeal against the decree and obtained stay of delivery. The appeal was allowed and the suit dismissed. Against the dismissal A preferred second appeal and that was allowed and decree of trial court was restored. A applied in restitution for mesne profits from the day of stay order of first appellate court to the date of the decree of second appellate court. Is A entitled to the mesne profits so claimed. (c) A obtained a decree exparte against B and in the execution of the decree brought the properties of B to sale and himself became the purchaser. On appeal by B, the appellate court set aside the decree and remanded the suit for re-hearing. Then B applied for restitution. While that application was pending, the suit was heard and again decreed. A then contended that as the suit had been decreed no restitution could be granted. Is B entitled to restitution ?
(a) restitution sought must be in respect of decree or Order which has been reversed or varied.
(b) the party applying for restitution must be entitled to benefit under the reversing decree or order.
(c) the relief claimed must be properly consequential on the reversal or variation of decree or order.If these conditions are satisfied, the court must grant restitution. In Bhagwanti Singh v. Lala Shri Kishan Das, AIR 1953 SC 136, it was observed: "The doctrine of Restitution is that on reversal of a judgment the law raises an obligation on the party to the restore who has received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and it is duty of court to enforce that obligation unless it is shown that restitution would be clearly contrary to real justice of case. Restitution Under Inherent Power : In Kavita Rehan (Mrs.) v. Balsara Hygiene Products Ltd. AIR 1995 SC 44 it was observed: "The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of case demands. It will be exercised under inherent power where the case did not strictly fall within the ambit of Section 144." Ans. (b) The court is competent to make orders as to mesne profits consequent upon an order of restitution and cannot refer the party to a separate suit. Court has ample power under section 144 C.P.C. to make restitution to party which has been deprived of fruits of its decree by an order of court at the instance of judgment debtor. Even though a party may not claim mesne profits, the same may be granted by way of restitution if on account of action of court a party is deprived of benefit of decree.The facts of the case in hand have been borrowed from a judgment in Inderam Mansa Ram v. Ramdin Bhagwant Prasad AIR 1961 M.P. 200 it was held :
"Where a party is deprived of possession of property due to an >order or decree of court below, which is later reversed or varied by appellate court, the court could under the power conferred by Section 144 place the party, who has been deprived of possession temporarily, in the position as if the reversed decree had not at all been passed." In view of above discussion, it can be held that A is entitled to mesne profit from date of stay Order of first appellate court till the date of decree passed by second appellate court.Ans. (c) The object of restitution is to restore the status quo ante between the parties. The principle of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party what he has lost. In Binayak Swain v. Ramesh Chandra, AIR 1966 S.C. 948 it was held "Where in execution of an ex parte decree passed in appeal by the District Judge, the property of the judgment debtor is sold and purchased by the decree-holder himself and the decree of the District Judge is set aside by the High Court and the suit is remanded for re-hearing and fresh disposal, the judgment debtor is under Section 144 Civil P.C. entitled to restitution of his properties purchased by the decree-holder subject to equities to be adjusted which was set aside by the High Court is not validated by the passing of the application for restitution, judgment debtor was entitled to restitution because on that date the decree in execution of which the properties were sold had been set aside. He is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time when the application for restitution was made." It was observed by Supreme Court:- "...The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree, and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from...." In view of the above discussion the objection raised by A is not sustainable and B is entitled to restitution of his property.
Q. 68 (a) Discuss the procedure to be adopted by court in a suit by or against Government or Public officer. (b) A plaintiff gives notice under Section 80 of the Civil Procedure Code and institutes a suit before two months but is allowed to withdraw the same with liberty to file a fresh suit. Is he entitled to file a fresh suit without a fresh notice ? (c) Notice is given by A under Section 80 of the Civil Procedure Code of a proposed suit. A dies before the institution of the suit. Does the notice by A enure for the benefit of his legal representative ?
"---- Section has been enacted as a measure of public policy with the object of ensuring that before a suit against Government of Public officer is instituted in the court, the Government or Public officer concerned is afforded an opportunity to scrutinize the claim in respect of which the suit is proposed to be filed and if it is found to be just claim, to take immediate action and avoid unnecessary litigation."Notice under Section 80 should contain (a) Name, description and place of residence of plaintiff, (b) a statement of cause of action, (c) Statement of relief claimed, (d) Any other important information. Sub-section (2) to Section 80 provides that a suit may be instituted with the leave of court for obtaining urgent or immediate relief claimed against Government of Public officer in his official capacity without serving statutory notice. But in such case court shall not grant relief in the suit whether interim or otherwise except after giving to Government of Public officer as the case may be a reasonable opportunity of showing cause in respect of relief claimed. Order 27 C.P.C provides regarding procedure to be followed in such suit. Ans. (b) Section 80 of C.P.C. provide regarding giving of notice prior to filing any suit against government or public servant. Section 80 says no suit shall be instituted against Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered to Government or to such public officer. In Bihari Chowdhary v. State of Bihar AIR 1984 SC 1043 explaining the underlying object behind Section 80 Supreme Court observed:-
"...Section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the government or a public officer, the government or officer concerned is afforded opportunity to scrutinise the claim in respect of which suit is proposed to be filed and if it be found to be just claim, to take immediate action and thereby avoid unnecessary litigation.."However Sub-section (2) of Section 80 provides that a suit may be instituted with the leave of the court for obtaining an urgent or immediate relief against the government or any public officer in respect of any act purporting to be done by such public officer in his official capacity without serving a statutory notice. But in such a case, the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the government or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. In Amar Nath Dogra v. Union of India AIR 1963 SC 424: A fresh notice under Section 80, C.P.C. is not necessary where a suit is instituted but that is withdrawn with liberty to file a fresh suit. If the plaint which is being considered by the court has been preceded by a notice which satisfies the requirements of Section 80, C.P.C. then the fact that before the plaint then under consideration, there had been another plaint which had been filed and withdrawn cannot, on any principle be held to have exhausted or extinguished the validity of the notice issued. In view of the above discussion, a plaintiff can file a fresh suit without serving a fresh notice. Ans. (c) In Beohar Rajender Singh v. State of M.P. 1970(1) SCJ 118, it was observed: The object of the notice under Section 80, C.P.C., is to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of court. The Section is no doubt imperative; failure to serve notice complying with the requirements of the statute. But the notice must be reasonably construed. Supreme Court, in various case laws has adopted the Rule of substantive compliance in dealing with requirement of giving notice under section 80 C.P.C. A notice under section 80 should be held sufficient if it substantially fulfils its object of informing the parties concerned of the nature of the suit to be filed. In Ghanshyam Dass v. Dominion of India, 1984 A.W.C. 407 (SC): AIR 1984 SC 1004 Supreme Court held
"Where a notice under Section 80 given by the plaintiff's father reached the concerned department of the Dominion of India and it was replied by not accepting the claim of the father of the plaintiff, but before instituting the suit the plaintiff's father died, the suit by the legal heirs of the deceased without giving fresh notice under Section 80, C.P.C. is maintainable and the notice by the deceased will enure for the benefit of his legal heirs."In view of above discussion, it is clear that no fresh notice under section 80 of Code is required to be given by A's legal representative, after A's death when A had earlier given notice under section 80 before filing suit.
Q. 70 Discuss the validity of the following :
(a) decree against a major treating him as a minor;
(b) decree against a minor treating him as a major;
(c) decree in favour of a minor without a next friend;
(d) decree passed against a minor in a suit in which he is not represented by a guardian ad litem;
(e) decree passed against a person who is a minor at the date of the institution of the suit with a properly appointed guardian ad litem; he attains majority during the pendency of the suit, but no steps are taken to remove the guardian ad litem and the decree is passed against him as a minor.
Q. 71 Discuss the validity of the following :
(i) Decree against a person of unsound mind supposing him to be of sound mind.
(ii) Decree passed against a minor in a suit in which he is not represented by a guardian ad litem.
(iii) A person who was minor at the date of the institution of suit with a proper guardian ad litem, attains majority during the pendency of suit but no steps are taken to remove the guardian ad litem and a decree is passed against him as a minor.
(i) he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plain in such suit or
(ii) Where no such fee is prescribed, when he is not entitled to property worth one thousands rupees.In both the cases, the property exempt from attachment in execution of a decree and the subject matter of the suit should be excluded. APPLICATION (Rule 2) Every application for permission to sue as an indigent person should contain following particulars :-
(1) Particulars required in regard to plaints in suits.
(2) Schedule of moveable or immovable property belonging to applicant with estimated value thereof
(3) Signature and verification as provided in Order 6 Rules 14 and 15 C.P.C.The application is to be presented to the court by applicant in person unless appearance is exempted. Rule 1A of order 33 provides for initial enquiry into the means of applicant by officer of court. Rule 4 provides that where application is in proper form and duly presented, court may if it think fit examine the applicant and his agent regarding the merits of the claim and property of applicant. Rule 5 provides that the court may reject an application for permission to sue as an indigent person on the following grounds:-
(i) Where it is not framed and presented in the manner prescribed above.
(ii) Where the applicant is not an indigent person.
(iii) Where he has within 2 months next before the presentation of the application disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person :-
Provided that no application shall be rejected if even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person.
(iv) Where his allegations do not show a cause of action.
(v) Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter.
(vi) Where the allegations made by the applicant in the application show that the suit would be barred by any law for time being in force.
(vii) When any other person has entered into an agreement with him to finance the litigation.Rule 6 of Order 33 then says : Where the application is not rejected, the court shall fix a date for receiving evidence in proof or disproof of applicant's indigency. Rule 7 says that on the day so fixed the court shall examine the witnesses (if any) produced by either side and it shall also hear the arguments of parties and then either allow or refuse to allow the applicant to sue as an indigent person. Rule 8 says where the application is granted, it shall be numbered and registered and shall be deemed to be a plaint in the suit and the suit shall proceed in ordinary manner, except that the plaintiff shall not be liable to pay any court fees or process fees. Where the court rejects the application to sue as an indigent person, order of refusal bars a subsequent similar application, but the applicant may sue in the ordinary manner provided he pays the costs incurred by the government or opposite party in opposing such application.
(a) that the defendant, with intent to delay the plaintiff or to avoid any process of the court or to obstruct or delay the execution of any decree that may be passed against him.-
(i) has absconded or left the local limits of the jurisdiction of the court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the court, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof, or
(b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance :
Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim ; and such sum shall be held in deposit by the court until the suit is disposed of or until further order of the court.Where the defendant fails to show such cause the court shall order him either to deposit in court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending, and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last proceeding rule. (Order Rule 2 C.P.C.) Rules 3 and 4 of Order 38 of the Code of Civil Procedure deal with the procedure where the surety applies for being discharged and the defendants fail to furnish security or find fresh surety. Sub-rule (3) lays down that a surety for the appearance of a defendant may at any time apply to the court in which he became such surety to be discharged from the obligation and on such application being made, the court shall summon the defendant to appear or, if it thinks fit, may issue a warrant for his arrest in the first instance. On the appearance of the defendant in pursuance of the summons or warrant or, on his voluntary surrender, the court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security.
(a) is about to dispose of the whole or party of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court,the court may direct the defendant either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property of the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (Order 38, Rule 5(1)). The plaintiff shall unless the court otherwise direct specify the property required to be attached and the estimated value thereof. (Order 38, Rule 5(2)). The court can also order conditional attachment of whole or part of the property.
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends to, remove or dispose of his property with a view to defrauding his creditors,
(c) that the defendants threatens to dispossess the plaintiff or otherwise cause injury to him in relation to disputed property, the court may by order, grant a temporary injunction to restrain such act, until the disposal of the suit or until further orders.Rule 2. Injunction to restrain repetition or continuance of breach - In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgement, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. Scope - The power to grant temporary injunction is discretionary and the discretion has to be exercised judicially. The grant of temporary injunction pending the suit of permanent injunction is a very serious matter as it affects the rights of the person in possession of property and restricts him from using the same at his disposal just because a suit has been instituted in this respect. It is thus too serious a matter to be given a casual or routine treatment. It may be noted that application of temporary injunction is instituted only where regular suit for permanent injunction is pending before the same court with whom the application for temporary injunction has been instituted. Temporary injunction cannot be granted unless it appears that there are chances of success of the basic suit of permanent injunction. Where a permanent injunction cannot be given, generally no temporary injunction is allowed. Thus, grant of an ad interim injunction is an `extraordinary' thing. Guiding principles Before granting of the temporary injunction, the following conditions are required to be satisfied, namely :-
(i) prima facie the case is in favour of the plaintiff and against the defendant;
(ii) irreparable injury is likely to be caused to the plaintiff which cannot be compensated for in terms of money;
(iii) balance of convenience lies in favour of the plaintiff and against the defendant;
Q. 76 A constructed a house for B under an agreement. B revoked the agreement complaining that the work was incomplete, shoddy and grossly delayed. A filed suit for wrongful termination of contract and for recovery of Rs. 50 lacs allegedly outstanding for the work done. B also filed suit for recovery of Rs. 12 lacs allegedly overpaid and for permanent injunction. He filed an application for grant of ad-interim injunction under O. 39, Rules 1 and 2 CPC for restraining A from entering upon it. A resisting it contended that the construction is complete and it was wrongful on the part of B to revoke the agreement, that a huge sum is outstanding for the work done and he has a lien over the building, his licence cannot be revoked till his dues are paid and that grant of temporary injunction will amount to decreeing the suit itself. Decide B's ad-interim injunction application.
(a) Property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to suit or wrongfully sold in execution of a decree.
(b) Defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors.
(c) Defendant threatens to dispossess the plaintiff or otherwise cause injuries to plaintiff in relation to property in dispute in suit.Court may by order grant a temporary injunction to restrain such act or to make such order for the purpose of staying or preventing the wasting, damaging, alienation, sale or removal etc. or dispossession of plaintiff or otherwise causing injury to plaintiff in relation to property in dispute; as court think fit until the disposal of suit or further Orders. In Dorab Cawas Ji v. Coomi Sorah, AIR 1990 SC 867, it was observed : "Object of making an order regarding interim relief is to evolve a workable formula to the extent called for by demands of situation keeping in mind the pros and cons of matter and striking a delicate balance between two conflicting interests i.e. injuries and prejudice likely to be caused to plaintiff if relief is refused and injury and prejudice likely to be caused to defendant if the relief is granted. Underlying object of granting temporary injunction is to maintain and preserve status quo at the time of institution of proceedings and to prevent any change in it until the final determination of suit. "It was also observed - "The power to grant a temporary injunction is in discretion of court and before granting the injunction the court must be satisfied about following aspects:-
(i) First, applicant must make out a prima facie case in support of right claimed by him. Court must be satisfied that there is a bona fide dispute raised by applicant and there is probability of the applicant being entitled to relief claimed by him. So existence of prima facie right and infraction of such right is condition precedent to grant a temporary injunction.
(ii) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(iii) The balance of convenience is in favour of one seeking such relief.Being essentially an equitable relief the grant or refusal of temporary injunction shall ultimately vest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. In United State of America v. Master Builders, 1991 DLT 719 , it was observed: "If the owner in building contractor terminates the contract and revokes the licence, the contractor cannot seek relief to be authorised to continue the work under contract and court will not that way indirectly grant specific performance of agreement. The owner cannot be forced to continue to employ a contract with whom he is at logger heads. Similarly a contractor cannot be forced to work for owner whose contract has been terminated even though wrongfully. As regards the plea of lien, it was observed "term" "lien" in its ordinary sense means the right by law to keep possession of something belonging to a person in debt until that debt has been paid. Lien cannot give any right, interest or title in the immovable property in possession of person claiming lien." In view of above discussion the plaintiff `B' is entitled to an ad-interim injunction directing A to remove himself from property and further not to resist or obstruct the entry of B plaintiff, thereto. Facts of present case, have been drawn from case Master Builders v. United States of America 1991 DLT 719.
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver; and
(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of these powers as the court thinks fit.In Krishan Kumar v. Grindlays Bank AIR 1991 SC 899, it was observed, following principles must be borne in mind before a receiver is appointed by court:
(a) The appointment of receiver is a discretionary power of court.
(b) The object of appointment of receiver is the preservation of property in dispute pending judicial determination of rights of parties to it.
(c) A receiver should not be appointed unless the plaintiff prima facie proves that he has very excellent chance of succeeding in the suit.
(d) Since appointment of receiver deprives the opposite party the possession of property before final judgment is pronounced , it should only be granted for prevention of menifest injury or wrong.In Issar Das S. Lulla v. Smt. Hari, AIR 1962 Madras 458, it was held that the appointment of receiver is in the discretion of the court and the court should not exercise the power as a matter of course but only when it is necessary to do so. A receiver should not be appointed when there is a bonafide possession of the property, unless there is some cogent grounds for interference. The main object and purpose of the appointment of receivers is the preservation of the subject matter of the litigation pending a judicial determination of the rights of the parties thereto.
Q. 78 (a) Can a court appoint a Receiver in a case even without an application from the party concerned ? What is the duration of the appointment of a Receiver ?
(b) Can a Receiver be appointed in the following cases :
(i) in execution of a decree in respect of a compulsory deposit in the Provident Fund due to the judgment-debtor;
(ii) in a suit for enforcement of simple mortgage on the application of the mortgagee.
(i) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment;
(ii) if a receiver is appointed in a suit without his tenure being expressly defined, he will continue to be receiver till he is dis-charged;
(iii) but after the final disposal of the suit as between the parties to the litigation, the Receiver's functions are terminated, he would still be answerable to the Court as its officer till he is finally discharged.
(iv) the court has ample power to continue the Receiver even after the final decree if the exigencies of the case so required;Ans. (b)(i) A receiver cannot be appointed in execution of a decree in respect of a compulsory deposit in a Provident Fund to the judgment-debtor as held by our Hon'ble Supreme Court in Union of India v. Heera Devi and another, AIR 1952 SC 765. In this case the decree holder, a lady, had obtained a money- decree against one Ram Grahit Singh, a retired Head clerk in the dead letter office. In 1949, a Receiver was appointed for collecting the monies standing to the credit of the judgment-debator in the Provident Fund with the postal authorities. The Union of India intervened for setting aside the order of appointment of Receiver and the Hon'ble Supreme Court allowing the appeal of Union of India held that no Receiver can be appointed and such a deposit cannot be assigned or charged and is not liable to any attachment. (ii) It has been held in several cases that a Receiver can be appointed even where the mortgage is a simple mortgage but the Hon'ble High Courts of Allahabad and Patna have taken a contrary view. The view in Charan Nandi Chaudhry v. Rajnit Prasad, AIR 1932 Patna 360 appears to be correct in view of sub-rule (2) of Rule 1 of Order 40 of the Code of Civil Procedure which lays down that nothing in this rule shall authorise the court to remove. In the case of simple mortgage the plaintiff gets a decree for sale and he has no present right to be in possession of the property and, therefore the defendant's possession cannot be taken away by the appointment of the Receiver.
(i) for examination of witness
(ii) for local investigation;
(iii) to examine accounts;
(iv) to make a partition;
(v) to hold a scientific, technical or expert investigation.
(vi) to conduct sale of properties which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
(vii) to perform any ministerial act;Order 26 Rule 1 of the Code of Civil Procedure deals with the cases in which the Court may issue commission to examine witnesses. It provides that any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it :
Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.Rule 4 of the Order XXVI of the Code of Civil Procedure further lays down that any Court may in any suit issue a commission for the examination on interrogatories or otherwise of -
(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on which he is required to be examined in court; and
(c) any person in the service of the Government who cannot, in the opinion of the court, attend without detriment to the public service:
Provided that where, under Rule 19 of Order 16, a person cannot be ordered to attend a court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:
Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks, it necessary so to do.Rule 9 of Order 26 of the Code of Civil Procedure deals with the commission to make local investigation. It provides that in any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits of damages of annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Rule 10-A of Order 26 of the Code of Civil Procedure deals with the commission for scientific investigation and Rule 10-B of that Order deals with the commission for performance of a ministerial act. Rule 10-A provides that where any question arising in a suit involves any scientific investigation which cannot, in opinion of the court, be conveniently conducted before to the court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon the Court. Rule 10-B provides that where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court. Rule 11 of Order 26 of the Code of Civil Procedure deals with the commission to examine or adjust and its Rule 13 deals with the commission to make partition of immovable property. Appointment of Commissioner under inherent powers : A Court has no inherent powers under section 151 of the Code of Civil Procedure to appoint a Commissioner because inherent powers are not over substantive rights. Our Hon'ble Supreme Court has held in Padam Sen v. State of U.P., AIR 1961 SC 218, that a Court has no inherent powers under section 151 C.P.C. to appoint a Commissioner to seize account books in the possession of the plaintiff upon an application by the defendant that he has apprehension that they would be tampered with. It was observed by the Hon'ble Supreme Court that powers saved by section 151 C.P.C. are not powers over substantive rights which a litigant possesses. A party has full right over his account books and a Court can not seize them forcibly. It can summon them and, if not produced, it can penalise the party and draw adverse presumption against him.
1. No appeal shall lie from a decree passed by the Court with the consent of parties.
2. No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisiable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.
Note : - In view of C.P.C. (Amendment) Act, 1999 in sub- Section (4) of Section 96, now in place of words "three thousand rupees" the words "ten thousand rupees" have been substituted.
3. Where any party, aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree.Kinds of Appeal Appeals can be divided into following four classes according to the provisions of the Code of Civil Procedure:
(i) Appeals from original decree. (Sections 96 to 99 and Order 41 C.P.C.)
(ii) Second appeals. (Sections 100 to 103 and Order 42 C.P.C.)
(iii) Appeals from Orders. (Section 104 to 106 and Order 43 C.P.C.).
(iv) Appeals to the Supreme Court. (Section s 109 and Order 45 C.P.C.).Appeals from Original Decree Section 96 provides that save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court. An appeal may lie from original decree passed exparte but no appeal shall lie from a decree passed by the court with the consent of the parties. Sub-section (4) of Section 96 C.P.C. which has been added by Amendment Act No.104 of 1976, also lays down that no appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts of small causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousands rupees. Section 97 of the Code of Civil Procedure deals with appeal from final decree where no appeal is preferred against preliminary decree, and Section 98 provides that where an appeal is heard by a bench of two or more judges, the appeal shall be decided in accordance with the opinion of such judges or of the majority (if any) of such judges. Second Appeals Section 100 of the Code of Civil Procedure lays down that:
(i) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(ii) An appeal may lie under this Section from an appeal (1) decree passed exparte.
(iii) In an appeal under this Section, the memorandum of an appeal shall precisely state the substantial question of law in the appeal.
(iv) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(v) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law. Section 101 of C.P.C. lays down that no second appeal shall lie except on the ground stated above and Sections 100-A and 102 C.P.C. provide that in certain cases no second appeal lies. Order 42 deals with procedure to be adopted in second appeal. Civil Procedure Code (Amendment) Act, 2002 has inserted Section 100- A which provides. "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 where any appeal from an original or appellate decree or order is heard or decided by a single judge of High Court, no further appeal shall lie from the judgment and decree of such single Judge : By single Judge of High Court, no further appeal shall lie from judgment, decision or order of such single Judge." Section 102 of Code has also been substituted by Amendment Act 2002 which says :- Section 102 "No second appeal shall lie from any decree, when amount or value of subject matter of original suit does not exceed 25000/- rupees". Recently Three Judges Bech of Supreme Court in Santosh Hazari v. Purushottam Tiwari (By L.Rs), AIR 2001 SC 965, observed that :
" Section 100 of Code as amended in 1976 restricts the Jurisdiction of High Court to Hear the Second Appeal only on `Substantial Question of Law involved in the case'. An obligation is cast upon the appellant to precisely state in Memorandum of appeal the substantial question of law involved in appeal for which appellant proposes to urge before High Court. High Court must be satisfied that a substantial question of law is involved in the case and such question has to be formulated by High Court. At the hearing of appeal, the scope of hearing is circumscribed by the question so formulated by High Court. Respondant is at liberty to show that question formulated by High Court is not involved in the case. However High Court's power to hear the appeal on any other substantial question of law not earlier formulated by it, is not taken away subject to twin conditions being satisfied : (a) the High Court feels that the case involves such question and (b) High Court records reasons for such satisfaction. The phrase " Substantial Question of Law" means question of law which must be debateable, not previously settled by law of land or binding precedent and must have material bearing on the decision of the case, if answered either way, in so far as the rights of parties before it are concerned."Appeals from Orders Section 104 and Order 43 of the Code of Civil Procedure deals with such orders from which appeal lies. According to it, an appeal shall lie from the following Orders, and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, and from no other orders :
(i) An order under Section 35 ;
(ii) An order under Section 91 or 92 refusing leave to institute a suit of the nature referred to in Sections 91 and 92, as the case may be
(iii) An order under any provision of Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree.
(iv) Any order made under Rules from which an appeal is expressly allowed.
Provided that no appeal lies against any order under Section 35-A save on the ground that no Order or an order for payment of a less amount ought to have been made.APPEAL TO SUPREME COURT Section 109 of Code of Civil Procedure lays down, that subject to provisions in Chapters IV and V of the Constitution and such Rules as may from time to time be made by the Supreme Court regarding appeals from the courts of India and to provisions hereinafter contained, an appeal shall lies to Supreme Court from any judgement, decree or final Order in a civil proceeding of High Court, if the High Court certifies:-
(i) That the case involves a substantial question of law of general importance and
(ii) That the opinion of the High Court on said question needs to be decided by Supreme Court.Order 45 C.P.C deals with procedure in appeal before Supreme Court. Whether Appellate Court can Reverse a Decree on Ground of Mis Joinder of Parties Section 99 of the Code provides:
"No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. - No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: provided that nothing in this Section shall apply to non-joinder of a necessary party." Thus, the appellate Court shall not reverse a decree on the ground of mis- joinder of parties unless it has affected the merits of the case or the jurisdiction of the Court or there has been a failure of justice.
(a) By a decree or order from which an appeal is allowed but from which no appeal has been preferred;
(b) By decree or order from which no appeal is allowed;
(c) By a decision on reference by court of small cause.may apply for Review of Judgement to court which passed the decree or made the order and the Court may make such order thereon as it think fit. GROUNDS Order 47 Rule 1 of Code says that Application for Review of Judgement may be made on any of the following grounds:-
(a) Discovery of new and important matter or evidence, which after the exercise of due diligence was not within his knowledge or could not be produced at the time when the decree was passed or made.
(b) Mistake or error, apparent on the face of record.
(c) Any other sufficient reason.Explanation : The fact that the decision on a question of law on which judgment of the court is based has been reversed or modified by subsequent decision of a superior court in any other case shall not be a ground for the review of such judgement." Power of Review should not however be confused with appellate power which enables the court to correct all errors committed by subordinate court. In A.T. Sharma v. A.P. Sharma AIR 1979 SC 104 it was observed:
"As a general rule where a litigant obtained a judgment in a court, he is by law entitled, not to be deprived of fruits thereof without solid grounds. It is very easy for party who has lost the case to see the weak points in case and try to fill in the gaps by procuring evidence which will strengthen that weak part of his case. Object of Review is neither to enable the Court to write a second judgment nor to give second inning to a party who has lost the battle because of his own negligence."
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.Sub-section (2) of Section 115 C.P.C. further lays down that the High Court shall not under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. Explanation - In this Section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. Civil Procedure Code (Amendment) Act, 1999 has substituted the proviso to sub-section (1) of Section 115 of Code by following words :-
"Provided that High court shall not, under this section vary or reverse any order made or any order deciding an issue, in course of a suit or other proceedings except where the order, if it had been made in favour of party applying for revision, would have finally disposed of the suit or other proceedings."Amendment Act, 1999 has also inserted sub-section (3) to Section 115 of Civil Procedure Code, which provides as under:-
"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.Supreme Court in Baldev Das v. Filmistan Distributors, AIR 1970 SC 406 has held that case may be said to have been decided if the court adjudicates for the purpose of the suit some right or obligation of parties in controversy. Explanation added to Section 115 of Code vide Amendment Act 1976 makes it clear that expression "Case decided" includes any order made or any order deciding an issue, in the course of a suit or other proceeding. In view of above discussion it is clear that order allowing or disallowing a question to a witness is not case decided. Therefore such an order can not be challenged in Revision. In Prem Bakshi and other v. Dharam Dev, AIR 2002 SC 559 application for amendment of plaint was filled to bring to notice of court the subsequent facts application allowed by Trial Court. High Court set aside that order in revision. When matter went in Supreme Court, while relying upon judgment of Maj. S.S. Khanna's case AIR 1964 SC 497, it was observed -
"The proviso to sub-section (1) of Section 115 puts a restriction on power of High Court in as much as it shall not under section 115 C.P.C. vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (i) the order made would have finally disposed of the suit or other proceedings or (ii) said order would occasion failure of justice or cause irreparable injury to party, against whom it is made... Order in question by which the amendment was allowed could not be said to have finally disposed of the case.... It is almost inconceivable how mere amendment of pleadings could possibly cause failure of justice or irreparable injury to any party. Thus order of High Court was held to be outside the purview of revisional jurisdiction.
(a) An appeal lies to a superior court from every original decree unless expressly barred, while a revision lies only in the cases mentioned in Section 115 C.P.C., and to the High Court only.
(b) The revisional jurisdiction can also be exercised suo moto, while appellate jurisdiction cannot be exercised suo moto.
(c) The exercise of the revisional power is entirely discretionary and ordinarily High Court does take a technical view so as to interfere in every case while right of appeal is a substantive right given by statute, and every appeal is to be decided according to law.
(d) The High Court or the revisional court cannot, in exercise of its revisional powers, set aside the findings of facts of subordinate courts but a court of appeal can do so.
(d) An appeal abates if the legal representative of the deceased are not brought on record within the time allowed by law while a revision may not abate and the High Court has a right to bring the proper parties before the court at any time.(ii) Revision and Review ; There are the following distinctions between revision and review:
(a) The power of revision is exercised by the High Court and in some cases, by the District Court, i.e., the superior court, while the power of review is exercised by the court which passed the decree or order.
(b) The power of revision is conferred on the High Court only and in some cases in some States, on the District Court also, but review can be made by any court which passed the judgment or order.
(c) Revisional powers can be exercised only in cases in which no appeal lies, but review can be made even when appeal lies to the Supreme Court.
(d) The grounds on which the powers of revision and review can be exercised are different. The ground for revision relates to jurisdiction, i.e., want of jurisdiction, failure to exercise jurisdiction vested in the court, or illegal or irregular exercise of the jurisdiction, while the grounds for review are the discovery of new and important matter of evidence, some apparent mistake or error on the face of the record or any other sufficient reason.
(d) No appeal lies from an order passed in the exercise of revisional jurisdiction while the order following the review application is appealable.(iii) Reference and Revision ; There are the following distinctions between reference and revision:
(a) In reference, the case is referred to the High Court by a court subordinate to it as provided in Section 113 of the Code of Civil Procedure, while the revision application is moved by the party concerned or the revisional court can suomoto send for the case and examine the record.
(b) The ground of reference, the entertainment of some reasonable doubt by the court trying the suit, appeal or executing the decree in respect of a question of law or usage having the force of law, while the ground for revision relates to jurisdiction, i.e., want of jurisdiction, failure to exercise jurisdiction vested in the court or its irregular exercise.(iv) Reference and Review ; There are the following distinctions in reference and review:-
(a) In reference, the subordinate court refers the case to the High Court under Section 113 of the Code of Civil Procedure, while in review an application is made by the aggrieved party in the court which passed the order of judgement.
(b) The High Court only can decide matters on reference while the power of review is to be exercised by the court which passed the decree or order, as the case may be.
(c) Reference is made during the pendency of the suit, appeal or execution proceedings, while application for review is made to the court after a decree or order is passed.(v) Reference and Appeal
(a) A right of appeal is a substantive right conferred by law while the power of reference is vested in the court.
(b) Reference is always made to the High Court, while the appeal is preferred to a superior court which need not necessarily be a High Court.
(c) The grounds of appeal are wider than the grounds of reference.
(d) Reference is made in a pending suit, appeal or execution proceedings in order to enable a court to arrive at a correct conclusion, while an appeal is preferred after a decree or appealable order is passed by the court.(vi) Review and Appeal ; There are the following main distinctions between review and appeal:
(a) An application for review lies to the same court while an appeal lies to a superior court.
(b) The grounds of review are different from the grounds of appeal. The grounds of appeal are wider than the grounds of review.
(c) There is no second review provided in the Code of Civil Procedure, while there are provisions for second appeal in certain cases.