• The code of civil procedure,1908
• Decree, order and judgement
• Decree –
section 2(2)
• Section 2 (2) -“decree” means the
formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of a plaint
and the determination of any question within 1 [* *
*] 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.
• Explanation – A decree is
preliminary when further proceedings 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 final;
• Essential elements of a decree
- There
must be an adjudication
- Such
adjudication must have been given in a suit
- It
must have determined the rights of the parties with regard to all or any
of the matter in controversy in the suit.
- Such
determination must be of a conclusive nature, and
- There
must be formal expression of such adjudication
Vidya charan Shukla v. Khubchand Bagal AIR
1964 SC 1099
Satnam Singh and Others v. Surendra Kaur JT
2008 (13) SC 459
• Adjudication
• Adjudication
means "the judicial determination of the matter in dispute". If there
is no judicial determination of any matter in dispute or such judicial
determination is not by a Court, It is not a decree;
• e.g.,
an order of dismissal of a suit in default for nonappearance of parties,
• or
of dismissal of an appeal for want of prosecution are not decrees because they
do not judicially deal with the matter in dispute.
• In
a Suit
• Suit
means a Civil proceeding instituted by the presentation of a Plaint. Thus,
every suit is instituted by the presentation of Plaint.
• Where
there is no Civil suit, there is no decree; e.g. ,Rejection of an application
for leave to sue informapauper is not a decree ,because there cannot be a
plaint in such case until the application is granted.
• Some proceedings commenced by an
application are statutory suits so that the decision is a decree ( Eg:
Application to file an agreement to refer to arbitration)
• Rights of parties with regards to
all or any matters in controversy
• Rights
of the parties: The adjudication must have determined the rights i.e., the
substantive rights and not merely procedural rights of the parties with regard
to all or any of the matter in controversy in the suit.
• "Rights
of the parties" under section 2(2).
• The
rights of the parties inter se (between the parties) relating to status,
limitation, jurisdictions, frame of suit. accounts, etc.
• "Rights
in matters in procedure" are not included in section 2(2); e.g.,
• An
order of dismissal for non-prosecution of an application for execution, or
refusing leave to sue informa pauperis, or a mere right to sue, are not decrees
as they do not determine the rights of the parties
• ‘matter in controversy in the suit’- such matter has been brought up
for adjudication by the court through pleadings. Hence the conclusive
determination must be in matters in controversy in the suit.
• CONCLUSIVELY DETERMINES
• Conclusive
Determination: The determination must be final and conclusive as regards
the Court, which passes it.
• The decree may conclusively
determine the rights of the parties although it does not completely dispose off
the suit.
• An
interlocutory order which does not finally decide the rights of the parties is
not a decree; e.g., An order refusing an adjournment, or of striking out
defence of a tenant under the relevant Rent Act, or an order passed by the
appellate Court under Order41, rule23 to decide some issues and remitting other
issues to the trial Court for determination are not decrees because they do not
decide the rights of the parties conclusively
• When an order decides only the
question of limitation, such an order will not be a decree within the meaning
of section 2(2) of the code of civil procedure because such an order does not
result in conclusive determination of the right of the parties envisaged by
section 2(2) with regard to all or any matter in controversy in a suit.
• However,
an order dismissing an appeal summarily under Order-41, or holding it to be not
maintainable, or dismissal of a suit for want of evidence or proof are decrees,
because they conclusively decide the rights of the parties to the suit.
• Exception:
But where in an enactment specific provisions have been made to treat
the applications as suits, then they are statutory suits and the decision given
thereunder are, therefore, decrees; e.g., proceeding under the Indian
Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the
Arbitration Act, etc.
• Formal
expression
• “Formal
expression” means the recordation of the ruling of the Court on the matter
presented before it, so far as the Court expressing it alludes to the fact that
the same issue cannot be adjudicated by or before the Court again but only
before a higher forum i.e. an appellate forum.
• The
formal expression must be deliberate and given in the manner provided by the
law.
• If
a decree is not formally drawn up in terms of the judgment, no appeal lies from
the judgment.
• Is it a decree?
• A ‘compromise’ collateral to a suit
offered by one party and accepted by the other where the document of compromise
is not recorded through a decree but is merely drawn up, cannot attract the
provisions of O.23, R.3 of the CPC and the court should not make a decree.
• An order refusing to record a compromise
cannot be tantamount to decree within the meaning of section 2(2) and is
therefore not appealable under section 96. it cannot be held to be an
adjudication which conclusively determines the rights of the parties.
• An order of dismissal for ‘default
of appearance’ is no determination of the rights of the parties and
therefore not a decree( Guwahati Bank Ltd vs.Baliram AIR 1950 Assam 169)
• An order dismissing a suit when
summons is not served due to plaintiff’s failure to pay fees –
decree or not? ( Lakshmi Narain v. Dabari Lal (1916)ILR 38 All 357
• An order granting leave to withdraw
a suit to file a fresh suit, for the rights of the parties are open for
determination in the next suit
• An order that a plaint should be
stamped with higher court fee, since this order is open for revision
• Rejection of plaint
• Dismissal of suit –
Dismissal of suit for non- payment of fees does not amount to a decree since it
falls within the ambit of an order and falls within section 2(2)(b).
• Classes/
Types of Decrees
• Preliminary and final decree
• Decree maybe Preliminary or Final.
• In a Preliminary Decree , certainly
rights are conclusively determined and unless it is challenged in an Appeal, it
becomes final and conclusive and cannot be questioned in final decree.
• Where
adjudication decides the rights of the parties with regard to all or any of the
matters in controversy in the suit, but does not completely dispose of the
suit, it is a Preliminary Decree.
• A Preliminary Decree declares the
rights and the liabilities of the parties leaving the actual result to be
worked out in further proceedings.
• Later, rights of the parties are
finally determined and a decree is passed in accordance to such determination.
That is Final Decree.
• Both decrees are in the same suit.
If the Preliminary Decree is set aside, the final decree is superseded.
• Provisions
in the Code for passing of the Preliminary Decrees
• Suits
for possession and mesne profit;Order20 Rule 12
• Administrative
Suits; Order 20 Rule 13
• Suits
for, Pre-emption; Order 20 Rule 14
• Suits
for dissolution of Partnership; Order 20 Rule 15
• Suits
for accounts between principal and agent; Order 20 Rule 16
• Suits for partition and separate possession;
Order 20 Rule 18
• Suits
for foreclosure of a mortgage; Order 34 Rules 2-3
• Preliminary
Decree
• Besides
above, the Court has a power to pass a preliminary decree in cases not
expressly provided in the Code.
• In
Phool Chand Vs Gopal Lal A.I.R.1967, S.C.1470, the Apex Court has
decided that "C.P.C. does not prohibit passing of more than one
preliminary decree, if circumstances justify the same and it may be necessary
to do so".
• Final
decree
• Final
Decree: A decree may be final in two ways-
• When
no appeal is filled against the decree within the prescribed period or the
matter has been decided by the decree of the highest Court;
• When
the decree so far as regards the Court passing it, completely dispose of the
suit.
• A
final decree is one which completely disposes of the suit and finally settles
all the questions in controversy between the patties and nothing further
remains to be decided thereafter.
• The Final Decree merely carries into
fulfillment the preliminary decree.
• The Preliminary Decree is not
capable of execution until final decree is passed.
• Under
the special circumstances, more than one final decrees can be passed in the
same suit.
• E.g. Where two or more causes of actions are
joined together, there can be more than one final decree
• Partly
Preliminary and Partly Final Decree
• For
example, in a suit for possession of immoveable property with mesne profits,
the Court passes-
Ø Decree
of possession of the property, and
Ø Directs
an enquiry into the mesne profits.
• The
former part of the decree is final, while the later part is only preliminary
because the Final Decree for mesne profits can be drawn only after enquiry and
ascertainment of the due amount.
• In
such case, even though the decree is only one, it is Partly Preliminary and
Partly Final.
• Examples
of Decree
• Order
of abatement of suit
• Dismissal
of appeal as time barred
• Dismissal
of suit or appeal for want of evidence/proof
• Rejection
of plaint for want of payment of court fee
• Granting
or refusing to grant cost or instalment
• Modification
of scheme u/s 92
• Order
holding appeal not maintainable
• Order
of holding the right to sue does not survive
• Order
refusing one of the several reliefs
• Order
holding that there is no cause of action
• Examples
of not Decree
• Dismissal
of appeal for default
• Appointment
of commissioner to take accounts
• Order
of remand
• Order
granting or refusing interim relief
• Return
of plaint for presentation to proper court
• Dismissal
of suit U/O XXIII rule 1
• Rejection
of application for condonation of delay
• Order
holding an application to be maintainable
• Order
refusing to set aside a sale
• Order
directing the assessment of mesne profit
• Deemed
to be decree
• Rejection
of Plaint
• Determination
of questions under section 144
• Award
of Lok Adalath
• What is an Order ?
• Section 2 (14)- "order"
means the formal expression of any decision of a Civil Court which is not a
decree;
• An order is judgment expressed by
the court which does not contain a decree .
• In other words, an order is a
direction by the judge to one of the parties to the suit, instructing any party
to take (or not take) specific actions. While the decree is concerned with
substantial matters, the order focuses on procedural aspects (i.e. adjournment,
amendment, etc.).
• An order may or may not finally
determine a right, but it is always final and can never be preliminary.
• Difference
Between Decree and Order
• Similarities
The adjudication of a court of law may either be:
- A
decree or Order and cannot be both
- Both
relates to matters in controversy
- Both
are decisions given by a court
- Both
are adjudication of a court of law
- Both
are formal expressions of a decision.
• Judgment
• Section 2(9) -"judgment"
means the statement given by the judge of the grounds of a decree or order.
• It is quite different from order and
decree.
• It does not include the word formal
expression.
• Judgment
sets out the ground and the reason for the Judge to have arrived at the
decision.
• Conversely, in a decree it is not
necessary that there should be reasons/statement of reasons given by a judge.
In a judgement it is mandatory for a judge to give statement of reasons.
• The decree is the ‘formal
expression’ of conclusions arrived at in the judgement. So a formal expression of the order in the
judgement is not necessary, yet desirable.
• What should a judgment contain?
v Order 20 Rule 4(2) r/w Section 33
v concise statement of the case
v The points for determination
v The decision thereon
v The reasons for such decision
• Judgment
• Whether
a case is contested or is decided ex-parte or is a case where written statement
is not filed and case is decided under O.8 R.10, the court has to write a
judgment in conformity with this Code or at least must set out the reasoning by
which the controversy is resolved.
(Balraj Taneja V. Sunil Madan (1999)8 SCC 396)
• Judgment
should be a self-contained document and should indicate what the facts of the
case were or what was the controversy tried to be settled by the court and in
what manner. Process of reasoning by which the court came to the ultimate
conclusion shall be reflected clearly in the judgment.
(Balraj Taneja V. Sunil Madan (1999)8 SCC 396)
• Statement
given by a judge as to the grounds of decree or order amounts to a judgment. A
member of the Tribunal cannot be adjudged as a Judge and therefore the
statement of a Tribunal cannot be termed as a decree but only simple order.
• (State
of Tamil Nadu v. S. Thankavel and others (1997)2 SCC 349)
• Is the term ‘court’ defined under
CPC?
• Section 3, Indian evidence act, 1872
• Section 3- “In this Act the
following words and expressions are used in the following senses, unless a
contrary intention appears from the context—
Court: Court includes all Judges and Magistrates, and all persons, except
arbitrators, legally authorized to take evidence.”
• IS THE term ‘judge’ defined under
CPC?
• SECTION 19, INDIAN PENAL CODE,1860
19
"Judge"
The word
"Judge" denotes not only every person who is officially designated as
a Judge, but also every person who is empowered by law to give, in any legal
proceeding, civil or criminal, a definitive judgment, or a judgment which, if
not appealed against, would be definitive, or a judgment which is confirmed by
some other authority, would be definitive, or who is one of a body of persons,
which body of persons is empowered by law to give such a judgment.
• IS THE term ‘pleader’ defined under
CPC?
• Pleader is defined under both Crpc
and cpc
• Section 2 (q) of the Code of
Criminal Procedure act, 1973 "pleader", when used with reference
to any proceeding in any Court, means a person authorized by or under any law
for the time being in force, to practice in such Court, and includes any other
person appointed with the permission of the Court to act in such proceeding;
• Section 2(15) of the Code of Civil
Procedure,1908 defines “pleader” means any person entitled to appear and
plead for another in Court, and includes an advocate, a vakil and an attorney
of a High Court;
• Terms Foreign court and foreign
judgment- CPC
• Section 2 (5) “foreign Court” means
a Court situate outside India and not established or continued by the authority
of the Central Government;]
• Section 2 (6) “foreign judgment”
means the judgment of a foreign Court;
• Who is a legal representative under
CPC?
• Section 2 (11) -“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
• Difference between legal heir and
legal representative
• IS THE term ‘movable property’ and
immovable property defined under CPC?
• Section 2(13) of the Code of Civil
Procedure 1908 states “movable property” includes growing crops
• Immovable property is defined under Section
3 of the Transfer of Property Act, 1882, which states " immovable property" does not include standing timber,
growing crops or grass
• Unit
II Jurisdiction
• Jurisdiction
means power of a Court to hear and decide a case.
• Jurisdiction
of a Court means the power or the extent of the authority of a Court
- to
hear and determine a cause,
- to adjudicate and exercise any judicial
power in relation to it.
• The
Jurisdiction of a Court means the extent of the authority of a Court to
administer justice prescribed with reference to the subject matter, pecuniary
value or local limits.
• Consent
of Parties:
• It
is well settled principle of law that consent cannot confer nor take away
jurisdiction of a Court.
• If
the Court has no inherent jurisdiction, neither acquiescence nor waiver nor
estoppels can create it.
• But
If two or more Courts have jurisdiction to try the suit, the parties may agree
among them that the suit should be brought in one of those Courts and not in
other, since there is no inherent lack of jurisdiction in the Court.
• The
defect of jurisdiction cannot be cured by consent of parties and the judgment
or order passed by a Court, however precisely certain and technically correct,
is null and void and 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."(Kiran
Singh v. Chaman Paswan AIR 1954 SC 340)
• Lack
of and illegal exercise of jurisdiction:
• "A
Court has jurisdiction to decide wrong as well as right. If it decides wrong,
the wronged party can only take the course prescribed by law for setting
matters right; and if that course is not taken, the decision, however wrong,
cannot be disturbed.” (Ittyavara Mathai Mathai v. Varkey Varkey AIR 1964 SC 907)
• A
decree passed in the inherent lack of jurisdiction, is a nullity, and that
nullity can be set up in any collateral proceedings.
• Whenever
the jurisdiction of the Court is challenged, the Court has inherent
jurisdiction to decide the said question.
• The
allegations made in plaint decide the forum and jurisdiction does not depend
upon the defence taken by the defendants in the Written Statement. (Abdulla v. Galappa AIR 1985 SC
577)
• Basis
of determination
• 1.
Averments made in the Plaint and not by the contention raised by the defendant
in the Written Statement.
• 2.
Plaintiff cannot by drafting the plaint cleverly and circumvent the provisions
of law in order to invest jurisdiction in civil court which it does not
possess.
• 3.
In order to decide jurisdiction the substance of the matter is important than
the forum.
• 4.
Jurisdiction has to be determined at the commencement and not at the conclusion
of inquiry.
• 5.
Every court has inherent jurisdiction to decide whether it has jurisdiction or
not.
• Kinds
of jurisdiction:
• Civil
and Criminal Jurisdiction
• Territorial
jurisdiction or Local jurisdiction
• Pecuniary
jurisdiction
• Jurisdiction
as to subject matter of dispute
• Original
and appellate jurisdiction
• Exclusive
and Concurrent Jurisdiction
• General
and Special Jurisdiction
• Municipal
and Foreign Jurisdiction
• Legal
and Equitable Jurisdiction
• jurisdiction
• Presumption
as to Jurisdiction is in favour of the Jurisdiction of a civil court
• The
burden of proof is on the party who seeks to oust the jurisdiction
• The
statute ousting the jurisdiction of a civil court must be strictly construed
• If
there is a doubt as to jurisdiction the court should lean towards the
assumption of jurisdiction. (Kamala Mills Ltd v. State of Bombay AIR
1965 SC 1942)
• Pecuniary
jurisdiction- Section 6
• Section
6:
• Pecuniary
Jurisdiction-Save in so far as is otherwise expressly provided, nothing herein
contained shall operate to give any Court jurisdiction over suits the amount or
value of the subject-matter of which exceeds the pecuniary limits (if any) of
its ordinary jurisdiction.
• Pecuniary
jurisdiction- Section 6
• What is the ‘subject matter’ here?
• Subject matter means not the
property involved in the suit but the relief claimed and its value that
determines jurisdiction
(Kalu
Parvathi vs. Krishnan Nair 1969 KLJ 599)
• Further as per Section 6, the
valuation of the suit must be within the pecuniary jurisdiction of the suit.
(Mohan
Meakin Ltd vs. Internations Trade AIR 2004 HP 11(12))
• Section
9
• Two
conditions
- The
suit must be of civil in nature
- The
cognizance of such suit should not have been expressly or impliedly barred
• The
suit must be of civil in nature
Suits which are not of civil in nature
- Suits
involving principally caste questions.
- Suits
for merely upholding dignity or honour
- Suits
relating to religious rites or ceremonies
- Matters
to be determined by Special Tribunal or under an Authority of Special Act
• Section
9- cases
Firm of Illuri
Subbayya Chetty and Sons vs. State of AP , AIR 1964 SC 322
• Mere
fact that Special Statute provides a remedy will not exclude civil court’s
jurisdiction.
Sinna Ramanuja Jeer and Ors.
vs. Ranga Ramanuja Jeer and Ors. AIR 1961 SC 1720
• A
suit for a declaration of religious honours and privileges simplicitor will not
lie in civil court.
• But
a suit to establish one’s right to an office in a temple, and to honours and
privileges attached to the said office as its remuneration or prerequisites in
maintainable in civil court.
• The
essential condition for the existence of an office is that the holder of the
alleged office shall be under a legal obligation to discharge the duties
attached to the said office and for the non-observance of which he maybe
visited with penalties.
• So
judged, there cannot be an independent office of theerthakar, for a theerthakar
has no obligatory duties to perform; nor can there be an office of arulipad;
the said word only connotes that the names of the theerthakars are called out
by the archaka in a certain order.
• Even
if theertham is given or other honours are shown in a particular order to a
person holding an office, it does not necessarily follow that the said honours
are part of the remuneration attached to the office; but it is a question of
fact to be ascertained on the evidence whether the said honours are attached to
the office as part of its perquisites in the sense that they have become an
integral part of the ritual to be performed by the recipient as the
office-holder or are only shown to him as a mark of respect on the occasion of
his visit to the temple.
Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke of
Bombay and Ors. AIR 1975 SC 2238
• If
the dispute is not an industrial dispute, nor does it relate to enforcement of
any other right under the Act the remedy lies only in the civil Court.
• If
the dispute is an industrial dispute arising out of a right or liability under
the general or common law and not under the Act, the jurisdiction of the civil
Court is alternative, leaving it to the election of the suitor concerned to
choose his remedy for the relief which is competent to be granted in a
particular remedy.
• If the industrial dispute relates to the
enforcement of a right or an obligation created Under the Act. then the only
remedy available to the suitor is to get an adjudication under the Act.
• If the right which is sought to be enforced is
a right created under the Act such as Chapter VA then the remedy for its
enforcement is either Section 33C or the raising of an industrial dispute. as
the case may be.
Dhulabhai and Ors. vs. The State of Madhya Pradesh and Ors
AIR 1969 SC 78
(1) Where the statute gives a finality to the orders of the
special tribunals the Civil Court's jurisdiction must be held to be excluded if
there is adequate remedy to do what the Civil Courts would normally do in a
suit. Such provision, however, does not exclude those cases where the
provisions of the particular Act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of
judicial procedure.
(2) Where there is an express bar of the jurisdiction of the
court, an examination of the scheme of the particular Act to find the adequacy
or the sufficiency of the remedies provided may be relevant but is not decisive
to sustain the jurisdiction of the civil court. Where there is no express
exclusion the examination of the remedies and the scheme of the particular Act
to find out the intendment becomes necessary and the result of the inquiry may
be decisive.
(2) In the latter
case it is necessary to see if the statute creates a special right or a liability
and provides for the determination of the right or liability and further lays
down that all questions about the said right and liability shall be determined
by the tribunals so constituted, and whether remedies normally associated with
actions in Civil Courts are prescribed by the said statue or not.
(3) Challenge to the provisions of the particular Act as
ultra vires cannot be brought before Tribunals constituted under that Act. Even
the High Court cannot go into that question on a revision or reference from the
decision of the Tribunals.
(4) When a provision is already declared unconstitutional or
the constitutionality of any provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for refund if the claim is clearly
within the time prescribed by the Limitation Act but it is not a compulsory
remedy to replace a suit.
(5) Where the
particular Act contains no machinery for refund of tax collected in excess of
constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart
from its constitutionality are for the decision of the authorities and a civil
suit does not lie if the orders of the authorities are declared to be final or
there is an express prohibition in the particular Act. In either case the
scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is
not readily to be inferred unless the conditions above set down apply
• The
cognizance of such suit should not have been expressly or impliedly barred
- Barred
by general principles of law
• Civil
court has no jurisdiction to entertain suits in respect of the act of State.
• An
act of State can be defined as an act done or adopted by a state in its
sovereign capacity and injurious to the
person or property of some person.
- Barred
on grounds of public policy
• The
principle is that a court ought not to countenance matters which are injurious
to and against public
• Section
15
• Every
suit shall be instituted in the Court of the lowest grade competent to try
it.
• What does the word ‘competent’
indicate?
• Competent is with respect to
jurisdiction- pecuniary, territorial and subject matter
• What
could be the objective of this section ?
• ‘Courts of the lowest grade’- this
is applicable to only those courts where CPC applies
• Example : Where both sub-ordinate and munsiff court has
the power to try to try a suit , Suit
for nullity of marriage
• Section 16
16.
Suits to be instituted where subject-matter situate.
Subject
to the pecuniary or other limitations prescribed by any law, suits-
(a) for
the recovery of immovable property with or without rent or profits,
(b) for
the partition of immovable property,
(c) for
foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property,
(d) for
the determination of any other right to or interest in immovable property,
(e) for
compensation for wrong to immovable property,
(f) for the recovery of
movable property actually under distraint or attachment,
shall be
instituted in the Court within the local limits of whose jurisdiction the
property is situate :
Provided
that a suit to obtain relief respecting, or compensation for wrong to,
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 and voluntarily resides, or carries on business, or personally works
for gain.
Explanation.– In this section “property” means
property situate in 1[India].
• Object of this section –
To limit territorial jurisdiction of courts in regard to property.
• Explanation makes it clear that
courts have no power to entertain suits with respect to properties situated
outside India.
• However, Courts are not precluded
from trying any question in respect of property lying outside their territorial
jurisdiction where such questions arise incidentally.
• Is immovable property defined under
CPC?
• Section 3(26) General Clauses Act - "immovable
property" shall include land, benefits to arise out of land, and things
attached to the earth, or permanently fastened to anything attached to the
earth;
Clause(d)
- ‘determination of any other right’
• Does this include only determination
of existing rights?
• It could also include rights not in
existence at the time of institution of the suit.
(New
Mofussil Co. v. Sharker Lal, AIR 1941 Bom 247)
Examples of
suits that fall under clause (d)
• Suit for a mortgage right
• Suit for right to obtain water
course through land
• Suit for right to eject a person
from land coupled with right to recover rent
Examples of suits that do not fall under clause (d)
• A suit for declaration that certain
adoption is valid
• A suit for dissolution of
partnership
• A suit on agreement to lease
• A suit for declaration that a will
is forgery
Clause (e)
wrong to immovable property,
• What actions fall under ‘wrong’
herein ?
• Applies to all wrongs of civil
nature affecting immovable property such as trespass, nuisance, infringement of
an easement etc.
• Such suits must be instituted within
local limits of whose jurisdiction the property is situated.
Clause (f)
for the recovery of ‘movable property
• Such suits must be instituted within
local limits of whose jurisdiction the movable property is attached as it
constitutes an exception to the general rule that movables follow person.
• Proviso to section 16
• Suits to obtain relief or for
compensation for wrong to immovable property maybe instituted at the option of
the plaintiff either in the Court or within the local limits of whose
jurisdiction the property is situate or within local limits of whose
jurisdiction the defendant actually and voluntarily resides, or carries
on business, or personally works for gain, provided the following conditions
are satisfied
- The property is held by / on
behalf of the defendant
- That the relief sought can be
entirely obtained through personal obedience of the defendant.
- The property is situated in
India
The proviso
does not apply when the property is possessed by the plaintiff herself.
• The proviso is based on well known
maxim- equity acts in personum – the court
herein looks into the fulfilment of its decree to the person of the defendant
• The proviso cannot be used to
enlarge scope of the principal section. It applies to only those categories of
cases provided in clause (a) to clause (f) which are limited to instances where
the relief asked for can entirely be obtained by compelling the personal
obedience of the defendant.
• ‘personal obedience’- it must be
interpreted with special reference to the fact that the defendants reside or
work within jurisdiction of the court whose order is to be obeyed , the
obedience must be as the defendants could render without going beyond
jurisdiction
• Executive Engineer, Road Development
Division no. III, Panel vs. Atlanta Ltd. AIR 2014SC 1093
• Applicability of disputes over
payment in relation to works contract in particular district by themselves did
not amount to disputes under section 16
• Section 16- Personal obedience
• Joe and Monica jointly own a house
in Sonepat, Haryana. Joe is an advocate practicing in Delhi, but he also has a
business of manufacturing and selling of video games in Bombay, Maharashtra.
The responsibility of running the business is done through an agent. After his
divorce with Monica , Joe stayed in the same house and Monica shifted to Pune,
Maharashtra.
• Monica is still in love with Joe and
keeps a tab on him though her spies. She finds out that Joe has started dating
a colleague from work called Jessica and intends to gift her the house which is
jointly owned by her and Joe in Sonepat, Haryana. She wants to stop Joe from
gifting the house to Jessica.
• What can Monica do? Can she approach
the court by filing the suit?
• Joe and Monica jointly own a house
in Sonepat, Haryana. Joe is an advocate practicing in Delhi, but he also has a
business of manufacturing and selling of video games in Bombay, Maharashtra.
The responsibility of running the business is done through an agent. After his
divorce with Monica , Joe stayed in the same house and Monica shifted to Pune,
Maharashtra.
• Monica is still in love with Joe and
keeps a tab on him though her spies. She finds out that Joe has started dating
a colleague from work called Jessica and intends to gift her the house which is
jointly owned by her and Joe in Sonepat, Haryana. She wants to stop Joe from
gifting the house to Jessica.
• What can Monica do? Can she approach
the court by filing the suit?
• When conflict is associated with the
determination of rights and duties or any other matter related to immovable
property, a suit can be filed in the court where the property is situated. In
the present scenario, since the house is situated in Sonepat, Monica can file a
suit in a court in the district of Sonepat, Haryana. (1)
• The next question for consideration
is – is this the only option available to Monica? Are there any other
places where she can file a suit to stop Joe from gifting the house to Jessica? To
find out the answer, the first step is to identify the ‘nature of relief’
requested by Jessica. She wants court to issue an order against Joe for not
transferring the house to Jessica in any manner.
• Assuming the court decided in favour
of Monica , the only thing Joe would be required to do for obeying the court’s
decision is to abstain from gifting the house to Jessica . In other words, Joe
does not have to perform any specific acts for which he has to go
outside the territory of court imposing it. For instance – he is not
required to put in extra effort, such as traveling to another place for
registry of land or for submitting certain documents related to land. Hence,
granting Monica the relief will not cause any inconvenience to Joe.
• These kinds of relief are
called equitable remedies. People who are directed to perform such
decisions can satisfy them simply by abstaining from transferring the
property to someone else. These acts are termed as acts of personal
obedience.
• In other words, a court’s decision
which grants an equitable relief can be obtained through the personal actions
of the party by simply refraining from doing something for the obedience of the
court’s decision. However, if the person does not obey such a
verdict, the court also has powers to coerce him by way of punishments for
his/her contempt by initiating proceedings against the defendant
personally. The Court can proceed against the defendant personally by arresting
him or by attaching his property and selling it. These are the powers of
a court having equitable jurisdiction and ways through which equity
courts guarantee personal obedience.
• In such cases, even though the
dispute is regarding immovable property, the relief sought can be awarded
to the aggrieved party by requesting the defendant not to do something. It is
because the subject of perusal is the defendant and not the property, and the
decision of court can be followed simply by his obedience. If the party is only
seeking an equitable remedy, she is not only bound by the rule where it says
that she must only sue where the property resides, but there are three
additional places where defendant can be sued at. The plaintiff can now file
the suit in the following courts:
• Courts with territorial control
over defendant’s area of residence. (2)
• Courts with territorial control
over where defendant carries some business. (3)
• Courts with territorial control over
where the defendant works personally for gain. (4)
• Section 17
17.
Suits for immovable property situate within jurisdiction of different Courts.
• Where a suit is to obtain relief
respecting, or compensation for wrong to, immovable property situate within the
jurisdiction of different Court, the suit may be instituted in any Court within
the local limits of whose jurisdiction any portion of the property is situate :
• Provided that, in respect of the
value of the subject matter of the suit, the entire claim is cognizable by such
Court.
• This section is supplementary to
section 18, but not applicable so far as clause (f) of section 16 is concerned.
• This section is intended for
benefits of suitors and to avoid multiplicity of proceedings.
• It’s pertinent to note this section
will not be applicable where the cause of action as to property situated
outside the local limits is different from that with regard to property
situated within its jurisdiction.
• Madhao Deshpande vs. Madhav
Dharmadhikaree A1R
1988 SC 1347 , the Supreme Court held that where the disputes regarding
properties located within the jurisdiction of two courts was referred to
arbitration and one of the properties was located within the jurisdiction of
one of the courts , the court will have jurisdiction to entertain the award.
Returning of award by the court for presentation to the court within whose
jurisdiction other properties forming subject matter of dispute was located,
was not proper. s
• Section 18
• Section 18 of Civil Procedure Code
of India – Place
of institution of suit where local limits of jurisdiction of Courts are
uncertain
• (1) Where it is alleged to be
uncertain within the local limits of the jurisdiction of which of two or more
courts any immovable property is situate, any one of those courts, may, if
satisfied that there is ground for the alleged uncertainty, record a statement
to that effect and there upon 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.
• (2) 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.
• In circumstances where the
jurisdiction is uncertain, the courts may try the suit after recording a
statement as to uncertainty, and thereupon proceed to entertain and dispose off
the suit relating to that property and its decree in the suit shall have the
same effect as if the property were situated within the local limits of its
jurisdiction.
• Section 19
• Section 19 of Civil Procedure Code
of India – Suits
for compensation for wrongs to person or movables.
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.
• This section provides plaintiff the
option to file a suit where the wrong is committed or where the defendant
resides or where the defendant carries on business or works for personal gains.
‘Wrong’
• It means infringement of legal right
and is consequently an actionable wrong. The section applies to only actionable
wrongs to person/ property.
• Wrong to the person refers to the
same thing as trespass to the person.
‘Resides’
• This word does not apply to legal entities.
Where a tort was committed for which the Secretary of State was liable, the
suit could be brought only where the tort was committed and not elsewhere on
the ground that he resided there. ( Govinda Rajulu Naidu vs. Secretary of
State , AIR 1927 Mad 689)
• Suit against Government –
• The aforesaid principle would not be
applicable in case of suits to be instituted against government for arrears of
salary and for travelling allowance at the place where the employee was
residing throughout, but was employed at a place other than his residence, it
was held that the suit could not lie at the place of his residence.
• ( State of UP vs. Raja Ram AIR 1966
All 159)
• Section 20
20.
Other suits to be instituted where defendants reside or cause of action arises.
Subject
to the limitations aforesaid, every suit shall be instituted in 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
institution; or
(c) the
cause of action, wholly or in part, arises.
Explanation.-A
corporation shall be deemed to carry on business at its sole or principal
office in 3[India] or, in respect of any cause of action
arising at any place where it has also a subordinate office, at such place.
• This section enacts the rule as to
forum in cases of personal actions and has to be read subject to provisions of
section 15 to section 19 of the Code.
• Object –
The defendant should not be put to trouble and expense of travelling to defend
himself.
• Leave of the Court- This is required
when some of the defendants are within and others outside the jurisdiction of the court if the court refused leave, the suit cannot proceed unless non-resident
defendant agrees.
• Cause of action –
it maybe defined as the fact or facts which entitle a party to seek redressal
in a court of law.
Union of
India vs. Adani Exports Ltd AIR 2002 SC 126
• The existence of registered office
of a company within territorial jurisdiction does not ipso facto give a
cause of action to that party. The fact that the respondents carry on their
business of export and import from one place has no bearing on lis or
dispute involved in that case. It was held that in determination of territorial
jurisdiction the consideration that apply to a criminal case, may not always
apply to civil disputes.
Duro
Flex Pvt Ltd vs. Duroflex Sittings Ltd. AIR 2015 Mad 30
• The registration of a trademark is a
fact, but cause of action would consist of a bundle of facts. Thus, more than
one fact would have to be taken into consideration to determine the location of
a particular trademark which connects the trademark to that place.
• A suit for infringement of
copyright/trademark shall be instituted in a place where the infringement takes
place.
• In a suit for contract –
the place of cause of action must be determined where the original contract is
negotiated/taken place and not where subsequent negotiations happen.
Bhagwandas
vs. Giridharlal AIR 1966 SC 543
• The
Supreme Court held that acceptance by phone is a part of cause of
action.
• A.B.C.
Laminart Pvt. Ltd. and Ors. vs. A.P. Agencies, Salem
Air 1989 sc 1239
•
In the matter of a contract there may arise
causes of action of various kinds. In a suit for damages for breach of contract
the cause of action consists of the making of the contract, and of its breach,
so that the suit may be filed either at the place where the contract was made
or at the place where it should have been performed and the breach occurred.
The making of the contract is part of the cause of action. A suit on a
contract, therefore, can be filed at the place where it was made. The
determination of the place where the contract was made is part of the law of
contract. But making of an offer on a particular place does not form cause of
action in a suit for damages for breach of contract. Ordinarily, acceptance of
an offer and its intimation result in a contract and hence a suit can be filed
in a court within whose jurisdiction the acceptance was communicated. The
performance of a contract is part of cause of action and a suit in respect of
the breach can always be filed at the place where the contract should have
performed or its performance completed. If the contract is to be performed at
the place where it is made, the suit on the contract is to be filed there and
nowhere else In suits for agency actions the cause of action arises at the
place where the contract of agency was made or the place where actions are to
be rendered and payment is to be made by the agent. Part of cause of action
arises where money is expressly or impliedly payable under a contract. In cases
of repudiation of a contract, the place where repudiation is received is the
place where the suit would lie. If a contract is pleaded as part of the cause
of action giving jurisdiction to the Court where the suit is filed and that contract
is found to be invalid, such part of cause of the action disappears. The above
are some of the connecting factors.
• Section 21
• 21. Objections to jurisdiction.
• (1) No objection as to the place of
suing shall be allowed by any appellate or Revisional Court unless such
objection was taken in the Court of first instance at the earliest possible
opportunity and in all cases where issues or settled at or before such
settlement, and unless there has been a consequent failure of justice.
• (2) 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 of first instance at the earliest possible
opportunity, and in all cases where issues are settled, at or before such
settlement, and unless there has been a consequent failure of justice.
• (3) No objection as to the
competence of the executing Court with reference to the local limits of its
jurisdiction shall be allowed by any Appellate or Revisional Court unless such
objection was taken in the executing Court at the earliest possible
opportunity, and unless there has been a consequent failure of justice.
• Does this apply to High court in
exercise of its original civil jurisdiction?
Objective
of this section
• When a case has been tried by a
court on merits it should not be liable to be reversed purely on technical
grounds, unless it has resulted in failure of justice.
• The policy of legislature is to
treat objections to both pecuniary and territorial as technical. It is not open
to consideration to appellate courts unless there has been prejudice on merits.
• When there is no failure of justice,
can the place of suing be allowed to take as defense for the first time in
appellate or revisional court ?
(RSDV
Finance Company Pvt.Ltd vs. Shree Ballabh Glass Works, AIR 1993 SC 20194)
• Rahul files a suit against Shilpa to
recover possession of a house. He values his claim in the plaint as Rs.4
lakhs. The suit is filed before the City
Civil Judge, Bengaluru, which has jurisdiction to try the suit upto 5 lakhs.
The market value of the house is 7 lakhs, but Shilpa does not object to it. The
Decree is passed in favour of Rahul. Can Shilpa now object to it before the
Appellant court ?
• Three conditions to be fulfilled
- The objection was taken at the
court of first instance
- It has to be raised at the
earliest possible opportunity in cases where issues are settled , at or
before such settlement
- There has been a consequent
failure of justice.
All these
conditions must co-exist.
(Pathumma
v. Kutty AIR 1981 SC 1683)
Objection
as to the local jurisdiction of a court can be waived.
• Limitation as to jurisdiction may be imposed-
• a.
As to the subject matter
• b.
As to the person
• c.
As to the pecuniary value of the suit or
• d.
As to the place or may partake of two or more of these characteristics.
• It
is fundamental that judgment of a court without jurisdiction is a nullity.
What
happens if the trial court has not decided the suit on merits ?
• Is there a distinction between lack
of jurisdiction with respect to subject matter of a suit and that of
territoritorial and pecuniary jurisdiction?
• In the case of former category, the
judgment would be a nullity.
Mantu
Sarkar v. Oriental Insurance Co. ltd ( AIR 2009 SC 1022)
Does this
section apply to execution proceedings?
• SECTION 21 A
21-A.
Bar on Suit to set aside decree on objection as to place of suing:
No suit
shall lie challenging the validity of a decree passed in a former suit between
the same parties, or between the parties under whom they or any of them claim,
litigating under the same title, on any ground based on an objection as to the
place of suing.
Explanation:
The
expression “former suit” means a suit which has been decided prior to the
decision in the suit in which the validity of the decree is questioned, whether
or not the previously decided suit was instituted prior to the suit in which
the validity of such decree is questioned
• Section 21 A was inserted in order
to get over a conflict of judicial views. Now, if a decree is passed against a
person without objection as to jurisdiction having been raise, that person
cannot in the subsequent suit, attack on the ground of jurisdiction.
There is an
ambiguity / defect in section 21 A. Can you recognise it?
• Section
10- Res subjudice
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 1[India]
having jurisdiction to grant the relief claimed, or in any Court beyond the
limits of 1[India] established or continued by 2[the
Central Government] 3[***] and having like jurisdiction, or
before 4[the Supreme Court].
Explanation- The pendency of a suit in a foreign Court
does not preclude the Courts in 1[India] from trying a suit
founded on the same cause of action.
National Institute of Mental Health & Neuro Sciences
v. C. Parameshwara, 2005 (2) SCC 256
• It
is opined that the underlying object of Section 10 CPC is to prevent the court
of concurrent jurisdiction from simultaneously trying two parallel suits in
respect of same subject matter. It is to avoid recording of conflicting
findings on issues which are directly and substantially involved in previously
instituted suit. The fundamental test is whether the final decision in the
previous suit would operate as res judicata in subsequent suit.
• Section
10- conditions
- There
are two suits, one previously instituted and one subsequently instituted
- The
matter in issue in the subsequent suit must be directly and substantially
in issue in the previous suit
- Both
the suit must be between the same parties or their legal representatives
- The
previously instituted suit must be pending
- The
court in which previous suit is instituted must have the jurisdiction to
grant relief claimed
- Both
the parties must be litigating under the same title in both the suits.
Indian Bank vs.
Maharashtra State Transport Co-opertaive Marketing Federation Ltd AIR 1998 SC
1952
Aastha has filed a
suit against Anand for specific
performance before the City Civil Court Bengaluru. Anand institutes another suit against Aastha
(subsequent suit) before the City Civil Court Bengaluru under the same contract
for specific performance . The court after admitting the subsequent suit, stays
that suit on an application filed by Aastha. Subsequently, Anand seeks an interim order of attachment of
the property in the subsequent/stayed suit.
Does the court have the power
- To
admit the institution of the subsequent suit in the first place?
- To
pass an interim order in the subsequent suit ?
• Can
the court only stay suits if it falls
under section 10?
• Does
the court have inherent powers ?
• Should
all parties be the same?
• Is
a decree passed in contravention of
Section 10, a nullity ?
• If
the second suit proceeds to trial, can
the court dismiss it ?
• Can
the court under section 10 examine the merits of the matter ?
Pukhraj D Jain v. Gopalakrishna (2004) 7 SCC 251
If the court opines that the subsequent suit can be decided
on purely legal point, it can decide such a suit . Section 10 does not take
away the power of the court to examine
the merits of the matter. It is open to the court to decide such suit.
• A
decree passed in contravention of section 10 is not a nullity.
• Manohar
Lal v. Seth Hiralal AIR 1962 SC 527
Section 10 is a rule of procedure, which can be waived by a
party. If the parties waive their right and expressly ask the courts to proceed
with subsequent suit, they cannot afterwards challenge the validity of
subsequent proceedings.
Munilal vs.
Sarvajeet AIR 1984 Raj 22
• Section 11- Res Judicata
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.
Explanation
I:
The
expression “former suit” shall denote a suit which has been decided prior to
the suit in question whether or not it was instituted prior thereto.
Explanation
II:
For the
purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of
such Court.
Explanation
III:
The
matter above referred to must in the former suit have been alleged by one party
and either denied or admitted, expressly or impliedly, by the other.
Explanation
IV:
Any
matter which might and ought to have been made ground of defence or attack in
such former suit shall be deemed to have been a matter directly and
substantially in issue in such suit.
Explanation
VI:
Where
persons litigate bona fide in respect of a public right or of a private right
claimed in common for themselves and others, all persons interested in such
right shall, for the purposes of this section, be deemed to claim under the
persons so litigating.
Explanation
VII:
The
provisions of this section shall apply to a proceeding for the execution of a
decree and references in this section to any suit, issue or former suit shall
be construed as references, respectively, to a proceeding for the execution of
the decree, question arising in such proceeding and a former proceeding for the
execution of that decree.
Explanation
VIII:
An issue
heard and finally decided by a court of limited jurisdiction, competent to
decide such issue, shall operate as res Judicata in a subsequent suit,
notwithstanding that such court of limited jurisdiction was not competent to
try such subsequent suit in which such issue has been subsequently raised.
Conclusiveness of a judgment
• Res
Judicata means a final judicial decision pronounced by a judicial body having
competent jurisdiction over the cause or matter in litigation, and over the
parties thereto.
• Nemo
debet his vexari pro una et esdem causa (no man should be vexed twice for the
same cause)
• Interest reiplicae ut sit finis litium (It is in the
interest of the state that there should be an end to litigation)
• Re
judicata pro veritate occipitur (A judicial decision must be accepted as
correct/truth
• The
1st principle is of private justice while 2nd and 3rd
are based on public policy
• The
general principle of Res Judicata is that once a matter or issue is finally
decided by a competent court no party can be permitted to reopen it in a
subsequent litigation.
• One
suit one decision for any single dispute.
• CONDITIONS-
SECTION 11
Conditions
1. 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 (Exp. III) or constructively (Exp. IV)
in the former suit (Exp. I and VII)
2. Former suit must have been a suit between the same
parties or between parties under whom they or any of them claim. (Exp. IV)
3. Such parties must have been litigating under the same
title in the former suit.
4. 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 (Exp. II and VIII)
5. The matter directly and substantially in issue in the
subsequent suit must have been heard and finally decided by the court in the
former suit (Exp. V).
Sheodan Singh v. Daryo Kunwar AIR 1966 SC 1332
Illustrations
- A sues B, D and C. In order to
ascertain A’s claim, the court has to interpret a Will. Whether the
decision regarding construction of the Will on rival claims of the
Defendant operate as Res Judicata in subsequent suits?
- A files a petition before the
High Court of Karnataka under Article 226 of the Constitution for
reinstatement in service and consequential benefits contending that an
order of dismissal passed against her is illegal. The petition is
dismissed. Can A file a fresh petition before the Supreme Court of India
under Article 32 of the Constitution?
Daryao vs.
State of UP AIR 1961 SC 1457
“The
binding character of judgments of courts of competent jurisdiction is in
essence a part of the rule of law on which the administration of justice, so
much emphasized by the Constitution, is founded. A judgment of the High Court under Art. 226
passed after a hearing on merits as aforesaid must bind the parties till set
aside in appeal as provided by the Constitution and cannot be circumvented by a
petition under Art. 32.”
• Is the court concerned with the
correctness of a decision while applying the rule of Res Judicata ?
• A wrong decision by a court having
jurisdiction is much binding between the parties as a right one and it maybe
superseded only by an appeal or revision to a higher court or tribunal or other
procedure known to law.
Sobhag
Singh v. Jain Singh AIR 1968 SC 1328
Matter in
issue
Matter
in issue
The rights
litigated between the parties, i.e., the facts on which the right is claimed
and the law applicable to the determination of that issue.
Issues are
of 3 kinds: issues of facts, issues of law and mixed issue of law and fact
‘Matter
directly and substantially in issue’
• ‘Directly’ means, directly at
once, immediately, without intervention.
• A fact cannot be said to be directly
in issue if the judgment stands whether the the fact exists or does not exist.
• ‘Substantially’ means essentially , materially or in
substantial manner.
• A matter can be said to be
substantially in issue if it is of importance for decision of a case.
• Whether or not a matter is directly
and substantially in issue would depend whether a decision on such issue would
materially affect the decision of the suit.
‘Matter actually in issue’
• A matter is actually in issue when
it is in issue directly and substantially and a competent court decides to try
it on merits.
• A matter is actually in issue when
it is alleged by one party and denied or admitted by the other. [Explanation
III]
‘Matter
constructively in issue’
• A matter is said to be
constructively in issue when it ‘might and ought’ to have been made a ground of defense/attack in the former suit.
• The objective of Explanation 1V is
to compel the parties in a suit to take all the grounds of defense/attack.
Constructive
Res Judicata
• Explanation IV to Section 11 is referred
to as the ‘artificial form of res judicata, and provides that if a plea
could have been taken by a party in a proceedings between her and her opponent,
she should not be permitted to take that plea against the same party in a
subsequent proceeding with reference to the same subject matter.
• This is not just opposed to public
policy , wherein the harassment of opponent is disallowed, but if such an
action would be allowed, than the doctrine of finality of judgement would be
materially affected.
• The primary object of section 11 is
to cut short litigation by compelling the parties to the suit to rely upon all
grounds of attack or defense which are available to them. If the plaintiff or
defendant fails to take up such ground which he might or ought to have taken,
it would be treated to have been raised.
• The word ‘might’ presupposes
the party affected had knowledge of the ground of attack/defense at the time of
the previous suit.
• ‘Ought’ compels the party to take such grounds of attack/defense which depends on
the facts of each case.
• There is no rigid rule applied here.
One of the tests, however, is to see
whether by raising the question the decree which was passed in a previous suit
should have been defeated/varied or in any way affected.
Illustrations
• Adithya sues Shilpa for declaration
that he is the owner of certain property. The suit is dismissed holding that he
is not the owner. At the time of the suit, Adithya is in adverse possession of
the property but has not perfected the title. After the statutory period,
Adithya files another suit on the basis his title by adverse possession. Is it
barred under constructive Res judicata?
• Constructive Res Judicata
State of
U.P v. Nawab Hussain (1977)2
SCC 806
A, a
sub-inspector of police was dismissed from service by the D.I.G. He challenged
the order of dismissal filing a writ stating that he was not given a reasonable
opportunity of being heard before the order was passed. The petition was dismissed. Thereafter he files
a suit and raised an additional ground that the D.I.G had no power to dismiss
him since he was appointed by I.G. The Trial court and Appellate court held
that the suit was not barred by Res judicata. The case was then appealed to the
Supreme Court.
Matter
collaterally or incidentally in issue
• The words directly and substantially
in issue in section 11 have been used in contradistinction to the words
collaterally or incidentally in issue.
• Decisions on matters collateral or
incidental to the main issues will not operate as res judicata.
Findings on
several issues
• Whether there are findings on
several issues or only one issue, the findings on all issues will operate as
res judicata.
‘Former suit’
• It denotes a suit which has been
decided prior to suit in question whether or not it was instituted prior
thereto.
• It is not the date on which the suit
is filed, but the date on which the matter is decided.
• Section 11- competent courts-
explanation VIII
• Competent
court – Competent to try the subsequent suit if brought at the time the first
suit was brought.
• In
other words, the relevant point of time to decide the competency is when the
former suit was brought, not the subsequent suit.
• Test
– Whether the second suit could have been tried by the first court?
• The
court which decided the case
- A
court of exclusive jurisdiction- Revenue courts, Administrative courts
etc.
- A
court of limited jurisdiction-
- A
court of concurrent jurisdiction
Res
Judicata between ‘co-defendants’
• As a matter maybe res judicata
between defendants and plaintiffs, it maybe res judicata between co- plaintiffs
and co-defendants.
• An adjudication will amount to res
judicata between co-defendants, if the following conditions are satisfied.
- There must be conflict of
interest between co-defendants
- It must be necessary to decide
that conflict in order to give relief to the plaintiff
- The question between
co-defendants should have been finally decided and
- The co-defendants were
necessary or proper parties in the former suit.
(Munni Bibi
v. Trilok Nath AIR 1931 PC 114), State of Gujarat v. M.P. Shah Charitable Trust
(1994) 3 SCC 552
• A sues B,C and D. In order to decide the claim of A, the court
has to interpret a Will. The decision regarding the construction of the Will on
the rival claims of the defendants will operate as res judicata in any
subsequent suit by any f the defendants against the rest.
• If a party obtains a decree by
fraud/collusion, is it possible to apply res judicata?
The
doctrine of res judicata must, however, be applied to co- defendants with great
care and caution. The reason is that fraud is an extrinsic collateral act,
which vitiates the most solemn proceedings of courts of justice. If a party
obtains a decree from the court by practicing fraud or collusion, be cannot be
allowed to say that the matter is res judicata and cannot be re-opened. There
can also be no question of res judicata in a case where signs of fraud or
collusion are transparently pregnant or apparent from the facts on record.
Mahmood
Sahab v. Syed Ismail (1995)3
SCC 693
Pro
forma Defendant
• A Defendant against whom no relief
is called pro forma defendant.
• A person may be added as pro
forma defendant merely because his presence is necessary for complete and
final decisions of the questions involved in suit.
Ananya sues
Samarth for possession of a property, contending that he is a tenant of Siri.
Siri is joined as pro forma defendant and no relief is claimed against
her. The suit is dismissed as the court
finds Samarth to be the owner. Siri later sues Samarth for possession on the
basis of title. Samarth takes a
contention that the issue pertaining to the ownership of the property has been
decided and must operate as res judicata, despite Siri being a pro forma party.
In this
case, the suit was decided only between Ananya and Samarth and Siri is the
proforma defendant and it will not amount to res judicata.
Will a
relief sought against pro forma defendant always operate as res judicata?
• Section 11- Representative
suits- Explanation VI
Representative suits- Explanation VI
• These
are suits instituted by or against a person in her representative capacity, as
against the individual capacity.
• See
O.1 R.8, section 92
• This
explanation provides that where persons litigate bona fide in respect of
a public right or of a private right claimed in common for themselves or
others, and all persons interested in such right shall for the purposes of
section 11, be deemed to claim under the persons so litigating.
Conditions
- There
must be right claimed by one or more persons in common for themselves and
others not expressly named in the suit.
- The
parties not expressly named in the suit must be interested in such right
- The
litigation must have been conducted bona fide and on behalf of all parties
concerned and
- If
the suit is under O.1, R.8, all conditions laid down therein must be
strictly satisfied.
Ifthikar Ahmad v. Syed Meharban Ali AIR 1974 SC 749 and
Narayana Prabhu Venkanteswar Prabhu v Narayana Prabhu
Krishna Prabhu Air 1977 SC 1268
• Exceptions
to res judicata
1. When judgment is passed without jurisdiction or beyond
jurisdiction (Narayana Prabhu Venkanteswar Prabhu v Narayana Prabhu Krishna
Prabhu Air 1977 SC 1268)
2. When matter involves a pure question of law ( Isabeela
Johnson v. Susai 1990 (2) KLT 968 (SC)
3. When judgment has been obtained by committing fraud on
the court (Raju Ram Singh Vasudev v. Mahesh Deora Bhivapukar (2008) 9
SCC 54)
4. Dismissal of writ without any speaking order (Hoshnak
Singh v. UOI AIR 1979 SC 1328
• Suit
dismissed for default? ( Chand Kaur v. Pratab Singh (1887-88) 151A 156 (PC)
• Fresh
Suit on the Same cause of action?
• Exparte
decree? (Chandulal Agarwala v. Khalilur Rahaman AIR 1950 PC 17)
• Change
in situation? (Korin v. Indian Cables Co. Ltd AIR 1978 SC 312)
• Decision
by a small causes court ? ( Smt.Ginnabai v. Chhanbai AIR 1982 SC 20)
• Foreign
judgment.
• Section
13
Sec. 2(5) defines Foreign Court
Sec. 2(6) defines foreign Judgment
• It
is based on Private International Law
• If
the foreign Judgment is delivered by a competent court having jurisdiction, it is
enforceable in India
• Section
13 is a substantive law in nature
• Foreign
judgment. Section 13
• The
competency over jurisdiction depends on
- 1.
Territorial competency over the subject matter and
- 2.
Over the defendant.
• The
competence or jurisdiction in any other sense is not regarded as material by
the courts in India.
• exceptions
1. Where it has not been pronounced by a court of competent
jurisdiction
2. Where it is not disposed of on merits
3. Where it is against the established principles of
International Law or refusal to recognize the Indian Law
4. Where it is against the principles of natural Justice
5. Where it has been obtained by fraud and
6. Where it is on breach of any law in force in India.
• exceptions
Presumption Section 14
• Certified
copy – Pronounced by a competent court.
• Submission
of Jurisdiction – Voluntary- Implied or express
◦
Plaint
◦
Order
7
◦
Plaint
◦
Rules
1-8 , contain particulars of plaint
Parties
to suit
◦
There
must be at least one plaintiff and one defendant in every suit. All particulars
which are necessary to identify the parties must be there
Cause of
action – Rule 1(e)
◦
Every
suit presupposes the existence of cause of action against the defendant because
if there is no cause of action, the plaint will have to be rejected.
In Kuldeep
Singh vs. Ganpat dayal (1996)1 SCC 243, it was held that
◦
‘The object underlying Order VII Rule (1) (e) which requires that the
plaint shall contain the particulars about the facts constituting the cause of
action and when it arose, is to enable the court to find out whether the plaint
discloses the cause of action because the plaint is liable to be rejected under
Order VII Rule 11 CPC if it does not disclose the cause of action. The purpose
behind the requirement that the plaint should indicate when the cause of action
arose is to help the court in ascertaining whether the suit is not barred by
limitation.
◦
Any error on the part of the plaintiff in indicating the date on which
the cause of action arose would be of little consequence if the cause of action
had arisen on the date on which the suit was filed and the suit was within
limitation from the said date. The error in mentioning the date on which the
cause of action had arisen in the plaint in such a case would not disentitle
the plaintiff from seeking relief from the court in the suit.’
Jurisdiction
of the court
◦
The
plaint must state all particulars demonstrating how the court has pecuniary and
territorial jurisdiction
◦
What
happens when the jurisdiction of the court is disputed by the Defendant?
Valuation
◦
The
plaintiff must state in the plaint that the valuation for the subject matter of
the suit to indicate that it falls within the pecuniary jurisdiction of the
suit and also the court fees to be paid.
Mode of
valuation
◦
Prima
facie, it is the plaintiff’s valuation in the suit that determines the
jurisdiction of the court and not the amount for which , ultimately the decree
maybe passed by the court.
◦
Usually
the court will accept the valuation of the plaintiff in the plaint and proceed
to decide the suit on merits.
Mode of
valuation
◦
That
does not however mean that the plaintiff can deliberately undervalue or
overvalue a suit.
◦
If
it appears to the court that the valuation is falsely made, it can demand the
plaintiff to prove the valuation. (see O.7, R.10)
◦
What
happens when the valuation of the subject matter differs from valuation for
court fees?
Limitation
– Rule 6
◦
Rule
6 provides that where the suit is barred by limitation, it is necessary for the
plaintiff to show the ground of exemption in the plaint
◦
The
proviso (added by the 1976 amendment) empowers the court to permit the
plaintiff to rely on a new ground for exemption if it is not inconsistent with the grounds mentioned in the plaint
◦
Rohan
worked with Google for a period of 3 years. Despite working very hard, he was
dismissed from his job without notice. Rohan files a case before the labour
tribunal. The case goes on for some years. During the course of the case, he
realises that he does not fall under the ambit of an employee as required under
the labour law. And that he should in fact institute the suit before a civil
judge and seek damages. However at this stage, the period of limitation to file
the civil suit has expired. Can he file the suit and seek exemption under O.7
R.6?
Relief – Rule 7,8
◦
Every
suit must state the relief claimed by the plaintiff
◦
Where
the relief is founded on separate and distinct grounds, they should be so
stated.
◦
Relief
not founded on pleadings cannot be granted.
◦
A
suit cannot be dismissed merely because the plaintiff sought a relief larger
than what can be granted.
◦
If
a prayer for costs is not added, can the court grant the same ?
◦
Admission
of Plaint
◦
Rule
9 lays down the procedure for admission of plaint.
◦
It
provides for filing of copies of the plaint by the plaintiff and also requires
him to pay the requisite fees for service of summons on the defendants within 7
days.
Plaint (Order
7)
◦
Return
of Plaint - Rule 10
◦
Where
at any stage of the suit the court finds out that it has no territorial or
pecuniary jurisdiction, it returns the plaint to be presented at the proper
court.
◦
After
return of the plaint to a court of competent jurisdiction, it amounts to
institution of fresh suit.
◦
Return
of Plaint - Rule 10B
◦
It
is pertinent to note that the court can only return the plaint and not dismiss
it.
◦
This
rule applies only to plaint and not applications.
◦
What
is the difference between power to transfer and power to return a plaint ?
◦
Rule
10 A has been added to obviate serving of summons on the defendant where return
of plaint is made after the appearance of the parties.
◦
Rule
10 B has been added to empower the court hearing the appeal against an order of
return of plaint , the court instead of returning the plaint, it can transfer
the suit to a court in which it should have been instituted.
◦
Rejection
of plaint –O.7, Rule 11
◦
Where it does not disclose a cause of action
◦
If
the plaint filed by the Plaintiff does not disclose a cause of action, the
court will reject it.
◦
Power
to reject a plaint under this clause should be exercised only when the court
comes to the conclusion that even if all the allegations set out in the plaint
are proved, the plaintiff would not be entitled to any relief.
◦
There
is a difference between a plaint that does not disclose cause of action, and a
plaint which has no cause of action.
◦
Further,
rejection of plaint under this rule does not amount to dismiss of suit.
◦
Rejection
of plaint –O.7, Rule 11
◦
The
plaint can only be dismissed as a whole. A part of plaint cannot be rejected.
◦
Where relief claimed is undervalued
◦
A
court has to reach a finding that the relief claimed is undervalued and
determine the correct valuation and require the plaintiff to correct the
valuation within a time to be fixed by the court. If the plaintiff fails to do
that, the plaint is liable to be rejected.
◦
Example
: In a suit for dissolution of partnership and for accounts, A suit has been valued for the purpose
of jurisdiction at Rs.25 lakhs and at Rs.500 for the purpose of court fee.
◦
Where plaint is insufficiently stamped
◦
Sometimes
the relief claimed by the plaintiff is properly valued, but the plaint is
written on an insufficiently stamped paper and the plaintiff fails to pay the
requisite court fees within the time fixed or extended by court.
◦
The
court must give the Plaintiff time to make amends for deficiency in court fee
◦
When a suit is barred by law
◦
When
a suit appears in the statement to be barred by law, the suit will be rejected.
◦
For
example in a suit against the government, the plaint does not state that a
notice required by section 80 of the Code has not been given.
◦
Its
is the duty of the court to consider suo motu if the plaint is barred by law or not.
◦
Where plaint is not filed in duplicate
◦
Where there is non-compliance of statutory provisions
◦
Other grounds
◦
This
is not an exhaustive provision. For instance if the plaint is signed by a
person who is not authorized by the plaintiff, and if the same is not cured
within the prescribed time, it can be rejected.
◦
Sections 27 and 28 r/w Order 5- Summons
◦
The intimation sent by the court to the
defendant about the suit is referred to as summons.
◦
Object of issuing summons– Principles of natural
justice , audi alterum partem
◦
Essentials
1. It should be signed by judge or such officer appointed
(Rule 1)
2. The seal of the court (Rule 1)
3. The date and time of appearance (Rule 6)
4. The place where he/she has to appear(Rule 3)
5. Must be accompanied by a copy of the plaint (rule 2)
6. Summons should be in the form prescribed in Appendix B
form 1 to the schedule
7. The purpose for which the summons is issued (Rule 5)
8. Normally there will be an order to produce all documents
in his/her possession or power and to produce witnesses whom he wants to
examine on his behalf. (Rule 7 and 8)
◦
Order 5-
Summons
◦
Order 5 deals with summons to Defendants while
Order 16 deals with summons to witnesses.
◦
When a defendant receives summons
◦
Are some persons exempted from appearing on
receiving summons ?
a) Person
entitled for exemption under Section 133 of the Code
b) A
woman who is not appearing in public – section 132 of the code
c) A
person cannot be ordered to appear unless he/she resides
◦
Within local limits of the court’s ordinary
jurisdiction or
◦
Outside such limits but at a place less than 50
miles or 200 miles ( where public conveyance is available) from the court –
rule 4
◦
Modes of Service Order V Rule 9-30
◦
1. Personal or Direct Service Order
V Rules 10-16 & 18
◦
a. Whenever it is practical, summons must be
served to the defendant in person or to his authorized agent. (Rule 12)
◦
b. If the defendant is absent from his residence
at the time of service of summons, or is not likely to be found in his
residence within a reasonable time, the summons may be served on any adult
member of his family residing with him. (Rule 15)
◦
c. A servant is not a member of his family (Exp.
Rule 15)
◦
d. In a suit relating to any business or work
against a person, not residing within the territorial jurisdiction, it may be
served to the manger or agent carrying on such business or trade. (Rule 13)
◦
Modes of Service Order V Rule 9-30
◦
e. in a suit for immovable property, if the
service of summons cannot be made on the defendant personally and he has no
authorized agent/person, the service may be served on any agent/person in
charge of the property. (Rule 14)
◦
f. Where there are two or more defendants, the
summons should be made on each defendant. (Rule 11)
◦
g. In all the above cases, the service of
summons should be made by tendering a copy thereof. (Rule 10)
◦
h. When the serving officer delivers the
summons, the person who accept the summons must acknowledge the receipt of
service of summons (Rule 16)
◦
i. The serving officer, must make an endorsement
on the original summons stating the time, manner of service, the name and
witnessing the serving of summons. (Rules 18)
◦
2. Service by Court Rule 9
◦
a. If the defendant is residing within the
jurisdiction of the court, shall be served through court officer or approved
courier service. (Rule 9(1) &(2)
◦
b. Summons can be served by Registered Post with
A/D, courier service, fax message, email, or by any other permissible means of
transmission. (Rule 9(3)
◦
c. If the defendant is residing outside the
jurisdiction of the court, the summons shall be served by an officer whose
jurisdiction the defendant resides. (Rule 9(4)
◦
d. The refusal of acceptance is also a valid
service(Rule 9(5)
◦
e. where summons is properly addressed, prepaid
and duly sent by RPAD, even in the absence A/D slip, the presumption is that it
was served (Pro. Rule 9(5)
◦
Salem Advocate Association v. Union of
India AIR 2005 SC3353
◦
Service of Summons/notice and completion of
pleadings:
◦
(a) Summons may be served as indicated in Clause
(3) of Rule 9 of Order V.
◦
(b) In the case of service of summons by the
plaintiff or a courier where a return is filed that the defendant has refused
notice, the return will be accompanied by an undertaking that the plaintiff or
the courier, as the case may be, is aware that if the return is found to be
false, he can be punished for perjury or summarily dealt with for contempt of
Court for abuse of the provisions of the Code. Where the plaintiff comes
forward with a return of 'refusal', the provisions of Order 9A Rule (4) will be
followed by re-issue of summons through Court.
◦
Salem Advocate Association v. Union of
India AIR 2005 SC3353
◦
(c) If it has not been possible to effect
service of summons under Rule 9 of Order V, the provisions of Rule 17 of Order
V shall apply and the plaintiff shall within 7 days from the date of its
inability to serve the summons, to request the Court to permit substituted
service. The dates for filing the written statement and replication, if any,
shall accordingly stand extended.
◦
Service of summons
Service by
court – Rule 9
Includes
Personal Service- Rule 10-16
Service
by Court – Rule 9
◦
Summons
to defendant residing within jurisdiction –
Through court officer ‘
◦
Where
the defendant is residing outside the jurisdiction of the court –
summons can be served through officer of the court in whose jurisdiction the
defendant resides
◦
It
can also be served by Registered post, RPAD, Speed Post, courier service, fax,
email or ‘ by any other permissible means of electronic transfer’.
◦
When
summons is sent by RPAD, is it mandatory to show the acknowledgement slip?
◦
Illustration
◦
Vinay files an execution petition on behalf of
his client. The client who is already aware of the delay caused in the case by
the regular summons process, urges Vinay to come up with a solution and serve
the defendants sooner. It would be difficult to convince the judge, who is
quite conventional, to allow only summons by email. Advise Vinay.
◦
Anirudh files an execution petition on behalf of
his client. The client who is already aware of the delay caused in the case by
the regular summons process, urges Anirudh to come up with a solution and serve
the defendants sooner. It would be difficult to convince the judge, who is
quite conventional, to allow only summons by email. Advise Anirudh.
◦
3. Service by Plaintiff Rule 9A
◦
Also referred to as hand summons, this is done
in addition to summons served by the court.
◦
Salem Advocate Association v. Union of India AIR
2005 SC3353
◦
4. Substituted Service Rules 17, 19 & 20
As the name suggests substituted service means service of
summons by a mode substituted for the ordinary mode of service.
There are two modes of service:
◦
a. where the defendant or his/her agent refuses
to sign the acknowledgement
◦
b. where the serving officer, after due and
reasonable diligence, cannot find the defendant
◦
Substituted service
◦
Second mode of service of summons as provided by
Rule 17, the service is effected by affixing a copy of summons without the
order of the court. Thus declaration by the court about the due service of
summons is essential.
◦
If the provisions of rule 19 have not been
complied with, service of summons cannot be said in accordance with law.
◦
It must be remembered it’s not a regular mode of
service and hence it should not be normally allowed and can be effected only as
a last resort.
◦
Illustration
◦
Deepika files a divorce petition against
Ranveer. However, Ranveer who is extremely unhappy with this decision and who
presently resides at Australia for a couple of months tries to evade summons.
Deepika’s lawyer thus sends summons to Ranveer by whatsapp and convinces her
that the blue double tick seen on whatsapp is a proof of valid delivery of
summons. Deepika is apprehensive about this. Advise her.
◦
Can summons be served through whats app ?
◦
Madhav Vishwanath Dawalbhakta and Ors. vs.
Bendale Brothers (07.08.2018 - BOMHC) : MANU/MH/2411/2018
◦
Tata Sons Limited & Ors vs John Doe(s)
& Ors CS(COMM) 1601/2016- Delhi HC permitted the right to serve summons
to the Defendant by Whatsapp
◦
Kross Television India Pvt Ltd & Another
Versus Vikhyat Chitra Production & Others SUIT (L) NO. 162 OF 2017-
Bombay HC permitted the right to serve summons to the Defendant by Whatsapp
after normal attempts failed
◦
Bhim Rathke v. R.K.Sharma, Special Judge
Patiala House, 22.02.2018, dismissed serving of summons by whatsapp.
◦
Special cases
◦
Outside the jurisdiction of the court- R21,23
&24
◦
Out of India- R 25
◦
Foreign country- 26 &26A
◦
Public Officer- 27&29
◦
Solider- 28&29
◦
Prisoner- 24
◦
Partner – Order 30 R3
◦
Company- Order 29 R 2
◦
Rule 30
◦
Written Statement Order VIII
◦
It is a term of specific connotation ordinarily
signifying a reply to the plaint filed by the plaintiff.
◦
It must be filed within 30 days from the date of
service of summons. However, the court can extend the date upto 90 days.
◦
This provision is directory and permissive and
not mandatory and imperative.
◦
The process of justice may be speeded up and
hurried but the fairness which is basic element of justice cannot be buried.
◦
(Kailash v. Nankhu AIR 2005 SC 2441)
◦
Written Statement Order VIII
◦
The timeline can be extended only in
exceptionally hard cases. While extending time, it has to be borne in mind that
legislature has fixed the upper time limit of 90 days. This discretion of the
court to extend the time shall not be so frequently and routinely excercised so
as to nullify the period fixed by Order VIII Rule 1.
◦
(Salem Advocates Asso. V. Union of India AIR
2005 SC 3353)
Particulars.
◦
All the rules of pleading is applicable to
Written Statement
◦
Before drafting the Written Statement, it is
absolutely necessary to examine the Plaint carefully, the documents relied on
by the defendant and as the position of law.
◦
In Written Statement, defendant can take number
of defences, alternative or inconsistent, provided they are maintainable in
law.
Rules.
- New
facts such as maintainability, or transaction is void or voidable in law,
fraud, limitation, payment, performance or illegality etc; must be pleaded
specifically.(Rule 2)
- The
effect of this rule is to require the defendant to inform the plaintiff
what he is trying to prove in court.
- If
any pleading is omitted, there will be a presumption that the party waived
that right by not relying on that point/fact.
- 2.
The denial must be specific on each allegation of fact which he does not
admit, except damages. (Rule 3)
- 3.
The denial should not be vague and evasive. (Rule 4)
4. Every allegation in the plaint, if not denied
specifically shall be taken to be admitted. (Rule 5)
5. Where the defendant relies upon several distinct grounds
of defence founded upon distinct and separate facts, they should be stated
separately and distinctly. (Rule 7)
6. Any new ground of defence which arise after submission of
the Written Statement may be raised later.(Rules 8&9)
7. Generally, no pleading after the Written Statement is
filed other than by way of defence to a set off or Counter Claim. But court is
empowered to allow subsequent filing of pleading for the ends of justice. (Rule
9& Sec. 151)
Ananya files a suit against Animay and Sudarshan for
specific relief. Animay and Sudarshan
initially take time to file written statement and fail to file it for a
certain period of time. Finally, court gives a last chance for them to file.
However, Animay and Sudarshan fail to
file written statement. Court thereafter passes a judgment and decrees the suit
in favour of Ananya accordance to Order 8 Rule 10. Animay and Sudarshan appeal against the order stating that the
suit should not be decreed on conduct of defendants but on law. Is that right ?
If the defendant fails to present his Written Statement,
within the time, the can pronounce the judgment. (Rule10).
However, the court cannot proceed to pass judgment blindly
merely because no written statement filed.(Balraj Taneja v. Sunil Madan)
◦
Set- off (Order VIII Rule 6)
◦
Set-
off means a claim set up against another. It is a cross claim which partly
offsets the original claim.
◦
Where
there are mutual debts between the plaintiff and the defendant , one debt maybe
settled against the other.
◦
It
is a plea in defense available to the defendant.
◦
Set-off
◦
When
a defendant claims set -off, defendant is put in position of a plaintiff.
◦
There
are two suits, one by plaintiff against the defendant and another defendant
against the plaintiff and both are tried together.
◦
A
separate suit number is not given to set- off.
◦
The
doctrine of set-off maybe defined as the extinction of debts of which two
persons are reciprocally debtors to one another by the credits of which they
are reciprocally creditors to one another.
Set- off
◦
Legal set-off
Conditions
1. Suit must be for the recovery of money
2. The sum of money must be ascertained
3. Such sum must be legally recoverable
4. It must be recoverable by the defendant
5. it must be recoverable from plaintiff
6. it must not exceed the pecuniary jurisdiction of the
court
◦
Legal set-off and Equitable set-off
◦
Legal Set Off
◦
1. It must be for an ascertained sum
◦
2. It can be claimed as a right and court is
bound to entertain and adjudicate it.
◦
3. It need not be in the same transaction.
◦
4. it must have complied with the conditions and
must be legally recoverable.
◦
5. It requires Court Fee.
◦
Equitable Set Off
◦
1. May be allowed even for an unascertained sum
◦
2. It cannot be claimed as a right and court has
discretion to refuse to adjudicate.
◦
3. It arises from the same transaction
◦
4. Even time barred debt can be claimed when
there is fiduciary relationship exists between the parties.
◦
5. No Court fee is required.
◦
Illustration
◦
Hamsini
files a suit against Aakriti for money recovery. Aakriti raises a set-off in
this suit. After a couple of appearances
and hearing, Hamsini neglects the case and fails to appear before the
court. Can the court, after hearing Aakriti pass a decree in her favour?
◦
Illustration
◦
Ritika
files a suit against Varshini for money recovery. Varshini raises a set-off in
this suit. After a couple of appearances
and hearing, Ritika neglects the case and fails to appear before the
court. Can the court, after hearing Varshini pass a decree in favour of her set-off?
◦
Illustration
◦
Nikhil
files a suit against Anirudh for money recovery. Anirudh raises a set-off in
this suit. After a couple of appearances , when the case is posted for evidence,
Nikhil neglects the case and fails to appear before the court. Can the court,
after hearing Anirudh pass a decree in favour his favour for set-off?
◦
Counter Claim Rules 6A-6G
◦
It is a claim made by the defendant in a suit
against the Plaintiff.
◦
It is a claim independent of and separable from
the Plaintiff’s claim which can be enforced by cross- action.
◦
Cause of action for counter claim arises on the
date of the written statement, while in set-off it arises from the date of
plaint.
◦
Objective – To avoid multiplicity of suits
◦
It is claimed in Written Statement
◦
The effect is a cross suit and court has to
pronounce the judgment
◦
The Counter Claim Part must be treated as Plaint
◦
There will be Written Statement filed by
Plaintiff to the Counter Claim.
◦
Counter Claim has to be decided on merit.
Modes of setting up counter claim
- Written
statement under Order 8 , Rule 1
- By
amending written statement with leave of the court
- Subsequent
pleading under order 8 Rule 9
Can a counter claim be filed against a co- defendant ?
◦
Faiz , owns a beachouse in Goa. Since, he lives
in Bangalore, the house is mostly locked. Aditya, who has recently moved to
Goa, realises that nobody lives in this beachouse and gradually starts to enter
the property. Faiz who is informed of such entry by his friend in Goa , files a
suit for injunction. However, Aditya
files a counter claim and states that Faiz in fact is not the owner of the
property and seeks possession. Can Aditya ask for a new relief in counter claim
?
◦
Similarities between Set-Off and Counter Claim
1) None should exceed the pecuniary limits of the
jurisdiction of the court
2)Both are pleaded in the written statement, if the law
governing the court permits such plea being raised by the defendant in the
written statement
3) The plaintiff is expected to file a written statement in
answer to a claim for set-off or to a counter claim
4) Even if permitted
to be raised, the court may in appropriate cases direct a set-off or counter
claim being tried separately
5) A defendant cannot be compelled to plead a set off nor a
counter claim; he may as well maintain an independent action for enforcing the
claim forming subject matter of set-off or counter claim
6) Both are liable to payment of court fee under Schedule 1
Article 1 of Court Fees Act 1870
◦
Rohan , owns a beachouse in Goa. Since, he lives
in Bangalore, the house is mostly locked. Aditya, who has recently moved to
Goa, realises that nobody lives in this beachouse and gradually starts to enter
the property. Rohan who is informed of such entry by his friend in Goa , files
a suit for injunction. However, Aditya
files a counter claim and states that Rohan in fact is not the owner of the
property and seeks possession. Can Aditya ask for a new relief in counter claim
?
◦
Sunny , owns a beach house in Goa. Since, he
lives in Bangalore, the house is mostly locked. Chandramani, who has recently
moved to Goa, realises that nobody lives in this beach house and gradually
starts to enter the property. Sunny who is informed of such entry by his friend
in Goa , files a suit for injunction. However, Chandramani, files a counter
claim and states that Sunny in fact is not the owner of the property and seeks
for possession himself. Can Chandramani, ask for a new relief in counter claim
?
◦
Set-off and Counter claim
◦
Set Off
◦
1. It is a statutory defence to the Plaintiff’s
action.
◦
2. It is for an ascertained sum or it must arise
out of the same transaction
◦
3. It is a ground of defence
◦
4. The amount must be recoverable at the date of
the suit
◦
5. The amount must be below or upto the claim of
the Plaintiff.
◦
Counter Claim
◦
1. It is
a Cross Action
◦
2. It need not arise out of the same transaction
◦
3. It is lawful claim to enforce a right or
liability
◦
4. The amount claimed must be recoverable at the
date of Written Statement
◦
5. It can exceed the Plaintiff’s Claim.
◦
Rejoinder
◦
A Plaintiff cannot be allowed to introduce new
pleas by way of filing a rejoinder.
◦
In Rejoinder the Plaintiff can be permitted to
explain the additional facts which have been incorporated in the written
statement
◦
The Plaintiff cannot be permitted to raise
inconsistent pleas so as to alter his original cause of action
◦
Application U/OVIII Rule 9 cannot be treated as
on U/Order Vi Rule 17 as both contextually different.
◦
Illustration
◦
"X" institutes a suit for recovery of
Rs. 10 lakhs against "Y". "Y" claims that "X" has
not repaid a loan of Rs. 7 lakhs borrowed from "Y" last year. Advise
"Y" to draft written statement.
◦
First Hearing and Issues. Order XIV
◦
What is First Hearing?
◦
The date of first hearing of a suit under the
Code is ordinarily understood to be the date on which the court proposes to
apply its mind to the contentions in the pleadings of the parties to the suit
and in the documents filed by them for the purpose of framing the issues to be
decided in the suit.
◦
To simplify, first hearing is that date fixed for appearance of parties, after filing
written statement but before filing issues.
◦
Siraj Ahmad Siddiqui vs. Prem Nath Kapoor AIR
1993 SC 2525
◦
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 the
issues on which the right decision of the case appears to depend.
◦
Nothing in this Rule requires the Court to frame
and record issues where the Defendant at the first hearing of the suit makes no
defence.
◦
Rishabh Chand Jain and Ors. vs. Ginesh Chandra
Jain
◦
Ex-
parte
• What is ex-parte hearing?
• If the Defendant does not appear and
it is proved that the summons was duly served upon him/her, the court may
proceed ex-parte.
• Can the Defendant be placed ex-parte
after filing the written statement ?
• Yes
• Till what stage can the defendant be
placed ex parte?
• Defendant cannot be placed ex-parte
when the matter is posted for judgement.
Mamita
Thati vs. Nepura Pradhan AIR 2014 Ori 79
◦
Ex-parte
decree and Remedies
◦
An
ex-parte decree is when a decree is passed against the defendant in his
absence.
◦
The
defendant has the following remedies when an ex-parte decree is passed
- He may appeal the ex-parte
decree under section 96;
- He may apply for a review of
the judgement under O.47, R1;
- He may apply under O.9 R.13 to
set aside the ex-parte decree, provided that the application is made
within 30 days of the order being passed;
- He may bring a suit on the
grounds of fraud ( A regular suit does not lie against an ex-parte decree)
◦
Grounds
on which ex-parte decree maybe set aside
◦
‘Sufficient
cause’ has not been defined by the Code.
◦
It
must be liberally construed. Certain examples:
Ø
Summons
in a different language
Ø
Medical
reasons
Ø
Fraud
committed by the counsel
◦
Ex-parte
◦
Can
the civil court under section 151( Inherent powers) set aside an ex-parte
decree?
◦
If
no case has been made out under O.9, R.3, an ex-parte decree cannot be set
aside under section 151 of the CPC.
Arjun Singh
vs. Mohindra Kumar AIR 1964 SC 993
◦
Does
this rule apply to execution proceedings ?
◦
No.
◦
An
ex-parte decree has been passed against
dated Karan 19.01.2019.. He makes an application to set aside the decree
, the same is allowed, and the suit is restored. However, on the next date of
hearing, Karan does not appear. Can the
court now pass an ex-parte order against Karan again and can he file a petition
to restore the suit ?
◦
Issues are of three kinds:
◦
i. Issues of Fact
◦
Ii. Issues of Law
◦
Iii. Issues of Mixed questions of fact and law.
◦
The only point of requiring pleadings and issues
is to ascertain the real dispute between the parties, to narrow the area of
conflict and to see just where the two sides differ.
◦
J.K. Iron and Steel Co. Ltd., Kanpur vs. The
Iron and Steel Mazdoor Union, Kanpur (AIR 1956 SC 231)
◦
It is the issues that guide the parties in the
matter of adducing Evidence
◦
It is trite that the obligation and duty to
frame Issues is cast solely on the Court which may, nevertheless, elicit
suggestions from the litigating adversaries before it. Issues settled by the
Court under Order XIV Code of Civil Procedure constitute the crystallization of
the conflict or the distillation of the dispute between the parties to the lis,
and are in the nature of disputed questions of fact and/or of law. While discharging
this primary function, the Court is expected to peruse the pleadings of the
parties in order to extract their essence, analyse the allegations of the
parties and the contents of the documents produced by them, and, thereafter,
proceed to frame the Issues.
◦
Gangai Vinayagar Temple vs. Meenakshi Ammal
(2015) 3 SCC 624)
◦
The frame of the issue shows that the learned
judge at this stage made no effort to ascertain or apprehend the nature of the
plea taken in the written statement. He seems to have acted more as an
automaton than as a judge in the discharge of his responsible duties. Before
framing an issue like this it was his duty to examine the parties and to find
out the precise nature of the plea involved within these facts.
◦
Hiralal and Ors. vs. Badkulal and Ors. (1953 SCR
758)
◦
Issues can be amended at any stage of the
proceeding. Rule 5
◦
What is a preliminary issue?
◦
Preliminary issue is an issue that purely
involves a question of law and it must be law must be decided first. An issue
can be treated as a preliminary issue if the suit could be disposed on that
issue alone.
◦
Court shall not frame an issue which is not
pleaded.
◦
All issues must be answered in the judgment.
◦
Appellate court also has power to frame issues.
◦
Disposal of Suit Order XV
◦
Order XV Rule 1 lays down that, 'where at the
first hearing of a suit it appears that the parties are not at issue on any
question of law or of fact, the Court may at once pronounce the judgment. 6&7
◦
Heeralal vs. Kalyan Mal and Ors. (1998 SC 618)
◦
1. where the parties are not at issue on any
question of law and fact. R1
◦
2. where there are two or more defendants and
one of them admits the claim of the plaintiff, the court may pronounce judgment
against such defendant and suit will proceed against the contesting defendant/s.
R2
◦
3. where the summons have been issued for the
final disposal of the suit and either part fails without sufficient ground to
produce the evidence on which he relies. R 4
◦
4. where a party or his pleader makes certain
admissions of facts which are sufficient to dispose of the case. Order XII R6
◦
5. where after the issues have been framed the
court is satisfied that no further argument or evidence is required. R3
◦
Interrogatories Order XI Rule 1-11, 20-23
◦
The purpose is to discover facts and documents
◦
The object is prove/support one’s case or
impeach the credibility of the opponent.
◦
The form of the interrogatories should be in
Form nos. 1 and 2 of Appendix C.
◦
The answer must be in Form no. 3 of Appendix C
as affidavit.
◦
Rule 6 allows to object to answer such
interrogatory on the basis of Scandalous, irrelevant, malafide,
immaterial, privileged etc
◦
It must be in writing with the leave of the
court. (S 30, Order XI R1).
◦
The particulars of the interrogatories must be
submitted to the court to take a decision within 7 days. (R2)
◦
It can be administered by the opposite parties
or among the parties. (R1)
◦
No party can deliver more than one set without
the order of the court. (R1)
◦
If any of the party is a Corporations, or a body
of persons, interrogatories may be administered to an officer or member of such
Corporation or body. (R 5)
◦
if any of
the party is under any disability, interrogatories may be delivered to next
friend or guardian. (R23)
◦
Interrogatories and an affidavit in answer to
interrogatories should be delivered in the prescribed form. (R4,8,9 &10)
◦
Interrogatories shall be answered by affidavit
within 10 days from the date of service of interrogatories or as court orders.
R8
◦
Interrogatories must relate to the matter in
question in the suit. R 6&7
◦
Interrogatories should be as to the question of
fact and shall not be as to conclusiveness of law, inferences of facts or
construction of documents.
◦
Interrogatories can be objected on the ground of
vexatious, scandalous, irrelevant, malafide etc. R 6&7
◦
It can be used in evidence. R 22
◦
If the party fail to comply with the order to
answer interrogatories his suit can be dismissed or defence can be struck down.
R21
◦
Interrogatories as to any confidential and
privileged communication or documents will not be allowed. Ss. 123-129 of
Indian Evidence Act
◦
Interrogatories which are in the nature of cross
examination will not be allowed. R1.
◦
Privileged Documents
◦
Sections 123-129 of Indian Evidence Act, 1872.
◦
Section 123. No one shall be permitted to give
any evidence derived from unpublished official records relating to any
affairs of State, except with the permission of the officer at the head
of the department concerned, who shall give or withhold such permission as he
thinks fit.
◦
1. the document is an unpublished
official record relating to any affairs of the State
◦
2. that the officer as the head of the
department concerned may give or withhold the permission for giving the
evidence.
◦
Records relating to affairs of state:
◦
a. documents of state whose production would
endanger the public interest.
◦
b. documents pertaining to public security,
defence and foreign relations.
◦
c. unpublished documents relating to trading
commercial or contractual activities of the State. (It is a question of fact in
each case.)
◦
Sec 124. Official communications - No
public officer shall be compelled to disclose communications made to him in
official confidence, when he considers that the public interests would
suffer by the disclosure.
◦
i. It applies to all communications made in
official confidence, whether such communications are in writing or not, and
whether the document relates to any affair of state or not.
◦
Ii. It gives discretion to the public officer to
disclose the communication made in official confidence to whom it was made.
◦
Public officer is as defined in Section 2(17) of
CPC.
◦
It is made to protect the public interest.
◦
Sec 125- Information as to commission of
offences - No Magistrate or Police-officer shall be compelled to say whence
he got any information as to the commission of any offence, and no
Revenue-Officer shall be compelled to say whence he got any information as to
the commission of any offence against the public revenue.
◦
Explanation - "Revenue-Officer" in
this section means any officer employed in or about the business of any branch
of the public revenue.
◦
It is enacted in interest of detection of crime.
◦
It rests on public policy
◦
Privilege may be waived.
◦
126. Professional communications - No
barrister, attorney, pleader or vakil, shall at any time be permitted,
unless with his client's express consent to disclose any communication made
to him in the course and for the purpose of his employment as such barrister,
pleader, attorney or vakil, by or on behalf of his client, or to state the
contents or condition of any document with which he has become acquainted in
the course and for the purpose of his professional employment or to disclose
any advice given by him to his client in the course and for the purpose of such
employment. Provided that nothing in this section shall protect from
disclosure -
◦
1. Any communication made in furtherance
of any illegal purpose,
◦
2. Any fact observed by any barrister, pleader,
attorney or vakil, in the course of his employment as such showing that any
crime or fraud has been committed since the commencement of his employment. It
is immaterial whether the attention of such barrister, pleader, attorney or
vakil was or was not directed to such fact by or on behalf of his client.
◦
Explanation: The obligation stated in this
section continues after the employment has ceased.
◦
Illustration
◦
A, a client, says to B, an attorney - "I
have committed forgery and I wish you to defend me.“
◦
Illustration
◦
A, a client, says to B, and attorney -
"I wish to obtain possession of property by the use of forged deed on
which I request you to sue."
◦
Sec127. Section 126 to apply to interpreters
etc. - The provisions of Section 126 apply to interpreters, and the clerks
or servants of barristers, pleaders, attorneys and vakils.
◦
129. Confidential communication with Legal
Advisers - No one shall be compelled to disclose to the Court any
confidential communication which has taken place between him and his legal professional
adviser, unless he offers himself as a witness in which case he may be
compelled to disclose any such communication as may appear to the Court
necessary to be known in order to explain any evidence which he has given, but
no others.
◦
It is applicable to legal advisor, his
interpreter, clerk and servant.
◦
It continuous even after the termination of
employment.
◦
Illustration
◦
‘A’ filed a suit against Union of India and
asked to produce certain documents in connection with the dispute. The Union of
India, in reply stated that these documents are privileged documents and hence
cannot produce. Advice your client in this regard.
◦
Affidavit Order XIX
◦
No definition
◦
It is sworn statement in writing made under oath
or on affirmation before an authorized officer or magistrate.
◦
“Affidavit" shall include affirmation
and declaration in the case of persons by law allowed to affirm or declare
instead of swearing. (S. 3(3) of GC
Act, 1897)
◦
The language must be in 1st person
◦
The averment in an affidavit is not of
deponent's personal information, the source of information must be stated.
◦
The deponent should swear only what he knows to
be true.
◦
It must be verified.
◦
Filing false affidavit amounts to perjury
punishable u/s 191 of Indian Penal Code.
◦
Should all interim applications be filed along
with an affidavit ?
◦
See Rule 18 , Civil Rules of Practise Karnataka.
• Temporary
injunction;
• Attachment;
• Arrest;
• Appointment
of Guardian;
• Appointment
of Receiver;
• Amendment
of Pleadings
◦
Interim Orders
◦
It is to protect the rights of the parties in
the interval between the commencement 0f the proceedings and final disposal of
the case.
◦
Interim Orders
◦
X, files an interlocutory application for
amendment of Plaint. The application is rejected. X wants to challenge this
order, when the suit is pending in trial court. X wants to file a Miscellaneous
First Appeal. Advise X.
◦
Appointment of Advocate Commissioner Sections
75-78 & Order XXVI
◦
1. To examine witnesses R 1-8
◦
2. To make local investigation R9-10
◦
3. To adjust accounts R 11-12
◦
4. To make Partition R 13-14
◦
5. To hold investigation R 10A
◦
6. To perform Ministerial act Rule 10B
◦
7. To conduct Sale R 10C
◦
Powers of Commissioners R 16-18
◦
i. Summon and procure the attendance of parties
and their witnesses and examine them. R 16-17
◦
ii. Call for and examine documents R16
◦
iii. Enter into any land or building mentioned
in the order R 16
◦
iv. Proceed exparte if the parties do not appear
before him in spite of the order of the court R18.
◦
Illustration
◦
In a suit for setting aside a voidable contract
of sale of immovable property filed by P against Q, one of P’s key witnesses is
an 80-year old bedridden woman. Advice ‘P’ in this regard with law.
◦
Illustration
◦
A preliminary decree was passed in a suit for
partition between three brothers, Ram, Shyam and Dhyan. Now, an application for
final decree procedure is pending, mainly to decide the demarcation of the
property and separate possession. The schedule property to be partitioned is
‘L’ shaped in nature and the brothers cannot decide what portion of the
property has to be allotted to each other. What is the remedy available to
them? Can they file an application for appointment of Commissioner? Advise
them.
◦
Arrest before judgment Order 38 Rules 1-4
◦
Elements
◦
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 part thereof or
◦
b. that the defendant is about to leave India
whereby obstructed or delayed in the execution of any decree that may be
passed.
◦
Arrest before judgment Order 38 Rules 1-4
◦
It is the discretion of the court
◦
Conditions
◦
1. The Plaintiff’s suit must be bonafide and
his cause of action must be prima facie unimpeachable subject to his
proving the allegations in the plaint and
◦
2. The court must have reason to believe on
adequate materials that unless this extraordinary power is exercised there is a
real danger that the defendant will remove himself or his property from
the ambit of the powers of the court.
◦
Security Rule 2-4
◦
Attachment before Judgment Order XXXVIII Rules
5-13
◦
Grounds:
◦
i. the defendant is trying to dispose of his
property whole or part
◦
ii. He is about to remove the whole or part of
his property from the local limits of the jurisdiction of the court, the court
shall direct the defendant within a time limit to be fixed by it, either to
furnish security of such sum as may be specified in the order.
◦
What is the effect of attachment before judgment?
◦
Attachment before judgment is levied where the
court on an application of the plaintiff is satisfied that the defendant, with
intent to obstruct or delay the execution of any decree that may be passed
against him
◦
(a) is about to dispose of the whole or any part
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 sole object behind the order levying
attachment before judgment is to give an assurance to the plaintiff that his
decree if made would be satisfied. It is a sort of a guarantee against decree
becoming infructuous for want of property available from which the plaintiff
can satisfy the decree.
◦
Sardar Govindrao Mahadik and Ors. vs. Devi Sahai
and Ors. AIR 1982 SC989
The guiding principles
◦
(1) That an order under Order 38, Rules 5 &
6, can only be issued, if circumstances exist as are stated therein.
◦
(2) Whether such circumstances exist is a
question of fact that must be proved to the satisfaction of the Court.
◦
(3) That the Court would not be justified in
issuing an order for attachment before judgment, or for security, merely
because it thinks that no harm would be done thereby or that the defendants
would not be prejudiced.
◦
(4) That
the affidavits in support of the contentions of the applicant, must not be
vague, & must be properly verified. Where it is affirmed true to knowledge
or information or belief, it must be stated as to which portion is true to
knowledge, the source of information should be disclosed, & the grounds for
belief should be stated.
◦
(5) That a mere allegation that the defendant
was selling off & his properties is not sufficient. Particulars must be
stated.
◦
(6) There is no rule that transactions before
suit cannot be taken into consideration, but the object of attachment before
judgment must be to prevent future transfer or alienation.
◦
(7) Where
only a small portion of the property belonging to the defendant is being
disposed of, no inference can be drawn in the absence of other circumstances
that the alienation is necessarily to defraud or delay the plaintiff's claim.
◦
(8) That the mere fact of transfer is not
enough, since nobody can be prevented from dealing with his properties simply
because a suit has been filed: There must be additional circumstances to show
that the transfer is with an intention to delay or defeat the plaintiff's
claim. It is open to the Court to look to the conduct of the parties immediately
before suit, & to examine the surrounding circumstances, & to draw an
inference as to whether the defendant is about to dispose of the property,
& if so, with what intention. The Court is entitled to consider the nature
of the claim & the defence put forward.
◦
(9) The fact that the defendant is in insolvent
circumstances or in acute financial embarrassment, is a relevant circumstance,
but not by itself sufficient.
◦
(10) That in the case of running businesses, the
strictest caution is necessary & the mere fact that a business has been
closed, or that its turnover has diminished, is not enough.
◦
(11)
Where however the defendant starts disposing of his properties one by one,
immediately upon getting a notice of the plaintiff's claim, &/or where he
had transferred the major portion of his properties shortly prior to the
institution of the suit & was in an embarrassed financial condition, these
were grounds from which an inference could be legitimately drawn that the
object of the deft. was to delay and defeat the pltfs'. claim.
◦
(12) Mere removal of properties outside
jurisdiction, is not enough, but where the deft. with notice of the pltfs'.
claim, suddenly begins removal of his properties outside the jurisdiction of
the appropriate Court, & without any other satisfactory reason, an adverse
inference may be drawn against the deft. Where the removal is to a foreign
country, the inference is greatly strengthened.
◦
(13) The deft. in a suit is under no liability
to take any special care in administering his affairs, simply because there is
a claim pending against him. Mere neglect, or suffering execution by other
creditors, is not a sufficient reason for an order under Order 38 of the Code.
◦
(14) The sale of properties at a gross
undervalue, or benami transfers, are always good indications of an intention to
defeat the pltf's. claim. The Court must however be very cautious about the
evidence on these points & not rely on vague allegations.
◦
Premraj Mundra
vs. Md. Maneck Gazi and Ors. AIR
1951 Cal 156
◦
Mode of Attachment - Rule 7
◦
Withdrawal of Attachment – Rule 9
◦
Rights of 3rd Party – Rule 10
◦
Exception - Rule 12, Order XXI Rule 44
◦
Abatement Order XXII Rules 1-6, 9 &10A
◦
The question is whether the right to sue
survive?
◦
If the answer is negative it abates.
◦
If answer is affirmative, it will not.
◦
Right to sue survives if the cause of action
survives or continues
◦
Limitation Act Art.120, 90 days
◦
After final hearing – No abatement
◦
Its duty of the advocate to communicate to the
court about the death of a party.
◦
Rule 1 No abatement by party’s death, if right
to sue survives
◦
Rule 2 Procedure where one of several plaintiffs
/defendants dies and the right to sue survives
◦
Rule 3 Procedure in case of death of several
plaintiffs or of sole plaintiff
◦
Rule 4 Defendant
◦
Rule 4A When there is no LRs
◦
Rule 5 Determination of LRs
◦
Rule 9 Effect of abatement – No fresh suit.
◦
Rule 7 Suit not abated by marriage of female
party
◦
Rule 8 Insolvency bars the suit(plaintiff)
◦
Rule 10 Assignee.
◦
Susan files a suit against Bharath, a famous
painter, for specific performance of a contract to paint Susan’s portrait.
Bharath dies pendente lite. Advise Susan about impleading of the LRs of
Bharath.
◦
SUITS BY OR AGAINST THE GOVERNMENT
v It is provided under Sections 79 to 82
and Order 27 of the Code of Civil Procedure 1908.
v It deals with the procedures and not the
rights and liabilities which can be enforced by or against the Government.
v In a suit against or by the
Government, the authority to be named as plaintiff or defendant, as the case
may be, shall be:
a) In case of a suit against the
Central Government to the Secretary (except to the railway)
b) In case of suit against the Central
Government where it relates to railway, General Manager of railway
c) In case of suit against the
Government of Jammu and Kashmir, the Chief Secretary or any other authorized
officer of the Government
d) In case of suit against any other
State Government, a Secretary to that Government or the Collector of the
district.
e) In the case of Public Officer, such Public
Officer.
◦
The object of the section is the advancement of
justice and securing of public good by avoidance of unnecessary litigation.
◦
Bihari Choudhary v. State of Bihar AIR 1984 SC
1043.
◦
The
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, they have an opportunity to scrutinize the claim in respect of which
the suit is proposed to be filed and if it be found to be a just claim, to take
immediate action and thereby avoid unnecessary litigation and save public time
and money by settling the claim without driving the person who has issued the
notice, to institute the suit involving considerable expenditure and delay.
◦
Law Commission Reports 14 and 27 recommended to
delete this provision since it is not effective.
◦
However, The Joint Parliament Committee opposed
and still it is retained.
v No suit instituted under this
section shall be dismissed merely by the reason of any error or defect in the
notice provided under sub section (1), if in the notice:
a) If the name, description and the
residence of the plaintiff had been so given as to enable the appropriate
authority or the public officer to identify the person serving the notice and
such notice has been delivered or left at the office of the appropriate
authority specified in sub section (1) (Identification of the Plaintiff)
b) The cause of action and
c) the relief claimed by the plaintiff
had been substantially indicated.
◦
SECTION 81: Exemption from arrest and the
personal appearance
◦
If
a suit is instituted against the Government or public officer for the acts
purporting to be committed under his official capacity, then the defendant nor
his property is liable to be arrested or attached, respectively, otherwise than
in execution of a decree and where the Court is satisfied that the defendant
cannot absent himself from his duty without detriment to public service, he
shall be exempted from appearing in person.
◦
No interim relief is granted before hearing the
Govt. Pleader.
◦
Execution Petition can be filed only after 3
months from the date of decree.
◦
Wilson, a contractor enters into a construction
contract with the PWD department, Karnataka, to construct their new building in
Bangalore. A dispute arises leading to termination of the contract unilaterally
by the government on 10th July 2014. Wilson sends a statutory notice
on 15th June 2017 to the Government of Karnataka seeking
compensation for premature termination of the contract. On refusal of payment,
‘W’ files a suit on 16th August 2017. The government claims that the
suit is barred by limitation. Advise Wilson.
◦
Suits by or against Minors and Lunatics Order
XXXII
◦
A minor is a person who has not attained the age
of 18 years.
◦
The object is to protect and safeguard the
interests of minors and lunatics.
◦
Every minor of whose person or property a guardian has been or shall be
appointed by any Court of Justice, and every minor under the jurisdiction of
any Court of Wards
[every minor of whose person or property, or both, a guardian, other than a
guardian for a suit within the meaning of Chapter XXXI of the Code of Civil
Procedure {See now the Code of Civil Procedure, 1908 (5 of 1908), (4 of
1882), Sch.I, Order XXXII}, has been or shall be
appointed or declared by any Court of Justice before the minor has
attained the age of eighteen years, and every minor of whose property the
superintendence has been or shall be assumed by any Court of Wards before the
minor has attained that age] shall, notwithstanding anything contained in the
Indian Succession Act {See now the Indian Succession Act, 1925 (39 of 1925)}
or in any other enactment, be deemed to have attained his majority when
he shall have completed his age of twenty-one years and not before.
◦
Rule 4: Qualification to be appointed as
guardian
◦
Attained majority
◦
Sound mind
◦
His interest must not be adverse to the interest
of the minor
◦
Shall not be opposite party in the suit
◦
Should give free consent in writing.
◦
Powers and Duties – Rules 5 - 7
◦
1. compromise of the suit
◦
With the leave of the court
◦
File compromise agreement for the perusal of the
court
◦
Affidavit of the guardian
◦
Certificate of the Pleader stating that it is
the best for the interest of the minor.
◦
Compromise/agreement without the leave of the
court is voidable at the instance of minor.
◦
Powers and Duties – Rules 5 - 7
◦
2. Guardian shall not receive any money or other
movable property on behalf of a minor
◦
Shall not enter into any agreement or compromise
unless such leave is expressly recorded in the proceedings
◦
Application for leave must be accompanied by an
affidavit of the Guardian/nextfriend and a certificate from the pleader stating
his opinion.
◦
Guardian cannot retire until a new fit person
substitute him.
◦
Removal Rule 9
◦
If the court is satisfied that
◦
1. His interest is adverse to that of the minor
◦
2. He is connected with the opposite party and
is unlikely that the interest of the minor will be protected
◦
3. He does not discharge his duty
◦
4. He ceases to live in India
◦
5. Any other sufficiently justifiable cause.
◦
If the guardian is removed or died, the suit
will be stayed until another guardian is appointed.
◦
A decree passed against a minor without
appointing guardian is null and void.
◦
Attaining Majority Rules 12 - 14
◦
1. He may proceed with the suit after applying
for the discharge of the guardian and for leave to proceed in his own name.
◦
2. He may abandon the suit and apply for
dismissal on paying the cost to the defendant.
◦
3. He may apply for dismissal on the ground that
it was unreasonable or improper.
◦
4. When he is a co-Plaintiff, he may repudiate
the suit and may apply to have his name struck off.
◦
Suits by Indigent Person Order XXXIII
◦
No court fee at the 1st instance
◦
The purpose of Order XXXIII are:
◦
i. To protect bonafide claims of an indigent
person
◦
ii. To safeguard the interest of revenue and
◦
iii. To protect defendant from harassment
◦
Suits by Indigent Person Order XXXIII
◦
Rule 1. Indigent Person
◦
1. If he has not possessed of sufficient means
to enable him to pay the Court fee for the Plaint
◦
2. Where no such fee is prescribed when he is
not entitled to property worth Rs. 1000/-
◦
Contents
◦
1. The particulars required in regard to plaint
◦
2. A schedule of movable property belonging to
the applicant with the estimated value,
◦
3. Signature and verification as per order VI
Rule 14&15
◦
4. Should be submitted in person unless
exempted.
◦
Suits by Indigent Person Order XXXIII
◦
Rejection of Application. Rule 5
◦
1. Where the application is not in the
prescribed format.
◦
2. Where the applicant is not an indigent person
◦
3. Where the applicant has disposed of his
property fraudulently within 2 months before the presentation of the
application
◦
4. Where there is no cause of action
◦
5. Where the applicant has entered into an
agreement with reference to the subject matter of the suit under which another person has obtained an interest
◦
6. Where the suit appears to be barred by law
and
◦
7. Where any other person has entered into an
agreement with the applicant to finance costs of the litigation.
◦
Suits by Indigent Person Order XXXIII
◦
Inquiry Rule 1A
◦
Into the means of the applicant by Chief
Ministerial Officer.
◦
Report
◦
Examination as to the claim and property
◦
Issue notice to GP and opposite party/ies
◦
Once it is granted, it will be considered as
plaint. R8-9
◦
If no lawyer, free legal aid should be provided
◦
If rejected R15-15A
◦
Extension of time to pay CF
◦
Suits by Indigent Person Order XXXIII
◦
Revocation Rule 9
◦
1. Where he is guilty of vexatious or improper conduct
in the course of the suit
◦
2. Where his means are such that he ought not to
continue to sue as an IP
◦
3. Where he has entered into an agreement under
which another person has obtained interest in the subject matter of the suit.
◦
4. If any property he obtained pendete lite,
that also should be taken into consideration.
◦
Illustration
◦
‘Naveen’ is allowed by the court, to file a suit
as indigent for compensation for breach of contract against ‘Aswin’. During
pendency of the suit, ‘Naveen’ obtains possession of property worth Rs. 10
lakhs from Naren. Advise ‘Aswin’ on the next step in the trial subsequent to this
development.
◦
Public Nuisance Sec. 91
◦
Municipal Council Ratlam v. Vardichan AIR1980 SC
1622
◦
“Public Nuisance is a challenge to social
justice component of Rule of Law”
◦
Who may sue:
◦
i. Advocate General
◦
ii. Two or more persons with the leave of the
court
◦
iii. Any private person who sustained
injury/damage
◦
Remedies:
◦
Punishment under IPC
◦
A suit for declaration, Injunction or
appropriate any other remedy
◦
Magistrate’s Power
◦
A suit for Damages.
◦
Interpleader Suit Sec. 88 Order 35
◦
‘Pushkar’ deposited certain goods with ‘Manoj’
for the purposes of storage. ‘Siri’ claims the goods from ‘Manoj’ alleging that
the goods were fraudulently obtained by ‘Pushkar’ from her. Advise ‘Manoj’.
◦
Adjournment-
Order XVII
◦
The
power to grant adjournment is not subject to definite rules and is up to the
courts discretion.
◦
It
is generally granted in such cases where the parties or their pleaders or
witnesses are sick or where there is non-service of summons or where reasonable
time is required for preparation of the case or due to withdrawal by the
pleader at the last instance, etc.
◦
Adjournment- Order XVII
◦
How many times can adjournment be asked in a
case ?
◦
Three
◦
Is this rule strictly followed?
◦
Salem Advocates Bar Association vs. Union of
India AIR 2005 SC 3353
◦
Lavanya
engages a pleader to argue her case in Bengaluru. The case is posted for
cross-examination. Just one day before the case, her counsel informs that she
cannot appear tomorrow since she is leaving to Gulbarga High Court for an
important case. Lavanya seeks adjournment the next day before the court and the
court rejects the application telling it is not sufficient cause. Lavanya contends that sufficient cause is for
party and not the pleader. Is she right?
Ram
Siromani Tripathi vs. State of U.P. ( 14.02.2019)
◦
The
Court, in a one-page order, has ruled that ‘counsel being out of station’ is
not a ground for granting an adjournment. The Court then went on to say that
since there was a finding that ‘being out of station’ is not a valid ground for
an adjournment “under no circumstances, an application for restoration shall be
entertained”. Since this is an order issued by a Bench of three judges, it
appears that the law on this issue stands settled for now.
◦
These
provisions make it clear that “sufficient cause” is the key requirement and
that “circumstances beyond the control” of the party is what
should drive the interpretation of that expression.
◦
“Sufficient
cause” appears in a number of other contexts (Such as Order 9 Rules 2,9 &
13 of the CPC and Section 5 of the Limitation Act) and it is settled law that
“sufficient cause” is to be understood as something for which the party cannot
be blamed.
◦
Thus,
if the party is able to demonstrate that he had engaged a
lawyer (who was expected to appear in court and argue the matter), and if the
lawyer does not turn up in court, he has, (for the least) an arguable case
of “sufficient cause” to have his appeal restored. The merits of that claim
will, of course, have to be determined as and when that application comes up
before the court.
◦
This
is why the second part of the order is problematic. As such, Order 9 Rule 9 (if
not the provision itself, the principles behind which applies to the case at
hand) enables a party to make an application to the court for
the order of dismissal to be set aside if he can show sufficient cause, and
absence of the lawyer that he had engaged can be sufficient
cause for the party to seek a restoration. The statute clearly
recognizes a right to make that application wherein he has the
opportunity to demonstrate whether or not there was sufficient
cause.
◦
Only
when such an application is presented before the court can the question
of sufficiency of cause cited be gone into. Till such time such an
application is presented, the question of what is sufficient is only an
academic one. By ruling that the application shall not even be entertained will
result in a valuable statutory right available to the party being taken away.
◦
The
Secretary Department of Horticulture .vs Raghu Raj on 17 October, 2008
◦
“…when a party engages an advocate who is expected to appear at the time
of hearing but fails to so appear, normally, a party should not suffer on
account of default or non-appearance of the advocate.”
◦
What
happens when the party/pleader fails to appear on the next date of hearing?
◦
It
shall proceed to decide the case as per Order IX.( Rule 2)
◦
Rule
3 further states that if the parties fail to produce evidence or bring
witnesses or fail to do with anything for the purpose of progress of the suit,
the court shall if the parties are present, decide the suit.
◦
Caveat
◦
Is
the word caveat defined in the code?
◦
Caveat
is a Latin term which means, 'let a person beware’.
◦
It
may simply be understood as a warning.
◦
Caveat
petition is a precautionary measure which is undertaken by persons usually when
they have a very strong apprehension that some case is going to be filed in the
Court regarding their interest in any manner.
◦
Caveator-
One who files the caveat
◦
Caveatee
– Against whom the caveat is filed.
◦
Section
148- A
Object
◦
To
safeguard the interest of the Caveator, who is ready to face the suit or
proceedings which is expected to be instituted by his opponent, affording an
opportunity to be heard, before an ex parte order is made.
◦
Section
148- A
◦
Who
may lodge a Caveat?
◦
Any
person claiming a right to appear before the Court,
·Where an application is expected to be made;
·Where an application has already been made;
·In a suit or proceeding instituted ;
·In a suit or proceeding which is about to be instituted;
May lodge a caveat thereof. It is substantive in a nature.
◦
Section
148- A
Duties of
the Caveator
◦
The
caveator shall serve a notice of the Caveat by registered post acknowledgement
due( RPAD)
·On the person by whom the application has been made, or
·On the person by whom the application is expected to be made
Duty of the
Court
◦
After
a Caveat has been lodged under Clause 1, if any application is filed in any
suit or proceeding, the Court shall serve a notice of the application on the
Caveator. This clause is mandatory in nature.
Duties of
the Applicant (Clause 4)
◦
It
is directive in nature .
◦
It
states that where a notice of any Caveat has been served on the applicant,
he/she shall furnish, at the expense of the Caveator,
·A copy of the application made by him.
·Copies of any paper or document which has been filed by him in support of his
application.
·Copies of any paper or document which may be filed by him in support of his
application.
◦
Illustration
◦
Infosys
has found that Company A, a competitor, has been using a deceptively similar
logo and has been confusing customers of Infosys. Thus, Infosys files a suit
for infringement and seeks an interim injunction. It is important to note that
Company A has anticipated this move by Infosys and has filed a caveat petition. Infosys refers the matter to counsel Anjana
and urges her to get an ex-parte injunction from court.
Is it possible to obtain an ex-parte injunction order
against Company A (before serving notice ) when the defendant has filed a
caveat petition?
◦
Illustration
◦
Bioline and Co., has manufactured an innovative
device in healthcare and scheduled a large-scale launch of the product. Before
the launch, Orange Healthcare Ltd., a competitor, releases a press statement
that Bioline and Co., has infringed their patent in the product but takes no
legal action. Now, Bioline and Co., is under an apprehension that Orange
Healthcare may institute a suit. Advise Bioline and Co., on most appropriate
legal action under CPC, before Orange Healthcare institutes a suit.
◦
TRANSFER
OF CASES
◦
Section
22-25
◦
Section
22
◦
Section
22 & 23 relate to cases where the plaintiff has the choice to institute the
suit in two or more courts
◦
An
order of transfer under section 22 is based on balance of convenience. However,
paramount consideration is given to interest of justice.
◦
It is limited to cases under section 16-20 of
the Code.
◦
Section
23
◦
Section
22 and 23 are complimentary to each other.
◦
Section
23 lays down the procedure of transfer for section 23
◦
Section
23 does not supersede section 25.
◦
Section
24 & 25
◦
Section
24 deals with general power of a High Court, or a district court to either
transfer or withdraw any suit.
◦
Section
25 deals with power of the Supreme Court to transfer any pending suit
◦
Under
both these sections, application to transfer can be made by any of the parties.
◦
Section
24 & 25
◦
Section
24 gives a general power of transfer of suits and is not limited to suits as
under section 22.
◦
The
burden lies on the applicant to make a strong case for transfer.
◦
Based
on precedents, following principles have been formed for transfer of a case
- Being the dominus litus, the
plaintiff has the power to file the case in any forum legally allowed.
This choice should not be simply interfered with. ( Indian Overseas Bank
vs. Chemical Construction & Co. 1979 SC 1514)
◦
Section
24
ii.
Transfer , may, however be ordered in the interest of justice.
iii. Thus,
a party seeking the transfer must have a reasonable apprehension that he/she
will not get a fait trial, or transfer is desirable for convenience of parties
and is needed to avoid conflicting decisions.
◦
Illustration
◦
Vandita
has filed a suit before Court Hall n. 30, City Civil Court, Bengaluru. Despite
filing the suit in 2016, the case has barely made any progress mainly because
the Judge in Court Hall no.30 was transferred for one year. Finally, in January
2019, a new Judge appears, but she realises that this judge is due for
retirement and the court hall will be vacant again. She notices that the cases
in Court Hall 31 moves at good pace. On her advise, her lawyer, who is new to
the profession, files an application to transfer her case from Court Hall no.30
to court Hall no.31 before Court Hall no.31. However, the application gets
dismissed. Vandita approaches a senior lawyer with the following questions.
◦
Under
what provision is transfer of case permissible?
◦
Can
a case be transferred at any stage?
◦
Can
any court transfer a case to another court based on an application filed by the
party?
◦
Illustration
◦
Anoushka
has filed a suit before Court Hall n. 30, City Civil Court, Bengaluru. Despite
filing the suit in 2016, the case has barely made any progress mainly because
the Judge in Court Hall no.30 was transferred for one year. Finally, in January
2019, a new Judge appears, but she realises that this judge is due for
retirement and the court hall will be vacant again. She notices that the cases
in Court Hall 31 moves at good pace. On her advise, her lawyer, who is new to
the profession, files an application to transfer her case from Court Hall no.30
to court Hall no.31 before Court Hall no.31. However, the application gets
dismissed. Anoushka approaches a senior lawyer with the following questions.
◦
Under
what provision is transfer of case permissible?
◦
Can
a case be transferred at any stage?
◦
Can
any court transfer a case to another court based on an application filed by the
party?
◦
Section
25
◦
Under
this section the Supreme Court has the power to transfer the case from one High
Court to another in the interest of justice and equity.
◦
The
cardinal principle here is that the ends of justice, demands a transfer. Mere
convenience of parties is not a reason for transfer. It must be demonstrated
that the trial in chosen forum will result in denial of justice.
◦
Illustration 2
◦
Nikhil filed a suit against Aditya in a trial court and later Nikhil becomes
aware that the trial court judge is related to Aditya, fears that he might get
a detrimental order . What remedy you
will advise him.
◦
Divya has filed a suit before Court Hall no. 6,
City Civil Court, Mumbai. Despite filing the suit in 2010, the case has barely
made any progress mainly because the Judge in Court Hall no.6 was transferred
for one year. Finally, in January 2019, a new Judge appears, but she realises
that this judge is due for retirement and the court hall will be vacant again.
She notices that the cases in Court Hall 7 moves at good pace. On her advice,
her lawyer, who is new to the profession, files an application to transfer her
case from Court Hall no.6 to court Hall no.7 before the City Civil Judge, Court
Hall no.6. However, the application gets dismissed. Divya approaches a senior
lawyer with the following questions.
◦
a. Under what provision is transfer of case
permissible?
◦
b. Can a case be transferred at any stage?
◦
c. Can any court transfer a case to another
court based on an application filed by the party?
◦
Advise her with relevant provision of law and
case laws.
◦
Injunction
◦
Interim
orders
◦
Defined
under section 2(14) of the CPC
◦
Interim
orders are those orders passed by a court during pendency of a suit or
proceeding which do not determine the substantive rights and liabilities of
parties with respect to subject matter of the suit or proceeding.
◦
Interim
orders are necessary to deal with and protect rights of the parties in the
interval between the commencement of the proceedings and final adjudication.
They prevent abuse of process during the pendency of proceedings. Such interim
orders may be summarized as follows:
◦
Interim
order
◦
Commissions:
Order 26
◦
Arrest
before judgment: Order 38
◦
Attachment
before judgment: Order 38
◦
Temporary
injunctions: Order 39
◦
Receiver:
Order 40
◦
Security
for costs: Order 25
◦
Payment
in court: Order 24
Injunction
◦
Injunction
and Stay order
What is the
difference between stay proceedings and an injunction?
A stay
order means to temporarily suspend the execution of a court judgment or
other court order. It is a suspension of a case or suspension of particular
proceedings within a case.
Whereas
an injunction is a remedy in the form of a court order that
compels a party to do or refrain from certain acts. A party that fails to obey
an injunction faces criminal or civil penalties, including possible
budgetary sanctions and even imprisonment.
◦
Injunction
and Status Quo
◦
Status quo means
existing condition at any given point in time.
◦
The
relief of status quo is as good as injunction. Thus principles of granting of
injunction apply to status quo also.
◦
But
it is necessary for the court to clarify the conditions in which the order of status
quo is passed.
Principles governing temporary injunction
- Whether
the Plaintiff has a prima facie case;
- Whether
the balance of convenience is in favour of the plaintiff
- Whether
the plaintiff would suffer an irreparable injury if prayer for temporary
injunction is disallowed.
Gujarat Bottling Co. vs. Coca Cola Ltd (1995)5 SCC 545
Prima
facie
◦
Prima facie case
must precede the order of injunction. Only when prima facie case is
established, the court will consider other factors.
◦
It
does not mean that the court should try the case in detail/ decide on evidence.
It should decide the case based on plaint, affidavit or such other documents
given by the court.
Martin
Burn Limited vs. R.N.Banerjee AIR 1958 SC 514
Seema
Arshad Zaheer & Ors Vs Municipal Corporation of Greater Mumbai & Ors.,
(2006) 5 Scale 263
◦
In
this case, the Supreme Court indicated the salient features of prima
facie case.
◦
In
addition, it added that temporary injunction is an equitable relief. The
discretion to grant such relief will be exercised only when the plaintiff’s
conduct is free from blame and he approaches the court with clean hands.
Irreparable
injury
◦
The
expression does not mean that there should be no possibility of repairing the
injury. It only means that the injury must be a material one.
◦
In
Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan
Singh (1974) 40 Cut LT
336
◦
The
court observed: ‘Irreparable injury’ means such injury which cannot be
adequately remedied by damages. The remedy by damages would be inadequate if
the compensation ultimately payable to the plaintiff in case of success in the
suit would not place him in the position in which he was before injunction was
refused.
Balance
of (in)convenience
◦
The
court should issue an injunction where the balance of convenience is in favour
of the plaintiff and not where the balance is in favour of the opposite party.
◦
The
meaning of “balance of convenience” in favour of the plaintiff is that if an
injunction is not granted and the suit is ultimately decided in favour of the
plaintiffs, the inconvenience caused to the plaintiff would be greater than
that which would be caused to the defendants if an injunction is granted but
the suit is ultimately dismissed.
◦
Although
it is called “balance of convenience”, it is really the “balance of
inconvenience”, and it is for the plaintiffs to show that the inconvenience
caused to them would be greater than that which may be caused to the
defendants.
◦
Antaryami Dalabehera vs Bishnu Charan Dalabehera 2002 I OLR 531
◦
“…and the last ingredient is, balance
of convenience, which means, comparative mischief for inconvenience to the
parties. The inconvenience to the petitioner if temporary Injunction is refused
would be balanced and compared with that of the opposite party, if it is
granted.”
◦
Injunction
◦
Dalpat Kumar vs. Prahlad Singh (1992)1 SCC 719
‘The
third condition also is that "the balance of convenience" must be in
favour of granting injunction.
The
Court while granting or refusing to grant injunction should exercise sound
judicial discretion to find the amount of substantial mischief or injury which
is likely to be caused to the parties, if the injunction is refused and compare
it with that it is likely to be caused to the other side if the injunction is
granted.
If on
weighing competing possibilities or probabilities of likelihood of injury and
if the Court considers that pending the suit, the subject-matter should be
maintained in status quo, an injunction would be issued. Thus the Court has to
exercise its sound judicial discretion in granting or refusing the relief of ad
interim injunction pending the suit.’
◦
Important
Rules under Order 39
◦
Rule
2- Continuance of Breach of injunction
◦
Rule
2A- Consequences of such breach
◦
Rule
3- Notice to opposite party before granting injunction + Proviso
◦
Rule
3A- Ex-parte application to be set side within 30 days
◦
Rule
4- Order for injunction to be set aside
◦
BoJack Horseman has found that Big Mouth,
another TV show on Netflix, has been using a deceptively similar logo. Thus,
BoJack Horseman files a suit for infringement and seeks an interim injunction.
It is pertinent to note that Big Mouth has filed a caveat petition. As
BoJackHorseman’s legal counsel, advise
them the best way to obtain an ex-parte interim injunction against Big Mouth.
◦
Withdrawal
and Compromise- Order 23
Withdrawal
Without
leave of the court Rule 1(1) &4
◦
This
right is absolute and unqualified and the court cannot refuse it.
◦
However,
once the suit is withdrawn, the plaintiff is barred from filing a fresh suit on
the same cause of action.
◦
The
plaintiff also becomes liable to pay such costs on the defendant as imposed by
the court
◦
The
Defendant can get transposed as Plaintiff on such withdrawal by the Plaintiff
With
leave of the court Rule 1(3)
◦
On
two grounds
- Formal defect
This means
that some sort of form or procedure not affecting the merits of the case. Eg:
Misjoinder of cause of action, want of statutory notice under section 80 of the
Code etc. However, a defect that effects the merits of the case cannot be said
to be formal effect. Eg: Bar of limitation, insufficiency of evidence etc.
ii.
Sufficient grounds
◦
Where
the suit becomes infructuous, inability to execute the decree etc.
Bhoopathy
vs. Kokila (2000)5
SCC 458
◦
Court
has a wide discretion in the interest of justice in exercising it’s power under
sufficient grounds.
◦
Compromise
of suit – Rule 3- 3B
◦
Once
a suit is instituted, it is open to the parties to compromise, adjust or settle
it by an agreement or compromise.
◦
The
general principle is that all matters that can be decided in a suit can also be
settle by means of a compromise.
◦
The
term essentially means settlement of disputes by mutual consent.
◦
Conditions
of compromise
- There must be an agreement or
compromise;
- It must be in writing and
signed by the parties;
- It must be lawful;
- It must be recorded by the
court; and
- A compromise (consent) decree
must have been passed.
◦
Recording
of compromise
◦
In
case of suit, the trial court has the record it and in case of revision or
appeal, the appellate court has to record it.
◦
A
dispute regarding genuineness of compromise can always be raised and
jurisdiction of the court to try such dispute always lies with the court which
recorded and passed the consent decree.
◦
Can
an appeal be filed against such decree?
◦
R.Ranajana
vs. S.R.Venkataswamy (2014)15 SCC 471
◦
Compromise
◦
Who
can challenge a compromise?
◦
A
party can do it on the ground that there is no compromise agreement.
◦
How
can a minor enter into a compromise in a suit?
◦
The
next friend / guardian can enter into a compromise only with the permission of
the court.
◦
Compromise
◦
‘Satisfaction
of the court’
◦
It
is the duty of the court to satisfy itself with the terms of the agreement.
◦
The
court must be satisfied that the agreement is lawful and it can pass a decree
in accordance with it.
◦
If
an order is not lawful, the court recording it can recall such order of
compromise.
◦
Can
a compromise decree lead to res judicata?
◦
A
compromise decree is not a decision of the court. It is acceptance by the court
of something to which parties had agreed. Thus a compromise decree cannot
operate as res judicata.
Pullavarthi
Venkata vs. Valluri Jagganadha AIR 1967 SC 591
◦
A
Compromise decree only operates as estoppel between the parties.
Sailendra
Narayan vs. State of Orissa AIR 1955 SC 346
◦
Illustration
◦
Nikhil, is appointed as Rahul’s (a 14-year old
minor) legal guardian for the purpose of instituting a suit on behalf of Rahul
against Bengaluru Football Club( owned by JSW group) for breach of contract.
BFC approaches Nikhil with an offer to pay 50% of the relief claimed in a compromise.
How should Nikhil proceed with the case?
◦
Appeal
◦
The
expression has not been defined in the code.
◦
The
essentials of an appeal
- There is a decision by a
competent authority ;
- There is an aggrieved person;
and
- A reviewing body ready and
willing to entertain an appeal
◦
A
right of appeal is a statutory right.
◦
First
Appeals- Section 96- 99A and Order 41
◦
Second
Appeals – Section 100-103,107,108 and Order 41
◦
Appeals
to Supreme Court- Scetion 109,112, and Order 45
◦
First
appeal
◦
First
appeal lies against a decree passed by a court of original jurisdiction.
◦
It
can be filed in a superior court which may or may not be a High Court.
◦
It
is maintainable on a question of law or fact or a mixed question of law and
fact.
◦
Section
96
◦
Conditions
to fulfil under section 96
- There must be a ‘decree’ and
- The party must be ‘adversely
affected’ by such decree.( If such party is dead, by his legal
representatives)
• Section 96(2)- Appeal against
ex-parte decree
• Section 96(3)- No appeal shall lie
against consent decree
◦
Forum
of Appeal
◦
The
value of the suit determines the forum of the suit and also the appeal.
◦
It
is decided based on the value of the suit and not the amount decreed.
◦
Forms
of Appeal – Rules 1-4
◦
Presentation
of Appeals – rules 9-10
◦
Condonation
of delay – Rule 3A
◦
Stay
of proceedings – Rules 5-8
◦
Admission
of Appeal – Rule 1, 14
◦
Section
97
◦
Where
no appeal is preferred against preliminary decree, its correctness cannot be
questioned in an appeal against the final decree.
◦
Section
98
◦
This
section deals with Appeals heard by two or more judges.
◦
Two
contradictory judgements do not decide any question or issue in case of rights
of the parties.
◦
In
such a case the decisions rendered will amount to only opinions of the
respective judges.
◦
The
basic requirement for the applicability of section 98(2) is that the division
bench of the H.C consisting of two or more judges must be dealing with the case
when there is decision of a lower court placed for consideration before the
Bench.
◦
By
its very language, section 98(2) cannot be applied to decisions rendered by a
Division bench of a H.C in exercise of its original civil jurisdiction.
◦
Reliance
Industries vs. Praveen Bhai (1997) 7 SCC 300
◦
Second
Appeal
◦
A second Appeal lies to the High Court on a
substantial question of law.
◦
It must precisely state the substantial question
of law involved.
◦
The H.C cannot allow a new plea in a second
appeal stating that it’s a substantial question of law.
◦
Even though the substantial question of law has
not been defined, the court has followed some principles to determine the same.
State bank of India vs. S.N Goyal (2008) 8 SCC 92
The word substantial refers to the impact of the question of
law on the parties involved.
◦
How to determine if it involves a substantial
question of law
- Whether
it is of general public importance ;or
- Whether
it directly and substantially affects the rights of the parties; or
- If
it’s an open question i.e. If that question is undecided by the Supreme
Court.
Chunilal Mehta vs. Century Spring Mfg. & Co. AIR
1962 SC 1314
In Ratanala Bansilal v. Kishorilal Goenka, AIR 1993
Cal 144, it was held that substantial question of law can be confined to only
between the parties.
Section 100 A
◦
Section 100 A states that no further appeal
shall lie against the decision of a single judge of a High Court in a second
appeal.
◦
The
CPC does has no provisions pertaining to Appeal within the High Court. This
question is dealt by the provisions of Letters Patent of the High Court
concerned.
◦
Hence, a second appeal from the decision of a
single judge of a High Court is possible by way of letters patent appeal.
◦
Letter
Patent Appeal
◦
Letter
patent appeal (LPA) is an appeal by a petitioner against a decision of a single
judge to another bench of the same court. It was a remedy provided when high courts
were first created in India in 1865. This is an only remedy which is available
in court to the petitioner against the decision of a single judge of a High
Court, otherwise, a remedy would lie with only in the Supreme Court.
◦
Under
LPA, the petitioner has the option to appeal the decision of a single judge to
the division bench of a High Court , before going to the Supreme Court
◦
So
applying for LPA, the petitioner will save the cost to moving to the Supreme
Court. LPA is an intra-court appeal in high court and inter-court in Supreme
Court and both have different rules regarding this LPA.
◦
Illustration
◦
Vadiraj wants to file an appeal from an original
or appellate decree or order is decided by
Justice Krishna Dixit of the High Court of Karnataka , before Justice
Sathyanarayana. Is that permissible under law?
◦
Appeal
to Supreme Court
◦
Articles
132,133,134-A of the Constitution of India deal with appeals to the Supreme
Court.
132.
Appellate jurisdiction of Supreme Court in appeals from High Courts in certain
cases
( 1 ) An
appeal shall lie to the Supreme Court from any judgment, decree or final order
of a High Court in the territory of India, whether in a civil, criminal or
other proceeding, if the High Court certifies under Article 134A that the case
involves a substantial question of law as t the interpretation of this
Constitution(2) Omitted
(3)Where
such a certificate is given, any party in the case may appeal to the Supreme
Court on the ground that any such question as aforesaid has been wrongly decided
Explanation
: For the purposes of this article, the expression final order includes an
order declaring an issue which, if decided in favour of the appellant, would be
sufficient for the final disposal of the case
Article
133 Appellate jurisdiction of Supreme Court in appeals from High Courts in
regard to civil matters
(1)An
appeal shall lie to the Supreme Court from any judgment, decree or final order
in a civil proceeding of a High Court in the territory of India if the High
Court certifies under Article 134A
(a)that
the case involves a substantial question of law of general importance;
and(b)that in the opinion of the High Court the said question needs to be
decided by the Supreme Court
(2)Notwithstanding
anything in Article 132, any party appealing to the Supreme Court under clause
( 1 ) may urge as one of the grounds in such appeal that a substantial question
of law as to the interpretation of this Constitution has been wrongly decided
(3)Notwithstanding
anything in this article, no appeal shall, unless Parliament by law otherwise
provides, lie to the Supreme Court from the judgment, decree or final order of
one Judge of a High Court
134A.
Certificate for appeal to the Supreme Court:
Every
High Court, passing or making a judgment, decree, final order, or sentence,
referred to in clause ( 1 ) of Article 132 or clause ( 1 ) of Article 133, or
clause ( 1 ) of Article 134(a) may, if it deems fit so to do, on its own
motion; and
(b)shall,
if an oral application is made, by or on behalf of the party aggrieved,
immediately after the passing or making of such judgment, decree, final order
or sentence, determine, as soon as may be after such passing or making, the
question whether a certificate of the nature referred to in clause ( 1 ) of
Article 132, or clause ( 1 ) of Article 133 or, as the case may be, sub clause
(c) of clause ( 1 ) of Article 134, may be given in respect of that case
◦
Under
CPC, section 109 and 112 read with Order 45 deal with Appeals to Supreme Court.
◦
Under
section 109, & Order 45 Rule 3, for an appeal to the S.C ,
- A judgment, decree or final
order must have been passed by the H.C,
- The case must involve a substantial
question of law of general importance
- In the opinion of the High
Court the said question needs to be decided by the Supreme Court.
◦
The
amendment to 134A added the certification clause.
◦
The
effect of the amendment is that the aggrieved party who wished to approach S.C
must immediately make an oral application after the pronouncement of the
judgement, and if such resort is not made, the party will not be able to appeal
under Art.133(b).
Dhangir
vs. Janaki Das AIR
1990 Raj 102
◦
Appeals
from Orders (MFA)
◦
Section
104 to 108, and Order 43 deals with Appeals from orders.
◦
They
state that certain orders are appealable and no appeal lies from other orders.
◦
Appealable
Orders
◦
Miscellaneous
First Appeal (MFA)
◦
Miscellaneous
First Appeals are appeals on orders as given under Section 104 and Order 43.
◦
What
happens if a party wants to challenge an order that does not fall under Section
104 and Order 43?
◦
The
party can file a writ under section 227 (Supervisory powers of the High Court )
and seek the appropriate remedy.
◦
Illustration
◦
Kush, files an interlocutory application for
amendment of Plaint. The application is
rejected. Kush wants to challenge this
order by way of appeal, when the suit is pending in trial court. Advise Kush.
◦
Execution
◦
When
a party obtains a decree from a court of law against another person/party, the
next step is to get the decree satisfied. The proceeding by which the party
moves the court for satisfaction of decree is called execution proceedings.
◦
The
term “execution” has not been defined in the code. The expression
“execution” simply means the process for enforcing or giving effect to the
judgment of the court.
◦
Decree Holder – Party in whose favour the decree is granted
◦
Judgement debtor- Party against whom the decree is sought to be executed
◦
The
principles governing execution of decree and orders are dealt with in Sections
36 to 74 and Order 21 of the Civil Procedure Code.
Who may
apply for execution ?
◦
The
decree- holder, or the legal representative if the decree holder is dead.
What are
the decrees that may be executed?
◦
The
decree of a court against which no appeal has been made shall be executed after
expiry of the limitation period.
◦
Where
a decree is reversed, modified on appeal, the only decree capable of the
execution is the appellate decree, but exceptionally where the appellate
judgment simply dismisses the appeal. General rule that the appellate decree
alone is to be executed, does not apply and the court should look at the later
decree for the information of its contents.
◦
Section
51 defines the jurisdiction and power of the court in executing the decree, the
manner of executing the decree has been laid down in the rules of the schedule.
◦
The
court has no authority except for circumstances provided under the proviso to
refuse to order execution of decree in the mode sought for.
◦
Simultaneous
execution
◦
As
a matter of fact, a decree maybe simultaneously executed against a person and a
property of the judgement debtor (provisions of Order XXI, Rule 30), though the
court under Order XXI Rule 21 the power to refuse simultaneous execution in
some cases.
◦
It
is the duty of the court to assist the decree holder for realizing the decretal
amount in as short a time as possible.
◦
Section
51
◦
Under
section 51, court may order execution in any of the following five modes
- By delivery of any property
specifically required – Order XXI Rule 31 for
specified movable property and Order XXI Rule 35 for specified immovable
property
- By attachment and sale, or by
sale without attachment of any property- where the decree itself directs the sale
of the property, no attachment is required. A sale without attachment is
not without jurisdiction, however under Order XX1, Rule 30 and 64, it
might become irregular.
- By arrest and detention in
prison for such period not exceeding the period specified in section 58; - A decree for payment of money
+ decree for payment of money including decree for payment of money as an
alternative relief maybe executed by the arrest and detention the
judgement debtor in civil prison. Similarly, decree for specific movable
property also under Order XXI Rule 31(1) may be employed under this
method.
There are
some exceptions to this rule.
◦
Judgement
debtor is a woman- section 56
◦
Minor
– section 5
◦
Legal
representative of a deceased person –
section 50
iv. By
appointment of receiver – This kind of execution is known as equitable
execution since it is entirely within the within the discretion of the court
and cannot be claimed as a right. The decree holder must show that there is no
possibility to restore to other modes of execution. The court must be satisfied
that it is likely to benefit both the decree holder and the judgement debtor.
This has to be read with Order 40, Rule 1 regarding the appointment of a
receiver and his powers thereof.
◦
v.
In such other manner as the nature of the relief granted may require- Residuary
clause and comes into play only when other clauses are not executable.
◦
Other
modes of execution
◦
Different
modes of execution not provided under section 51
◦
Partition
– Section 54
◦
An
Award of compensation- Order 21, Rule
31(2)
◦
Restitution
of conjugal rights – Order 21, Rule 33
◦
Attachment
of decree- Order 21, Rule 53
◦
In
Jolly Varghase vs. Bank of Cochin AIR 1980 SC 470, the Supreme Court
held this section, if superficially read, it means that if at any time after passing the old decree,
the judgement debtor had come by resources and had not discharged the decree he
could be detained in prison even though at later point of time he was found to
be without any money.
◦
From
the perspective of international law the question posed was whether it was
right to enforce a contractual liability by imprisoning a debtor in the teeth
of Article 11 of the International Covenant on Civil and Political Rights. The
Article reads:“No one shall be imprisoned merely on the ground of inability to
fulfil a contractual obligation”.
◦
That
is not a sound position apart from being inhuman going by the standards of
Article 11 (of the Covenant) and Article 21 (of the Constitution). The simple
default to discharge is not enough. There must be some element of bad faith
beyond mere indifference to pay, some deliberate or recusant disposition in the
past, or, alternatively, current means to pay the decree or a substantial part
of it.
◦
Section
60
◦
Property
liable to be attached under section 60
- Land ;
- House or other buildings;
- Goods;
- Money and bank notes;
- Cheques, bills of exchange, hundis
and promissory notes;
- Government securities , bonds
and other securities for money;
- Bonds;
- Debts;
◦
Viii.
Shares in corporation and
◦
ix.
All other saleable property moveable or immovable belonging to the judgement
debtor or over which he has a disposing power which he can exercise for his own
benefit.
In order to
attach a property under this section, the property must be ‘saleable’, i.e.
a) The property must be in existence,
thus future or uncertain property will not be saleable property
b) The property must be capable of
being transferred.
◦
Illustration
◦
'P' institutes a money suit and wrongfully
undervalues the suit to avoid paying court fees. The court orders 'P' to pay
the correct amount in 14 days. 'P' fails to do so. Being the lawyer of ‘P’ what
will be your arguments in this regard. Substantiate it relevant provisions and
case laws.
◦
The suit is dismissed for non-payment of
court fees. X Trading Co., wants to file the suit again with the corrected
amount. Decide whether the subsequent suit is barred by Res Judicata.
◦
Miscellaneous
◦
Inherent
powers – Section 151
◦
All
such powers as maybe necessary to the right and to undo a wrong in the course
of the administration of justice constitute the inherent powers of the court.
◦
The
objective – To serve the ends of justice
◦
In
so far as the matter in question falls within the ambit of the express
provision of the statute, the inherent powers of the court, must to that
extent, be regarded as abrogated by the legislature.
◦
But
there will always be cases that do not fall under any express provision of a
statute and where justice needs to be done.
“Section 151 of the Code of
Civil Procedure does not confer any extraordinary jurisdiction on this Court.
It saves the inherent power of all the civil courts, i.e., from the trial judge
to the Supreme Court. Thus, where a matter has expressly been provided for in
the body of the Code, ordinarily inherent power shall not be resorted to.
The underlying principle of Section 151 of the Code ordinarily would apply
where the area is grey. It indisputably confers incidental powers. It confers
power on a court to do something which in absence of any provision
contrary thereto would lead to advancement of justice and prevent injustice.
The power to transfer one case from one court to another or from one tribunal
to another having jurisdiction of a different State is an extraordinary
jurisdiction. For exercising the said power, this Court has to take into
consideration a large number of factors. Such a power is to be exercised if
exceptional situation arises and not otherwise.”
Nahar
Industrial Enterprises Ltd vs Hongkong & Shanghai Banking Corpn. (2009)8 SCC 646
◦
The
court cannot set aside an ex-parte decree under this section.
◦
Further,
order passed under section 151 is not appealable as it does not fall under
section 104 or Order 43. Thus, a court cannot entertain an appeal from a non-
appealable order under this section.
Keshardeo
vs. Radhakissen AIR 1953 SC 23
◦
“The inherent powers of the
Court are in addition to the powers specifically conferred on the Court by the
Code. They are complementary to those powers and therefore it must be held that
the Court is free to exercise them for the purposes mentioned in s.
151 of the Code when the exercise of those powers is not in any way in conflict
with what has been expressly provided in the Code or against the
intentions of the Legislature. It is also well recognized that the inherent
power is not to be exercised in a manner which will be contrary to or different
from the procedure expressly provided in the Code.”
◦
Padma Sen vs. State of U.P AIR 1961 SC 218
◦
Interlocutory
Application
What is an interlocutory application (commonly referred to
as IA)? Is it defined under any provisions of CPC? During what stage of a suit,
can an IA be filed?
“Interlocutory application” means an application to the
Court in any suit, appeal or proceeding in any Court, other than a proceeding
for the execution of a decree or an order.
An interlocutory application is an application which is
moved in the main petition. It is usually filed to seek some urgent/immediate
relief or to bring certain new facts to the knowledge of the court.
It can be filed during any stage of the suit
◦
There
is no one specific provision to file interlocutory application.
◦
The
interlocutory application will have to filed under such provision, for which
the relief is sought for.
Ø Interlocutory application(IA) for
Temporary injunction is filed under O.39, Rule 1&2.
Ø Interlocutory application(IA) to
Appoint a Receiver is filed under Order 40, Rule 1
◦
Illustration
◦
Lekha files a petition against Rahul under
Section 9 of the Family Courts Act, 1984 for restitution of conjugal rights.
The petition is decreed in her favour. Despite this, Rahul refuses to live with
Lekha since he is in love with Rachael. Lekha now wants to file an execution
petition and wants to send Rahul to civil prison (one of the several modes of
executing a decree). Is that permissible? Advise Lekha.
◦
Order 21, Rule 32 &33
◦
Execution
of restitution petition
◦
Where
the party against whom a decree for restitution of conjugal rights is passed,
has an opportunity of obeying the decree and has wilfully failed to obey it,
the decree may be enforced by attachment of his property or by his detention in
civil prison or by both.
◦
Where
any attachment made under the circumstances, has remained in force for one
year, and if the party has not obeyed the decree and the decree-holder has
applied to sale of the attached property so that out of the proceeds of the
sale, he could get such compensation as the court proceeds to award.
◦
In
a decree of restitution, the party, against whom the decree is passed, cannot
be compelled physically to restore cohabitation. A court is not competent to
direct that the wife or husband be, bodily handed over to other spouse and
restrain him or her of liberty until he or she is willing to render him or her
conjugal rights.
◦
"Where the party against whom a decree for the specific performance
of a contract, or for restitution of conjugal rights or for an injunction, has
been passed, has had an opportunity of obeying the decree and has willfully
failed to obey it, the decree may be enforced in the case of a decree for
restitution of conjugal rights by the attachment of his property or, in the
case of a decree for the specific performance of a contract, or for an
injunction by his detention in the civil prison, or by the attachment of his
property, or by both.”
Smt.
Saroj Rani vs Sudarshan Kumar Chadha 1984 AIR 1562
◦
Illustration
◦
'P' institutes a money suit and wrongfully
undervalues the suit to avoid paying court fees. The court orders 'P' to pay
the correct amount in 14 days. 'P' fails to do so. Being the lawyer of ‘P’ what
will be your arguments in this regard. Substantiate it relevant provisions and
case laws.
◦
Transfer
of cases
◦
Explain the grounds and procedure for transfer
of cases with the relevant CPC provisions.
◦
‘Any suit can be withdrawn at any stage of the
suit by the plaintiff’. Explain this statement with the required conditions and
exceptions, if any.
