The Citizenshp Amendment Act, 2019 & its constitutional Validity

The Constitutional Validity of the Citizenship Amendment Act, 2019

-By K. Rahul Krishna[1]

Presumption of Constitutionality

1.       It is well established that the presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and it does not intend to make laws which are ultra vires.[2] In Charanjit Lal v. Union of India,[3] the Supreme Court stated- “…the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.”

2.       It is established that when two possible interpretations of a statute occur –one in violation of the Constitution and one in favour of the Constitution, in such a case, the interpretation that favours the Constitution is considered valid[4] until the petitioner proves otherwise, in a manner that convinces the Court beyond reasonable doubt, laying the burden of proof on the petitioner.

Whether the Citizenship Amendment Act, 2019 violates Art. 14 of the Constitution?

The Citizenship Amendment Act, 2019 is NOT violative of Article 14 of the Constitution of India. The principles of equality and equal protection do not apply to the illegal migrants in the instant case as they are in unequal and dissimilar circumstances. In any case, the classification made by the Act is reasonable for the purpose of legislation and it follows the principles laid down by the Hon’ble Court Supreme Court. The presumption by this Court must be in favour of constitutionality of the Act and the burden of proof is on the petitioner to prove violation of Article 14 of the Constitution of India in no unclear terms.  

Doctrine of equal protection does not apply to the illegal migrants

1.       The Citizenship Amendment Act, 2019 has been enacted to grant immunity to the persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who have faced persecution on the grounds of religion in the countries Pakistan, Afghanistan and Bangladesh and migrated to India seeking shelter and continued to stay in India even after the travel documents expired or with no documents. A reading of the statement of objects and reasons of the bill shows that the same excludes the Muslim community from these three countries which are Islamic theocracies.

2.       It is submitted that this Act does not violate Art. 14 of the Constitution which guarantees equality before the law and equal protection of the laws. Equal protection means the right to equal treatment in similar circumstances,[5] both in the privileges conferred and the liabilities imposed. It is submitted before this Hon’ble Court that equal protection does not apply in the instant case because the subjects of the legislation (the illegal migrants) are in dissimilar circumstances regarding their status of minority in the respective countries of Pakistan, Bangladesh & Afghanistan and hence are not liable to be treated equally. Each of these three countries are Islamic theocracies, which means they are Muslim majority countries. Other religions such as Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on the grounds of religion in these countries and having regard to that fact, the illegal migrants are in different or dissimilar circumstances and cannot be treated as equals. Therefore, the doctrine of equal protection does not apply in the present case.

3.       The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, as the varying needs of different classes of persons often require separate treatment.[6] The principle does not take away from the State the power of classifying persons for legitimate purposes.[7] The legislature is competent to exercise its discretion and make classification.[8] Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.[9] In this context, there arises no question of violation of Art. 14[10] in the instant case.

4.       Differential treatment does not per se constitute violation of Art. 14. It denies equal protection only when there is no reasonable basis for the differentiation.[11] What Art. 14 prohibits is class legislation and not reasonable classification for the purpose of legislation.[12] It is submitted that the classification made under the impugned legislation is reasonable.

The Classification made under the Act is reasonable.

5.       In order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) That the classification must be founded on an intelligible differential which distinguish persons or things that are grouped together from others left out of the group and (ii) That, that differential must have a rational relation to the object sought to be achieved by the statute in question. [13] What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.[14]

6.       It is humbly submitted to this Hon’ble Court that in the instant case the object of the Act is to grant immunity to persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities who have faced persecution on the grounds of religion in the countries Pakistan, Afghanistan and Bangladesh and migrated to India seeking shelter and continued to stay in India even after the travel documents expired or with no documents. Muslims are excluded. The classification of the illegal migrants is based on their religion and country of origin because these three countries being Islamic theocracies have a history of persecuting minorities based on religious grounds. Thus, the basis for classification is clearly connected with the object of the Act and therefore it is reasonable classification permitted under Article 14 of the Constitution of India.

7.       Art. 14 does not insist that legislative classification should be scientifically perfect or logically complete.[15] A mere possibility of a better classification is no ground to strike down the classification made by the statutory authority.[16]

8.       It is well established that when a law is challenged as denying equal protection; the question for determination by the Court is not whether it has resulted in inequality, but whether there is some difference which bears a just and reasonable relation to the object of legislation.[17] Mere differentiation or inequality of treatment or inequality of burden[18] does not per se amount to discrimination within the inhibition of the equal protection clause.[19] To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view.[20]

The burden of proof is on those who attack it

9.       It is also well established that the burden of showing that a classification rests upon an arbitrary and not reasonable basis[21] or the discrimination is apparent and manifest[22] is upon the person who impeaches the law as a violation of the guarantee of equal protection.[23] Further, if any state of facts can be reasonably conceived that would sustain the classification, the existence of that state of facts at the time the law was enacted must be assumed.[24]

10.   The allegation must be specific, clear and unambiguous[25] and must give particulars.[26] Throwing out vague hints that there may be other instances of like nature which the impugned legislation has left out, is not enough. It is for the petitioner to show that the persons or objects as between whom the Legislature is alleged to have discriminated, are similarly situated.[27] Thus the critics arguments against the impugned Act that the Rohingyas of Myanmar and Tamils of Sri Lanka have been excluded falls flat as the supreme court categorically held that the mere fact that there are other instances which are left out of the Act does not constitute unreasonableness within the meaning of Article 14. 

11.   It is well established that the Govt. policy, unless shown manifestly arbitrary or wholly unreasonable cannot be held violative of Art. 14.[28] An Act of legislature cannot be struck down merely by saying that it is arbitrary.[29] Therefore the Citizenship (Amendment) Act, 2019 cannot be struck down as it makes reasonable classification for the purpose of legislation permitted under Art. 14 of the Constitution of India.

12.   Where the basis of classification is not apparent on the face of the law, it may be established by the State not only by material evidence[30] or by bringing to the notice of the Court facts of which the Court can take judicial notice[31] but also by making an affidavit,[32] stating the circumstances which led to the making of a statutory instrument. Similarly parliamentary proceedings may be referred to for showing the background in which an enactment was made.[33] Parliament has a number of times reiterated that protecting the persecuted minorities in the neighbouring countries is India’s responsibility.

Supreme Court’s position on foreigners/illegal migrants

The Hon’ble Supreme Court while examining the contention that Section 3(i)(b) of The Foreigners Act,1956 offends Article 14 of the Constitution of India had held that the classification of foreigners into different groups does not offend Article 14 since there is no individual discrimination and there is a reasonable classification. Even under the amendment Act, the words ‘minority communities’ in the referred countries itself shows that they form into a separate group and therefore it may be said that there is a reasonable classification.

The Hon’ble Supreme Court in Mr. Louis De Raedt & Ors Vs. Union of India[34] And Ors has specifically held that the fundamental right of the “foreigner” is confined only to Article 21 of the Constitution of India for life and liberty. In the light of the law laid down by the Hon’ble Supreme Court that except the Article 21 of the Constitution of India a foreigner cannot claim any other right under the Constitution viz. Article 14 of the Constitution of India, even if the amendment legislation is challenged on the ground of violation of Article 14 of Constitution of India, it may not sustain unless the Supreme Court relooks into the scope of Article 14 of the Constitution of India vis-a-vis the illegal migrants.

Article 21

With regard to Article 21, The Supreme Court in Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta & others[35] had held that the power of the government in India to expel foreigners is absolute and unlimited and there is no provision in Constitution fettering this discretion. It was pointed out that the legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned, the executive government has unrestricted right to expel a foreigner. So far as the right to be heard is concerned, there cannot be any hard-and-fast rule about the manner in which a person has to be given an opportunity to place his case. The principle of procedure, being just, fair and reasonable can have no application in the matter of identification of a foreigner and his deportation since he is not being deprived of his life or personal liberty. Deportation proceedings are not proceedings for prosecution.[36]

In All India Lawyers Forum for Civil Liberties v. Union of India[37] the Supreme Court directed the government to verify the status of alleged illegal immigrants from Bangladesh and to deport them by setting up appropriate mechanism if their residential addresses are not verified.

Thus we can see by the several rulings of the Supreme Court of India that verification and deportation of illegal migrants is within the scope of Article 21 of the Constitution of India.

---

[1] Vth year Student, School of Law, Christ (deemed to be) University.

[2] State of Bombay v. Balsara F.N., AIR 1951 SC 318; Prabhu Das Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044; Garg, R.K. v. Union of India, AIR 1981 SC 2138 (paras 7-8).

[3] Charanjit Lal v. Union of India AIR 1951 SC 41.

[4] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.

[5] Shrikishan Singh v. State of Rajasthan, AIR 1955 SC 795.

[6] ACHARYA DR. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 56 (13^th ed. 2006).

[7] State of Bombay v. Balsara F.N., AIR 1951 SC 318; Ameroonissa Begum v. Mehboob Begum, AIR 1953 SC 91; Babulal Amthalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877; Gopi Chand v. Delhi Administration, AIR 1959 SC 609.

[8] Anukul Chandra Pradhan v. Union of India, (1997) 6 CC 1 (para 5).

[9] State of Bombay v. Balsara F.N., AIR 1951 SC 318

[10] The Constitution of India, 1950.

[11] Ameroonissa Begum v. Mehboob Begum, AIR 1953 SC 91; Babulal Amthalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877; Gopi Chand v. Delhi Administration, AIR 1959 SC 609

[12] Budhan Chowdhry v. State of Bihar, AIR 1955 SC 191.

[13] Budhan Choudry v. State of Bihar, AIR 1955 SC 191; Hanif v. State of Bihar, AIR 1958 SC 731; Harakchand Ratanchand Banthia v. Union of India, AIR 1970 SC 1453; Pathumma v. State of Kerala, AIR 1978 SC 771 (para 41); Babu Ram v. State of U.P., (1995) 2 SCC 689 (para 37).

[14] State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75, MUKHERJEA, J; Budhan Choudry v. State of Bihar, AIR 1955 SC 191.

[15] Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404; P.B. Roy v. Union of Inida, AIR 1972 SC 908.

[16] State of Bihar v. Sachchidanand Kishore Prasad Sinha, AIR 1995 SC 885.

[17] Suraj Mall v. Biswanath, AIR 1953 SC 545; State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.

[18] Ramkrishna Dalmia v. Tendolkar Justice S.R., AIR 1958 SC 538

[19] ACHARYA DR. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 62 (13^th ed. 2006).

[20] Suraj Mall v. Biswanath, AIR 1953 SC 545; State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75; Ramkrishna Dalmia v. Tendolkar Justice S.R., AIR 1958 SC 538; State of A.P. v. Nalla Raja Reddy, AIR 1967 SC 1458.

[21] State of U.P. v. Kartar Singh, AIR 1964 SC 1135; Ajay Kumar Mukherjee v. Local Board of Barpeta, AIR 1965 SC 1561; East India Tobacco Co. Ltd. V. State of A.P., AIR 1962 SC 1733. 

[22] Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi, AIR 1996 SC 1963.

[23] ACHARYA DR. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 98 (13^th ed. 2006).

[24] Harnam Singh v. R.T.A., AIR 1954 SC 190; Syed Mohd. V. State of Andhra, AIR 1954 SC 314.

[25] V.S. Rice and Oil Mills v. State of A.P., AIR 1964 SC 1781(1788); Cochin Devaswom Board v. Vamana Setti, I.S. No. 2, AIR 1966 SC 1980; Ramnath Verma v. State of Rajasthan, AIR 1967 SC 603 (706); Prabhu Das Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044.

[26] Cochin Devaswom Board v. Vamana Setti, I.S. No. 2, AIR 1966 SC 1980; Ramnath Verma v. State of Rajasthan, AIR 1967 SC 603 (706); Prabhu Das Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044.

[27] Srikishna Singh v. State of Rajasthan, AIR 1955 SC 795; Syed Mohd. V. State of Andhra, AIR 1954 SC 314; U.P. Electric power and supply Co. Ltd. V. State of U.P., AIR 1970 SC 20 (21); Ramchand v. Union of India, AIR 1966 SC 1044.

[28] Khoday Distilleries Ltd. V. State of Karnataka, AIR 1996 SC 911 (para 19).

[29] State of Bihar v. Bihar Distillery Ltd., AIR 1997 SC 1511 (para 22).

[30] Ramkrishna Dalmia v. Tendolkar Justice S.R., AIR 1958 SC 538 (552). 

[31] Kedarnath Bajoria v. State of W.B., AIR 1953 SC 404.

[32] Ramkrishna Dalmia v. Tendolkar Justice S.R., AIR 1958 SC 538 (552).

[33] Chiranjit Lal Chouwdhuri v. Union of India, AIR 1951 SC 41.

[34] 1991 AIR 1886

[35] 1955 (1) SCR 1284.

[36] Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 para 73, relying on Attorney General of Canada v. Cain, (1906) AC 542, Chae Chan Ping v. United States 130 US 581.

[37] (1999) 9 SCC 281 Para 2.

The Code of Civil Procedure, 1908.

•       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

1. There must be an adjudication
2. Such adjudication must have been given in a suit
3. It must have determined the rights of the parties with regard to all or any of the matter in controversy in the suit.
4. Such determination must be of a conclusive nature, and
5. 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:

1. A decree or Order and cannot be both
2. Both relates to matters in controversy
3. Both are decisions given by a court
4. Both are adjudication of a court of law
5. 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

1. to hear and determine a cause,
2.  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

1. The suit must be of civil in nature
2. 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

1. Suits involving principally caste questions.
2. Suits for merely upholding dignity or honour
3. Suits relating to religious rites or ceremonies
4. 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

1. 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.

1. 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

1. The property is held by / on behalf of the defendant
2. That the relief sought can be entirely obtained through personal obedience of the defendant.
3. 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

1. The objection was taken at the court of first instance
2. It has to be raised at the earliest possible opportunity in cases where issues are settled , at or before such settlement
3. 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

1. There are two suits, one previously instituted and one subsequently instituted
2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit
3. Both the suit must be between the same parties or their legal representatives
4. The previously instituted suit must be pending  
5. The court in which previous suit is instituted must have the jurisdiction to grant relief claimed
6. 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

1. To admit the institution of the subsequent suit in the first place?
2. 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 1^st principle is of private justice while 2^nd and 3^rd 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

1. 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?
2. 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

1. A court of exclusive jurisdiction- Revenue courts, Administrative courts etc.
2. A court of limited jurisdiction-
3. 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.

1. There must be conflict of interest between co-defendants
2. It must be necessary to decide that conflict in order to give relief to the plaintiff
3. The question between co-defendants should have been finally decided and
4. 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

1. There must be right claimed by one or more persons in common for themselves and others not expressly named in the suit.
2. The parties not expressly named in the suit must be interested in such right
3. The litigation must have been conducted bona fide and on behalf of all parties concerned and
4. 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. 1. Territorial competency over the subject matter and
2. 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.

1. 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)
2. The effect of this rule is to require the defendant to inform the plaintiff what he is trying to prove in court.
3. If any pleading is omitted, there will be a presumption that the party waived that right by not relying on that point/fact.
4. 2. The denial must be specific on each allegation of fact which he does not admit, except damages. (Rule 3)
5. 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

1. Written statement under Order 8 , Rule 1
2. By amending written statement with leave of the court
3. 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

1. He may appeal the ex-parte decree under section 96;
2. He may apply for a review of the judgement under O.47, R1;
3. 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;
4. 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 1^st 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 3^rd 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 10^th July 2014. Wilson sends a statutory notice on 15^th June 2017 to the Government of Karnataka seeking compensation for premature termination of the contract. On refusal of payment, ‘W’ files a suit on 16^th 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 1^st 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)

https://www.sci.gov.in/supremecourt/2010/29379/29379_2010_Order_07-Feb-2019.pdf

◦          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

1. 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

1. Whether the Plaintiff has a prima facie case;
2. Whether the balance of convenience is in favour of the plaintiff
3. 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

1. 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

1. There must be an agreement or compromise;
2. It must be in writing and signed by the parties;
3. It must be lawful;
4. It must be recorded by the court; and
5. 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

1. There is a decision by a competent authority ;
2. There is an aggrieved person; and
3. 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

1. There must be a ‘decree’ and
2. 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

1. Whether it is of general public importance ;or
2. Whether it directly and substantially affects the rights of the parties; or
3. 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 ,

1. A judgment, decree or final order must have been passed by the H.C,
2.  The case must involve a substantial question of law of general importance
3. 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

1. By delivery of any property specifically required – Order XXI Rule 31 for specified movable property and Order XXI Rule 35 for specified immovable property
2. 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.
3. 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

1. Land ;
2. House or other buildings;
3. Goods;
4. Money and bank notes;
5. Cheques, bills of exchange, hundis and promissory notes;
6. Government securities , bonds and other securities for money;
7. Bonds;
8. 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.