CODE OF CIVIL

PROCEDURE 1908
FORMULA

1. SUITS OF CIVIL NATURE:

+ SECTION 9
2. PLACE OF SUING
+ SECTION 16
+ SECTION 19
+ SECTION 17
+ SECTION 18
+ SECTION 20
3. MAIN OBJECTION
+SECTION 21
+ SECTION 21A
+ SECTION 99
+ SECTION 22 (SECTION 17)
4. TRANSFER AND WITHDRAWAL
+SECTION 24
+SECTION 25
5. PARTIES TO SUIT
Order 1
+RULE 3
+RULE 8
+RULE 9
+ SECTION 99
+RULE 10
6. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND
MIND
+ ORDER 32
+RULE 1

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 +RULE 3
+RULE 8
+RULE 9
+RULE 11
7. PLEADINGS
+ORDER 6
+RULE 1
+RULE2
8. FRAME OF SUIT
+ORDER 2
+RULE 2
+RULE 3
9. PLAINT
ORDER 7
+RULE 1(9 points)
+RULE 2

+ORDER 6
+RULE 14
+RULE 15
AMMENDMENT OF PLEADING
+ORDER 6
+RULE 17
+RULE 18
10. RETURN,REJECT OF PLAINT AND FRESH PLAINT
ORDER 7
+RULE 10 RETURN OF PLAINT
+RULE 11 (6 points) REJECTION OF PLAINT
+RULE 13 FRESH PLAINT
11. PLAINT ADMIT
+ORDER 7 RULE 9
12. INSTITUTION OF SUIT
+SECTION 26
+ORDER 4 RULE 2

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 13. SUMMONS TO DEFENDANTS
+SECTION 27
+SECTION 28
ISSUE AND SERVICE OF SUMMONS
+ORDER 5
+RULE 1
+RULE 2
+RULE 9 (3) (5)
+RULE 9 A
+RULE 15 (CRPC SECTION 64)
+RULE 20
+RULE 20 1A
+RULE 24
+RULE 27

14. WRITTEN STATEMENT

ORDER 8
+RULE 1
+RULE 3
+RULE 4
+RULE 5
+RULE 6
+RULE 6A
+RULE 9
+RULE 10
15. APPEARANCE OF PARTIES AND CONSEQUENCES OF NON-
APPEARANCE
DISMISSAL OF SUIT AT PLAINTIFFS’S FAULT
ORDER 9
+RULE 2
+RULE 6
+RULE 4
+RULE 3
+RULE 5
+RULE 8

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 DISMISSAL OF SUIT AT DEFENDANT’S FAULT
ORDER 9
+RULE 6
SETTING ASIDE DECREES EX PARTEE
+RULE 14
+RULE 13
16. ANALYSIS OF PLEADINGS BY COURT
ORDER 10
+RULE 1
+RULE 2
+RULE 3
+RULE 4

SETTLEMENT

ORDER 10
+RULE 1A
+SECTION 89
17. ADMISSION
ORDER 12
+RULE 2
+RULE 2A
+RULE 4
+RULE 6
18. PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS
ORDER 13
+RULE 1----- ORDER 7 RULE 14--PLAINTIFF
ORDER8 RULE 1A--DEFENDANT

+RULE 4
+RULE 8
+RULE 9
19. ISSUES
+RULE 1
+RULE 5
+RULE 4

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 20. DISPOSAL OF SUIT AT FIRST HEARING
ORDER 15
+ RULE 1
+RULE 2
+RULE 4

21. SUMMONING AND ATTEDANCE OF WITNESS

ORDER 16
+ RULE 1 {EXCEPTION SECTION 56
+RULE 6 SECTION 132
+RULE 10 SECTION 133}
+RULE 12
+RULE 14 + O14R4
+RULE 10
22. ADJOURNMENTS
ORDER 17
+ RULE 1(PROVIDED)
+ RULE 1 FULL
23. HEARING OF THE SUIT AND EXAMINATION OF WITNESS
ORDER 18
+ RULE 4
+ RULE 17 (O16 R14)
+ RULE 2 (3A) (ARGUMENT)
+RULE 12
24. JUDJEMENT
+SECTION 2 (9)
+SECTION 2 (8)
+SECTION 33
ORDER 20- JUDGEMENT AND DECREE
+ RULE 1
+ RULE 3
+ SECTION 152
DECREE
+ SECTION 2(2)
ORDER 20

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5
 +RULE 6
+RULE 6A
+RULE 6B
+RULE 7
PRELIMINARY DECREE
+ SECTION 2(2) EXPLANATION:
+ORDER 20
+RULE 18
+RULE 16
+RULE 15
+RULE 14
+RULE 13
+RULE 12A
+RULE 12(O26 R9)
ORDER
+SECTION 2(14)
25. COMMISSIONS
ORDER 26
+ RULE 1
+ SECTION 75
(a) + O 26 R1 TO R8
(b) + O 26 R9
(c) + O 26 R11

AFTER DECREE
(d) + O26 R13+R14
(e) + O26 R 10A
(f) + O26 R 10C
(g) + O26 R 10B
O26 R15
O26 R16
O26 R16-A
O26 R17
SECTION 76
SECTION 77

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 26. ARREST BEFORE JUDGMENT
ORDER 38
RULE 1
RULE 2
RULE 4
RULE 5
RULE 6
RULE 12
RULE 11

ARREST AND DETENTION IN GENERAL

+ SECTION 55
+ SECTION 56
+ SECTION 57
+ SECTION 58
+ SECTION 59
ORDER 21 RULE 39
27. RECEIVER
ORDER 40
RULE 1
RULE 2
RULE 4
RULE 5
28. TEMPORARY INJUNCTION
ORDER 39
RULE 1
RULE 2A
RULE 4
RULE 3
RULE 3A
RULE 6
RULE 7
29. WITHDRAWAL AND ADJUSTMENT OF SUIT
ORDER 23

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 RULE 1
RULE 1A
RULE 3A
RULE 3B
30. DEATH,MARRIAGE AND INSOLVENCY OF PARTIES
ORDER 22
RULE 1
RULE 2
RULE 3
RULE 4
RULE 4A
RULE 6
RULE 7
RULE 8
RULE 9
REMMEDY FOR DEATH- SECTION 2(11)
31. EXCECUTION
SECTION 36 TO SECTION 50- SUBSTANTIVE
+ SECTION 38
+ SECTION 39
+ SECTION 40
+ SECTION 42
+ SECTION 45 (only heading)
+ SECTION 46
+ SECTION 47
+ SECTION 50
+ SECTION 52
+ SECTION 59
SECTION 51 TO SECTION 74- PROCEDURE
+ SECTION 51
+ SECTION 53
+ SECTION 54

ARREST AND DETENTION

+ SECTION 55

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 + SECTION 56
+ SECTION 57 +ORDER21 RULE 39
+ SECTION 58
+ SECTION 59
ATTACHMENT
+ SECTION 60
+ SECTION 62
+ SECTION 64
+ SECTION 65
DISTRIBUTION OF ASSET
+ SECTION 73
+ SECTION 74

ORDER 21 R1 TO R29- SUBSTANTIVE

+RULE 1
+RULE 2
+RULE 3
+RULE 6
+RULE 9
+RULE 15
+RULE 18
+RULE 19
+RULE 22
+RULE 26
MODE OF EXECUTION
+ORDER 21
+ RULE 30
+ RULE 31
+ RULE 35
+ RULE 32
+ RULE 42
+ RULE 43
+ RULE 44
+ RULE 46
+ RULE 46A

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 + RULE 48
+ RULE 48A
+ RULE 49
+ RULE 51
+ RULE 52
+ RULE 53
+ RULE 54
+ RULE 55
+ RULE 72
+ RULE 88
+ RULE 89
+ RULE 92
+ RULE 105
+ RULE 106
32. FIRST APPEAL PART VII(7)
SECTION 96 (1)
(2) O9 R6 + R13
(3) O36R1+R3+R5+R6+O10R1A+SECTION89+O23R1+R3
+R3B+O1R8
(4)
+ SECTION 97
+ SECTION 98
+ SECTION 99
ORDER 41
+ RULE 1
+RULE 2
+RULE 3 (O6 R17) (O7 R11) (O7 R10)
+RULE 3A (limitation act sec 5)
+RULE 5
+RULE 6 (sec 144)
+RULE 7
+RULE 11
+RULE 17 O9 R2 R3 R5
+RULE 19+Order 41 17(1) + ORDER 9 RULE 4
+RULE 21+Order 41 17(2)

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 + SECTION 107 (b) +O 41 R 23
(c) + O 41 R 25
(d) + O 41 R 27
+RULE 30
+RULE 31
+RULE 32
+RULE 33
+RULE 37

33. SECOND APPEAL

+ SECTION 97
+ ORDER 42 RULE 2
+ SECTION 100A
+ SECTION 101
APPEALS FROM ORDERS
+ SECTION 104
+ ORDER 43
GENEAL PROVISION FOR APPEAL
+ SECTION 107
APPEALS TO THE SUPREME COURT
+ SECTION 109
+ORDER 45
+ARTICLE 132
+ARTICLE 133
+ARTICLE 136
SUPREME COURT
+ARTICLE 124 TO ARTICLE 147
REFERENCE REVIEW AND REVISION
REFERENCE
+ SECTION 113
+ ORDER 46
+ RULE 1
+RULE 5
REVIEW

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 + SECTION 114
+ ORDER 47
+ RULE 1
REVISION
+ SECTION 115
+ ARTICLE 226--- 2 WRITS
34. IMPORTANT SECTIONS
INTERPLEADER SUIT
+ SECTION 88+ (ORDER 35)
+ SECTION 89 + (ORDER 10 RULE 1A + ORDER 23)
+SECTION 90+(ORDER36 RULE 1)
+SECTION 91
+SECTION 92
+SECTION 94 (ORDER 38+ORDER 39+ORDER40)
+SECTION 95
+SECTION 132+SECTION 133+ ORDER 26 RULE 1
+SECTION 135 (SECTION 58)
+SECTION 135 A + (SECTION 58)
+SECTION 144 SECTION 2(2) + ORDER 41 RULE 6
+SECTION 148+ SECTION 149+ SECTION 151
+ SECTION 148 A (CAVEAT)
WILL- MORTGAGE SECTION 81
MARSHALLING SECTION 56
35. GENERAL AMMENTDMENT
+SECTION 153
36. AND TWO MOST IMPORTANT SECTION OF CPC
+SECTION 11 (RES JUDICATA)
+SECTION 10 ( SUB JUDIS)
37. PLAINT IN DUPLICATE
+ORDER 4- RULE 1
+ORDER 7 RULE 11
38. RES JUDICATA-
+SECTION 11
+SECTION 140
+ SECTION 40 EVIDENCE ACT

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  CPC (Code of Civil Procedure 1908) :- It came into force which effect
from 1st January 1909.
 The C P C extends to the whole of India except the state of Nagaland and
the triable area and the state of Jammu and Kashmir. The CPC can be
divided into two parts (1) 158 sections (Substantive law) and the second
parts first schedule containing 51 orders (Procedure law) and rules. The 158
sections deals with the provision of a substantive nature while the first
Schedule (51 order and rule relates to the procedure and the method, manner
and mode in which the jurisdiction may be exercised.
 The body of the CPC containing 158 sections is fundamental (substantive
nature) and cannot be amended except by the legislature. The first schedule
of the CPC containing 51 orders and rules can be amended by high court.
 The sections and the order of the rules must be read together and
harmoniously. But if the rules are inconsistent with the sections, the latter
(sections) will prevail.
 Plaint:- A plaint is a statement of claim by presentation of which a suit is
instituted.
 Plaintiff:- Plaintiff is a person who claims a suit.
 Written statement: - Written statement is a reply of a defendant to the
plaint filled by a plaintiff and who files a written statement is called
defendant.
 Cause of action: - Cause of action is bundle of essential facts which it is
necessary for the plaintiff to prove. A cause of action is the foundation of a
suit. If a plaint does not disclose a cause of action, Plaint will be rejected.
 Issues:- Issue means an important subject of debate or litigation or a point
in question.

 Issues are of three kinds (order XIV Rule 1)

(i) Issues of Fact
(ii) Issues of Law
(iii) Mixed issues of Fact and Law
 Issues arise when a material proposition of fact of law is affirmed by one
party (plaintiff) and denied by the other party (defendant). Material

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 propositions are those propositions of law or facts which a plaintiff must
allege in order to show a right to sue or a defendant must alleged in order to
constitute his defence.

Section 9 (Suit of a civil nature):-

 A civil court (civil judge of Jr-Div or Munsiff + Civil Judge of Sr-Div or
sub-judge or District Judge as the case may be) has jurisdiction to try all suit
of civil nature unless they are barred
 Or the civil court as stated above shall have jurisdiction to try all suit of a
civil nature excepting suits of his their cognizance is specially barred.

 Jurisdiction of a court: -

(1) Territorial or local jurisdiction:- every court has its own local or
territorial limits beyond which it cannot exercise its jurisdiction. A court has
no jurisdiction to try a suit for immovable property situated beyond its local
limits
(2) Pecuniary jurisdiction:- Pecuniary means value of the subject matter for
example junior civil judge(court) will have jurisdiction only over those suit
the amount or value of the subject matter does not exceed the pecuniary
limits of its jurisdiction. Senior civil judge courts has unlimited pecuniary
jurisdiction.
(3) Jurisdiction as to subject matter:- There are certain subject matter for
example testamentary matters(will), subject relating to marriage (divorce
cases, Guardianship- personal Hindu law, insolvency proceeding etc. only
the district judge or family Judge has jurisdiction.
 Suit of civil nature: - A suit in which the right to property (TP Act + contract
Act + Hindu Succession Act or Partition act Tort etc) or to an office (right to
worship or service matter etc.) is contested is a suit of civil nature.
 A suit in which the principle question relates to caste or religion is not a suit
of civil nature but if the principle question in a suit is official nature and the

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 judgment and adjudication involves the determination relating to a caste
question or to religious rights and ceremony, it does not cease to be a suit of
a civil nature and the jurisdiction of a civil court is not barred.

 The followings are suits of a civil nature:

(1) Suits relating to rights of property.

(2) Suits for damages for civil wrong (Tort)
(3) Suits for specific relief (Specific Relief Act)
(4) Suits for restitution of conjugal right ( Sec 9 Hindu M Act)
(5) Suits for dissolution of marriage
(6) Suits against wrongful dismisses from service and for salaries.
 Suits not of civil nature: -
(1) Suits involving caste question.
(2) Suits involving purely religious right or ceremony.
(3) Suits against expulsion from caste.

 Industrial Tribunal or Labour court or Motor accident claims tribunal etc. is

expressly barred from the cognizance of a civil court.
 Formula ::=> Place of suing:- section [15 to 20] CPC:- Civil suits may be of
different types. They may relate to immovable relate to immovable property
(for the recovery of immovable property or for the partition of immovable
property or suits relating to mortgage (section 60 or section 67 or section
100 or TP Act or wrong done to immovable property etc) or movable
property or they may be based on contracts or Torts (compensation or
damages or matrimonial proceeding (Hindu Law or family act)

 Section 15 to 20 of CPC regulate the place of suing or institution of

suits.
 Section 15 refers to the pecuniary jurisdiction of the court value of the
subject matter.
 Hence a decree passed by a court of a higher grade cannot be set aside
of not being without jurisdiction . It is merely an irregularity covered
by section 99 of the CPC and the decree passed by the court is not null-

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  Original filling court according to value of the subject matter is munsef
court [ Junior Civil Judge] + Senior civil judge.
 Mode of valuation- It is the plaintiffs valuation in the plaint that
determines the jurisdiction of the court.

 Section 16 to 18 deals with the suits relating to immovable property

section 16 deals with following five type of suit
1. Suits for recovery of immovable property- Sale +lease +gift [Transfer of
property act]
2. Suits for partition of immovable property [Hindu Law- Chapter partition +
Hindu succession act + Coparcener.
3. Suits for foreclosure , sale. Section 67 of T.P Act or redemption in case of
mortgage- Section 60 of the T.P Act or charge upon immovable property –
Section 100 of T.P Act.
4. Suits for torts to immovable property.

 This above mention suits relating to immovable property must be filled in

the court within the local limit of whose jurisdiction the immovable property
is situated.

 Section 19 applies to suit or compensation for wrong to person or to

movable property [TORT\Defamation\Public nuisance\Private nuisance etc.
A suit for wrong to movable property or person [section 19] may be brought
at the option of the plaintiff at the place where the wrong is committed.
 [Where cause of action arises] or where the defendant reside or carries on
business etc.

 Section 17- Different Jurisdiction.

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  Section 20 is a residuary section and covered all cases not dealt with
by section 15 to 19 i.e. Contract Act,[ Hindu law, Muslim law ] Personal law
etc., Hindu law- Matrimonial suit.

 Under section 20 all suit may be filled at the plaintiff option in any of the
court-
1. Where the cause of action fully or partly arises.
2. Where the defendent reside or carries on the business.
3. Where there are two or more defendant- In any place where any of the
plaintiff resides or carries on his business.

 Objection as to jurisdiction [ TERRITORIAL OR PECUINARY

JURISDICTION]

 Section 21 – objection as to jurisdiction – Territorial or Pecuniary

jurisdiction- It is well settled that objection as to local or territorial
jurisdiction of a court [ place of suing] does not stand on the same footing to
try the case. An objection as to the local jurisdiction of a court can be
waived.

 Objection as to pecuniary jurisdiction- No objection as to over valuation

or under valuation will be allowed by any appellate or revisional court.

 Name of parties-[Order 1+ Order 32 – I f parties are minor or of

unsound mind]
 Order 1 deals with party to a suit it also contain provision for addition,
deletion and substitution of parties, joinder, Non joinder, mis joinder of
parties and an objection as to Non joinder and mis joinder.
Order Rule 8+Rule 9+Section 99+Rule 10+Rule12+Rule 13+Order32
Rule 1+Rule 2+Rule 2A+Rule 3+Rule4+Rule 6+Rule 7

 Order 1 RULE 9 +Rule 10 [Necessary party]- A necessary party is one

against whom the relief is sought and without whom no effective order can
be passed.

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  Proper party- A proper party is one in whose absence an effective order can
be passed but whose presence is necessary for a complete and final decision
on the question involved in the proceeding . In other word in absence of a
necessary party no decree can be passed while in absence of a proper party a
decree can be passed.
 Example- In a suit for partition all sharers are necessary party and
grandsons are proper party to a suit for partition by son against there
father.

 Example- A sub tenant is only a proper party in a suit for possession by the
landlord against his tenant [ here landlord and tenant are necessary party].

 Non-joinder of parties- The parties who are joined , they are neither
necessary nor proper parties, it is a case of mis-joinder of parties.
[contravention of Order 1 Rule 1 and Rule 3]

 Non- joinder of parties- The parties who are joined, they are neither
necessary nor proper parties, it is a case of mis-joinder of parties
(contravention of Order1 Rule 1 and Rule3)

DECREE

 There are following classes of decree.

1) Preliminary decree
2) Final Decree

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 3) Partly preliminary and partly final decree
4) Deemed decree

1) Preliminary decree: where an adjudication decides the rights of the

parties in the suit but does not completely dispose of the suit , it is a
preliminary decree. In other words a preliminary decree is only a stage in
working out the rights of the parties which are to be finally adjudicated
by a final decree, till then the suit continues.
 + section 2(2) explanation. Order 20R12 to R 18 except R 17+ Order 34 R2
to R8 except Rule 6.

2) Partly preliminary and Partly final decree- A decree may be partly

preliminary and partly final i.e in a suit for possession of immovable
property with mense profit .
Where the court-i) Decrees possession of the property and partly final .

ii) Directs enquiry into the mense profit. [partly preliminary].

3) Deemed decree- By a legal fiction certain orders and determination are

deemed to be decree . The rejection of plaint [order 7 Rule 11] and
determination of questions under section 144 [ restitution ] are deemed
decree. Similarly, adjudication under Order 21 [execution suit] Rule 58,
98 and 100 are deemed decree.

 Notes- An order rejecting a plaint does not preclude the plaintiff from
presenting a fresh plaint or the same cause of action.[ Order 7 Rule 13].
 For decree holder- Execution suit section 36 to 74 + Order 21
 For judgment debtor- First appeal, section-96 to 99 + order 41.
 Interim order- Order 26+38+39+40.
 Note- Before passing of decree or judgment- Order 22+23.

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  Execution-SECTION- 36 to 74 + Order 21
 The principal governing execution of decree and order are dealt with section
36 to 74 [substantive law] and Order 21 of the CPC [procedural provision]
Order 21 contain 106 rules longest of all order.

 NOTE-Execution means the process for enforcing or giving effect of the

judgment of the court. In other words, execution is the enforcement of
decree and order by the process of the court. So as to enable the decree
holder to release the fruits of the decree. The execution is complete when the
decree holder gets money or other thing awarded to him by judgment, decree
or order.
 LIMITATION PERIOD FOR EXECUTION- Article 136 of the
limitation act is 12 year and if period of limitation mentioned in article 136
[12 years] expires than only judicial remedies is extinguished. But rights of
decree holder does not extinguished an executing court cannot go behind the
decree. It has no power to vary or modify the terms. It has no power to
question its legality or correctness, therefore no inquiry into its regularity or
correctness can be permitted in such a proceeding.
 NOTE- Section 46- Precepts- the object of attachment by precepts is to
enable the decree holder to obtain an interim attachment of the property of
the judgment debtor situated within the jurisdiction of another court. Where
it is apprehended that the decree holder may be deprived of the fruits of the
decree. Thus the precepts seeks to prevent alienation of property of the
judgment debtor not situated within the jurisdiction of the court which
passed the decree so that interest of the decree holder is protected.
 Precepts after decree means you are decree holder this is in execution stage.

 Order21-Rule46+Rule46A= Order21-Rule46+Rule46A= Garnishee means a

judgment debtor’s debtor-or debtor of judgment debtor. He is a person who
is liable to pay a debt to a judgement debtor or to deliver any movable
property to him. A garnishee order is an order passed by a court ordering a
garnishee not to pay money to the judgment debtor because the later is
indebted to the garnishee.

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  INTERIM ORDER- Interim order means temporarily or for the time being
which is not final. Interim or interlocutory orders are those orders passed by
a court during the pendency of a suit which do not determine finally the
substantive rights and liabilities of the parties in respect of the subject matter
of the suit.
 Such interim orders may be passed under orders-

(1) Order 26 (section 75to78)

(2) Order 38

(3) Order 39+ Interlocutory orders

(4) Order 40

 Section 10- Res Sub-judice- The rule of section 10 (Res sub-judice or stay
of suit) applies to trial of a suit and not the institution thereof. It does not
preclude a court from passing interim orders such as grant of injunctions or
stay appointment of receiver etc.
 It is to be remembered that thee section does not bar the institution of a suit
but only bar a trial, if certain conditions are fulfilled. The subsequent suit,
therefore, cannot be dismissed by a court but is required to be stayed.
 Note- The section 10 (Res Sub-judice) is a rule of procedure which can be
waived by a party. Hence if the parties waived their right and expressly
asked the court to proceed with the subsequent suit, they cannot afterwards
challenge the validity of the subsequent proceeding.
 Section 11-Res Judicata- It enacts that once a matter is finally decided by a
competent court no party can be permitted to reopen it in a subsequent
litigation. In the absence of such a rule their will be no end to litigation and
the parties would be put to constant trouble, harassment and expenses.

 'Nemo Debet Bis Vexari Pro Una Et Eadem Causa'- Doctrine of Res
Judicata- No Men should be vexed twice for the same cause.

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21
  Note:The principal of Res Judicata is based on justice, equity and good
conscience.
 Note:The rule of Res Judicata applies to all judicial proceedings whether
civil or criminal.
 Note:The rule of Res Judicata applies also to a petition filed under Article 3
of the Constitution and if a petition filled by a petitioner in the High court
under Article 226 of the constitution it dismissed on merit such decision
would operate as res judicata so as to bar a petition in the Supreme Court
under Article 32 of the Constitution, (exception-Habeas corpus).
 Res Judicata and Res Subjudice- Distinction-
 The doctrine of Res judicata differs from Res Sub Judice in two aspect- That
is to say
(1) Res Judicata applies to a matter adjudicated upon (Heard and finally
decided and not judgment passed under [Order 23 Rule-36 + Order-36
+Section 19 (friendly Suit) Whereas Res Subjudice applies to a matter
pending trial.
2) Res Judicata bars the trial of a suit which has been decided in a former
suit whereas Res Subjudice bars trial of a suit which is pending decision in a
previously instituted suit.

 Difference between Res Judicata and Estoppel-

1. Res Judicata results from a decision of the court where as Estoppel results
from the act of parties.
2. The rule of Res judicata is based on public policy that is to say that their
should be an end to litigation. Whereas estoppel is based on the doctrine of
equity.
3. Res judicata bars multiplicity of the suits whereas estoppel prevents
multiplicity or representation.
4. Res judicata ousts the jurisdiction of a court to try a case whereas estoppel
is only a rule of evidence and shuts the mouth of a party.
5. Res judicata prohibits a man averring the same thing twice in successive
litigation. While estoppel prevents him from saying one thing at one time
and the opposite at another.

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22
Section-11-
 Res Judicata- is mandatory the plea of res judicata is a plea of law.
 Condition-To constitute a matter as res judicata under section11, the
following conditions must be satisfied-
1. The matter directly and substantially in issue in the subsequent suit.
NOTE-Directly means directly and substantially means essentially that is
to say the principal issue was the same. (explanation 3+ explaination4-
constructive res judicata)
2. The former suit must have been a suit between the same parties or
between parties under whom any of them claim.
3. Such parties must have been litigating under the same title in the
former suit.
NOTE-Parties litigating under the same title mean that the relief or
demand should be of the same quality in the second suit as was in the
first suit. It has nothing to do with the cause of action on which he sues or
is sued.
4. The court which decided the former suit must be a court competent to
try the subsequent suit. (explanation viii + explanation ii).
 Court of limited jurisdiction (explanation viii)- A decision on a
issue heard and finally decided by a court of limited jurisdiction
will also operate as res judicata in a subsequent suit irrespective of
the fact that such court of limited jurisdiction was not competent
to try the subsequent suit. For example- Court of limited
jurisdiction are courts other than ordinary civil courts such as
revenue court, land acquisition court, insolvency courts etc.
 A court of limited pecuniary jurisdiction cannot be same to be a
court of limited jurisdiction.

5. Matter directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the court in the former suit.

 NOTE- Decision on merit- In order that a matter may e set to have been
heard and finally decided, the decision in the former suit must have been on
merit.

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  Not applicable under order 23 Rule 3+ Section 90 + Order 36 (friendly suit).
 NOTE- Res Judicata shall be applicable between co-defendants, co-plaintiffs
but res judicata does not apply against pro-forma defendants.

Pro-forma defendant - A defendant to a suit against whom no relief is

claimed is called a pro-forma defendant. A person may be added as a pro-forma
defendant in a suit because his presence is necessary for a complete and final
decision of the question involved in the suit. In such a case since no relief is sought
against him a finding does not operate as res judicata in a subsequent suit against
him.

 NOTE- Industrial Adjudication (Res judicata applies)

 NOTE- PIL (Public interest litigation) Res judicata applies.
 Criminal proceeding- Res Judicata applies Section-300 Cr.P.C
 Writ petition- If the petition filled under Article 32 of the constitution is
dismissed by the court, subsequent petition is barred. Similarly if a writ
petition filled by a party under article 226 is consider in merits as a contested
and its dismissed.
 Exceptions- Habeas corpus- The doctrine of res judicata is not applicable to
cases of Habeas corpus petition.
 Interlocutory order- The doctrine of res-judicata applies to different stages of
the same suit or proceeding.

Res-judicata not applicable-

1. Compromise decree- (order 23 + Rule 3).

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  A compromise decree is not a decision by a court, hence the doctrine of res
judicata does not apply to a decree. However such a decree precludes a
party from challenging it by a rule of estoppels (order 23 + Rule 3A)
 Withdrawal of a suit does not operate as res judicata in filling a subsequent
suit for the same cause of action (order 23 +Rule 1)

2. Taxation Matters-

 The doctrine of res judicata has no application on such cases.

SUBSTANTIAL QUESTION OF LAW.

 The following are questions/Substantial question of law.
1) Recording of a finding (judgment) without any evidence or record.
2) Non-consideration of relevant or admissible evidence.
3) Taking into consideration irrelevant or inadmissible evidence.
4) Misconstruction of evidence on document.
5) Interpretation or construction of material documents.
6) A question of admissibility of evidence.
7) Placing onus of proof on a wrong party.
8) Disposal of appeal before disposing an application for additional evidence
under Order 41, Rule 27.

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 LETTERS PATENT APPEAL (SECTION 100A)

 Section 100 A has been inserted to provide that there should be no further
appeal against the decision of a single judge in a second appeal.
 Under the letters patent, an appeal lies in certain cases against the decision
of a single judge in a second appeal. Such appeal amounts to a third appeal.
For the purpose of minimizing delay in the finality of
adjudication(judgment), it is not desirable to allow more than two appeals.

APPEAL TO SUPREME COURT

 NOTE :-UNDER Article 132 to Article 135 can be entertained by the
supreme court only against the final order of the high court while
under Article 136(SLP)-Special leave petition the supreme court can
grant special leave for appeal from any court on tribunal that is to say
from any subordinate court below the high court even without
following the usual procedure of filling appeal in the High Court or
even where the law applicable to the dispute does not make provision
for such an appeal.
 NOTE:- Under article 132 to 134 an appeal can lie in the Supreme
court only against any judgment, decree, sentence or order of any
court or tribunal but under article 136 an appeal may lie against any
case or matter.
 Note:-Article 136: Under Article 136 the supreme court is authorized
to grant in its discretion special leave
 Note:- The appellate jurisdiction of the supreme can be divided into
four categories.
1) Appeal in constitutional matters Article 132- An appeal shall lie to the
Supreme court against the high court whether in civil, criminal or other
proceedings if the high court satisfies under Article 134A that the case
involves a substantive question of law as to the interpretation of the
constitution.

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 2) Appeal in Civil cases Article 133-Article 133 provides that an appeal
shall lie to the Supreme court from any judgment or decree against high
court if the high court certifies under Article 134A grounds same as
mentioned in 109 CPC.
The pecuniary value of the subject matter of the suit is of no
consideration at all. There may be cases where the point in dispute cannot
be measured in terms of money that is to say where the case is one of the
great public or private importance.
3) Appeal in criminal cases Article 134- According to article 134 an appeal
lie to the Supreme court from any judgment or sentence in a criminal
proceedings of a High court in the following two ways-
a) Without a certificate of the high court.
b) With the certificate of a high court under article 134-A

Without a certificate +Crpc section 379

 An appeal lies to the supreme court without a certificate of the high court, if
the High court
a) Has on appeal has reversed an order of acquittal of an accused person and
sentenced him to death or imprisonment for life or imprisonment for a
period of not less than 10 years.
OR
b) Has withdrawn for trial before itself any case from any court subordinate to
its authority and has in such trial convicted the accused person and
sentenced him to death.

SET OFF ( ORDER 6 RULE 6) / ( FOR MONEY

SUIT, RECOVERY OF MONEY)
 NOTE: where in a suit for recovery of money by the plaintiff , the defendant
finds that he has also a claim of some amount against the plaintiff he can
claim a set- off in respect of the said amount. The right of a defendant to
claim set- off has been mentioned under Rule 6 where there are mutual debt
between the plaintiff and defendant, one debt may be settled against the
other .Set-off means acclaim against another.

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 CONDITIONS FOR SET- OFF
 A defendant may claim a set-off, if the following conditions are satisfied
1) The 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 defendants from the plaintiff.
5) It must not exceed the pecuniary jurisdiction of the court in which the
suit is brought.

EFFECT OF SET OFF

 When a defendant pleads set off, he is put in the position of a plaintiff as
regards the amount claimed by him. There are 2 suits-
 One by the plaintiff against the defendant and the other by the defendant
against the plaintiff and they are tried together.
 A separate suit number is not given to a set-off. Rule 6 deals with legal set
off only.
For example
1) When A sues B to recover 50000 Rupees under a contract. B can
claim set off toward damage sustained by him due to breach of the
contract by A.
2) In a suit by a servant against his master for salary the master can claim
set off for loss sustained by him because of negligence on his conduct
by the servant, since such claim arises out of the some relationship.

DISTINCTION BETWEEN LEGAL AND ACUITABLE SET-OFF

1) Legal set off must be for an ascertain of sum of money. Equitable

set off may be for an un ascertain sum of money.
2) Legal set-off can be claimed as right and the court is bound to
entertain and adjudicate upon it. On the other hand, equitable set
off cannot be claimed as of right and the court has discretion to
refuse to adjudication upon it.
3) In legal set-off it is necessary that the amount claimed must be
legally recoverable must not be time barred .

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  On the other hand, a claim by way of equitable set-off may be
allowed even if it is time barred when there is a fiduciary
relationship between the parties

COUNTER CLAIM ( RULE 6A)

 A claim made by the defendant in a suit against the plaintiff.

The defendant in a suit may in addition to his right to plead a staff,
set up a counter claim.

EFFECT

 Such counter claim has the effect of a cross suit and the court
can pronounce a final judgment both on the original claim and
the counter claim.
 The counter of the defendant will be treated as a plaint and the
plaintiff has a right to file a written statement in answer to the
counter claim of the defendant.

DISTINCTION BETWEEN SET-OFF AND COUNTER CLAIM.

1) In the case of a legal set off, the amount must be recoverable at

the date of the suit, while in the case of counter claim, the
amount must be recoverable at the date of the written statement.
2) When the defendant demand in a plaintiff suit an amount
below or up to the suit claimed, it is set-off but when it is for
larger amount, the claim for excess amount is a counter claim.

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