Civil Procedure Code, 1908

1. Cause of action

It means the necessary conditions for the maintenance of the suit. It means every fact which
would be necessary for the plaintiff to prove in order to support his right, to the judgment of
the court. It does not comprise every piece of evidence, but it is a bundle of essential
facts, which it is necessary for the plaintiff to prove before he can succeed in the suit.

2. Parties to the Suit

Order 1 deals with subject of parties to suits. One of the essentials of suit is
parties and every suit must have two parties: Plaintiff and the Defendant.

a) Joinder of Plaintiffs:
Where the interests of two plaintiffs are identical and
not antagonistic they can sue jointly. All the persons having a common cause of
action are entitled to join as plaintiffs but separate cause of action in respect of
several plaintiffs could not be joined.

b) Joinder of Defendants:
All persons may be joined in one suit as defendants where

i) any right to relief in respect of, or arising out of, the same act or transaction or series of acts
or transactions is alleged to exist against such persons, whether jointly, severally or in the
alternative; and
ii) if separate suits were brought against such persons, any common question of law or fact
would arise.

c) Necessary and Proper parties:

A necessary party is one whose presence is indispensable to the constitution of the suit, against
whom the relief is sought and without whom no effective order can be passed.

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 words, in absence of a necessary party no decree can be passed while in

the absence of proper party a decree can be passed so far as it relates to the
parties before the court. His presence, however, enables the court to adjudicate more
‘effectually and completely’.

d) Non-joinder of Parties: Where a person who is a necessary or proper party

to the suit has not been joined as a party to the suit.

e) Misjoinder of Parties: If two or more persons are joined as plaintiff or

defendants only in one suit in contravention of Order 1, Rule 1 and 3
respectively and they are neither necessary nor proper parties.

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3. Content of Plaint (Order VII Rule 1)

a) Name of the Court in which suit is bought.

b) Name, description, and place of residence of the plaintiff
c) Name description, and place of residence of defendant as far as they can be
ascertained.
d) where plaintiff or defendant is a minor or a person of unsound mind, a
statement to that effect.
e) the facts constituting the cause of action and when it arose.
f) the facts that the court has the jurisdiction
g) the relief which the plaintiff claims.
h) where the plaintiff has allowed a set-off or relinquished a portion of his
claim, the amount so allowed or relinquished
i) Statement of value of the subject matter of the suit for the purpose of
jurisdiction and amount of court fees for the claim.

4. Jurisdiction

a) Section 9 of the Civil Procedure Court, 1908 (CPC) provides that the Courts shall have
jurisdiction to try all suits of civil nature excepting suits of which cognizance is expressly or
impliedly barred.

b) There are three types of jurisdictions: subject matter, territorial and pecuniary jurisdiction.

c) Section 16- 20 of CPC deals with territorial jurisdiction.

Territorial Jurisdiction

Here are some of the rules for territorial jurisdiction in the CPC:

Suits involving immovable property

A suit can be filed in the court where the property is located, or in the court where the defendant
lives, works, or does business.

Suits involving movable property

A suit can be filed in the court where the property is located, or in the court where the defendant
lives, works, or does business.

Suits involving other claims

A suit can be filed in the court where the defendant lives, works, or does business, or in the
court where the cause of action arose.

Cause of action
A court has territorial jurisdiction if the cause of action arose within its local limits. Factors to
consider include the place of work, part cause of action, and payments made to the respondent's
bank account.

Territorial jurisdiction is determined by the governing laws and regulations of the area.

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Every court is competent to adjudicate the matters/issues falling under the local limits of its
jurisdiction. For example, the District Judge has to exercise the jurisdiction within his district
and not outside it unless barred by pecuniary jurisdiction. And the High Court has jurisdiction
over the issues relating to the concerned state.

For the purpose of invoking the jurisdiction of the Court only because two causes-of-action
joined in terms of the provisions of the Code of Civil Procedure, 1908, the same would not
mean that thereby the jurisdiction can be conferred upon a court which had jurisdiction to try
only the suit in respect of one cause-of-action and not the other. Recourse to the additional
forum, however, may be taken if both the causes of action arise within the jurisdiction of the
court which otherwise had the necessary jurisdiction to decide all the issues;

Pecuniary jurisdiction.--

The Code provides that a court will have jurisdiction only over those suits, the amount
or value of the subject matter of which does not exceeds the limit of the jurisdiction.
Thus, a Presidency Small Causes Court cannot entertain a suit in which the amount
claimed exceeds Rs. 1000.

jurisdiction as to subject-matter.--

A court cannot entertain and adjudicate an issue which does not fall within its
competency as to competency over the matter. Thus, the Presidency Small Causes
Court has not jurisdiction to try suit, for specific performance of a contract, partition of
immovable property for closure or redemption of a mortgage, etc.

Similarly, in respect of testamentary matters, divorce cases, probate proceedings, the

Court of District Judge has exclusive jurisdiction.

Original and appellate jurisdiction.--

In the exercise of original jurisdiction, a court entertains and decides suits and in its
appellates jurisdiction, it entertains and decides appeals. District Courts and High Court
have original as well as appellate jurisdiction.

5. Res sub judice (Sec 10)

The Phrase Res Sub Judice is latin maxim which means ‘under judgment’.
The rule of the sub judice is based on the public policy which prohibits the plaintiff to file two
parallel cases on the same subject matter and restricts the chances of having two contradictory
judgments by the two courts.
The purpose of the doctrine is to prevent a multiplicity of the proceedings and to refrain two
conflicting decisions.

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The doctrine bars the parallel trial of the suit where the matter is pending to adjudicate in the
former suit. But it does not restrict in filling the subsequent suit. Under Sec 10 of CPC, a court
cannot 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 claim, litigating under the same title.
Conditions
a) Same Parties
b) Matter in the issue must be same
c) Suit must be pending
d) Title must be same
e) The court should be competent

6. Res-judicata (Sec 11)

Res judicata technically means that a matter in issue which has already been tried by competent
court, then trial between the same parties in-respect of the same matter shall not be allowed.
It emphasis that a subject matter of the suit which has already been decided, is deemed to be
decided forever, and cannot be reopened by the same parties. The rule of Res judicata is based
upon the principle that no person should be vexed twice for the same cause of action, and the
interest of the state behind this principle is that, there should be an end to litigation. According
to Sec 11, No court shall try any suit or issue in which the matter directly and substantially 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.

Conditions
a) there must be two suits, one former suit and another subsequent Suit.
b) the matter directly, substantially in issue, must be the same in both the suits.
c) the party or parties to the suit must be same.
d) there should be two suits as to one and the same subject matter.
e) Parties in both the suits must have litigated under the same title.

f) the suits must have been heard and finally decided by the court.
g) the former suit must have been finally decided by the competent court.
h) the court which decided the former suit must be competent to try the
subsequent suit or suit in which such issue is subsequently raised.

7. ex parte decree

In the Code of Civil Procedure (CPC), an ex parte procedure is when a court passes a decree
against a defendant who is not present in court:

When an ex parte decree is passed

A court may pass an ex parte decree if the defendant does not appear in court, even after
being served with summons. The court may also pass an ex parte decree if the defendant fails
to submit a written statement within the time period specified in Order 8, Rule 1 of the CPC.

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 How to set aside an ex parte decree
A defendant can apply to set aside an ex parte decree if they can show that they were
prevented from appearing in court or that the summons were not served properly. The
application must be made within 30 days of the date when the decision is [Link]
applicant must provide supporting evidence to substantiate their claim.
Other options for a defendant
A defendant can also file an appeal against the ex parte decree. They can also file a review
petition if they are aggrieved by the decree but do not file an appeal.

8. Affidavit

Affidavit. It is considered as a declaration of facts, made in writing sworn before a person

having authority to administer oath. Every affidavit should be drawn up in the first person and
should contain only facts and not inferences. Order XIX of CPC deals with the provision
relating to affidavits.

§ It is considered as a declaration of facts, made in writing sworn before a person

having authority to administer oath.
§ Every affidavit should be drawn up in the first person and should contain only facts and not
inferences.
§ Order XIX of CPC deals with the provision relating to affidavits.
Essentials of Affidavit
§ The essential elements of an affidavit are:
o It must be a declaration made by a person.
o It must relate to facts.
o It must be in writing.
o It must be in the first person.
o Must be sworn or affirmed before a Magistrate or any other authorized officer.

Verification of Affidavit
An affidavit has to be validated. The purpose of verification is to hold the deponent accountable
for the allegations made and to determine whether the deponent's claims are true and authentic.
According to Section 3 of The Evidence Act, affidavits are considered "evidence." The
Supreme Court, however, held that an affidavit can only be used as evidence if the Court so
orders for adequate reasons (Khandesh Spg & Wvg Mills CO. Ltd. Vs Rashtriya Girni Kamgar
Sangh). Therefore, without a particular court order, an affidavit cannot typically be used as
evidence.

9. Legal disability

A legal disability is a condition that prevents a person from filing a lawsuit or taking legal
action within the standard time limit. The Limitation Act of 1963 protects the rights of people
who are unable to act within the specified time frame due to their vulnerable circumstances.

Here are some provisions of the Limitation Act of 1963 that relate to legal disabilities:
Section 6

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A person who is a minor, insane, or an idiot can file a suit or make an application after the
disability ends.
Multiple disabilities
If a person has multiple disabilities, they can file a suit or make an application after both
disabilities end.
Disability until death
If a person's disability continues until their death, their legal representative can file a suit or
make an application after their death.
Disability ends before deadline
If a person's disability ends before the deadline, but after the person dies, their legal
representative can file a suit or make an application within the same timeframe as if the
person were still alive.

To avail of the extension of time, the disabled individual or their legal representative
must: invoke the relevant provisions and provide evidence of the disability.

Once the disability ends, the normal limitation period starts running again.

10. Section 89

Section 89 of the Code of Civil Procedure (CPC) of India allows courts to refer disputes to
alternative dispute resolution (ADR) mechanisms outside of [Link] purpose of this section
is to promote amicable resolution between parties without court intervention. Some ADRs
include Arbitration, Conciliation, Judicial settlement, incl settlement through Lok Adalat &
Mediation
The CPC believes that ADR can avoid multiplicity of litigation, avoid waste of time and
money, reduce delays, reduce the drawbacks of the conventional system, such as its lack of
judges and its high caseload

Section 89 was inserted into the CPC by the Code of Civil Procedure (Amendment) Act, 1999,
effective July 1, 2002.

11. Appeal

Appeal has not been defined in Civil Procedure Code. It is, in fact, that complaint, which is
made to some superior court against decision of subordinate court. Basic object of appeal is to
test soundness of
decision of lower court. Appeal may be filed against original decree, or against decree passed
in appeal.

b) Relevant Provisions
Following are the relevant Provisions regarding appeal and second appeal
(i) Section 96, 97, 98, 99, of CPC for 1st Appeal
(ii) Section 100, 101, 102, 103 of CPC for 2nd appeal

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(iii) Cross Reference
(a) Section 17, 18 of West Pakistan Civil court ordinance II of 1962
(b) Order 41, 42 of CPC

c) Meaning of Appeal
“Appeal means removal of a cause from inferior to a superior court for the purpose of a testing
soundness of decision of an inferior court”.

d) Definition of Appeal
“Judicial examination of the decision by a higher court of the decision of the inferior court”.

e) Right of Appeal
Every person has given right of appeal against decree. However, right of appeal is not an
inherent [Link] it can only be availed where it is expressly granted by law. Appeal lies
against a decree and not against a judgment.

f) Nature of Right of Appeal

Rights of appeal are substantive right and they are not mere matters of procedure. Right of
appeal is governed by the law prevailing at the date of the suit and not by law that prevails at
the date for the decision or at the date of filling of the appeal.

12. Summons

A summons in the Code of Civil Procedure (CPC) is an official notice from the court to a
person to attend court at a specific time and place. The purpose of a summons is to inform the
defendant of the suit and to require their appearance in court.
Summons are governed by Sections 27 and 28 and Order V of the CPC and include:
• The purpose of the summons
• The date the defendant is required to appear in court
• A copy of the plaint filed by the plaintiff
• The signature of the judge or their appointed officer
• The seal of the court
• Any other directions deemed necessary by the court

The court sends the summons through a court officer or another person authorized by the
court. The court must also determine whether the summons is for the final disposal of the suit
or only for the settlement of issues
14. Suit and Essentials of a Suit

According to the CPC, 1908, the word "suit" is not defined. It is generally accepted that it refers
to a process that begins when a civil court is presented with a complaint. The relief sought is
specifically stated in a plaint, which is a written statement of a cause of action. A suit, according
to Black's Law Dictionary, is a legal action brought by one or more parties against another.

A suit is a proceeding by which an individual pursues that remedy which the law affords. It is
a civil proceeding instituted by the presentation of a plaint. Though the term suit has not been
defined under the Civil Procedure Code, 1908 (CPC). According to Section 2(1) of The
Limitation Act, 1963, Suit does not include an appeal or an application.

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Essentials of Suit

Parties

The plaintiff who files the lawsuit and the defendant against whom the plaintiff makes the
claim must be at least two opposing parties in order for the claim to be heard. On either side,
there are no numerical limitations. The filing of a complaint initiates every lawsuit. Plaintiffs,
their representatives, authorized agents, or attorneys acting on their behalf must file a
complaint.

Subject Matter

To grant the plaintiff the requested relief, there must be a subject matter, or a group of facts,
that must be established. The plan of action is part of it. For the plaintiff to successfully file his
complaint and receive the remedy requested in the complaint, the subject matter may be either
moveable or immovable property, and the plaintiff must provide data regarding the same in the
complaint.

Cause of Action

The list of grounds upon which a court case is brought is known as a cause of action. A lawsuit
might be started based on a specific collection of facts or accusations. All information about
rights and their infringement is included. A cause of action is required by Order II, Rule 2 of
the CPC, in order to start a lawsuit, and the complaint must include the cause of action.

Relief
Legal redress for wrong is called relief. Every lawsuit must, to the greatest extent possible, be
structured in accordance with Rule 1 of Order 2 to provide a basis for a final determination of
the issues in dispute and to halt further litigation pertaining to them.

15. Pleading under CPC

Pleading under the Code of Civil Procedure (CPC), 1908, refers to the formal written
statements submitted by the parties involved in a civil suit. These documents lay out the
respective claims and defences of the plaintiff and the defendant, setting the groundwork for
the legal proceedings. The primary objective of pleadings is to clearly outline the issues in
dispute, enabling the court to understand the case and facilitating a fair and efficient trial.

The CPC defines two main types of pleadings: the plaint and the written statement. The plaint
is the document filed by the plaintiff, detailing the facts of the case, the legal basis for the claim
and the relief sought. The written statement is the response submitted by the defendant,
addressing the allegations made in the plaint and presenting any defences.

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Pleadings must adhere to specific rules, such as stating only material facts, avoiding legal
arguments and excluding evidence. This ensures that the focus remains on the facts in dispute,
allowing the court to apply the relevant law during the trial. Properly crafted pleadings help
streamline the judicial process, minimise misunderstandings and ensure that both parties have
a fair opportunity to present their case.

Essentials Rules of Pleadings

Pleading Facts, Not Law:

This principle was first emphasised in the case of Kedar Lal v. Hari Lal, where it was held that
parties must state the facts upon which they base their claims. The court applies the law to these
facts to render a judgement. Parties should not assert or apply laws in their pleadings.

Material Facts Only:

Only material facts should be included in pleadings. Immaterial facts are not considered.
In Union of India v. Sita Ram, the court clarified that material facts include all facts upon which
the plaintiff claims damages or rights or upon which the defendant bases his defence.

Exclusion of Evidence:
Pleadings should contain statements of material facts but not the evidence by which those facts
are to be proved. There are two types of facts:

Facts Probanda: Facts that need to be proved (material facts).

Facts Probantia: Facts by which a case is to be proved (evidence). Only facts probanda should
be included in pleadings.

Conciseness:
Facts should be presented concisely, without omitting important details. This ensures brevity
and clarity without sacrificing essential information.

16. Written Statement, Counter Claim and Set-off

The Code of Civil Procedure (CPC) of 1908 covers written statements, counter-claims, and
set-offs under Order VIII. Here are some details about these terms:
Written statement
A reply to the plaintiff's plaint, which must be filed within 30 days of the plaint being
filed. The defendant must raise all grounds of defense in the written statement, including
matters that show the suit is not maintainable or that the transaction is void or voidable.
Set-off
A statutory defense that can be pleaded in the written statement. It's a shield for the defendant
and can't be used as an offensive measure. Set-off can only be used in suits for recovery of
money, and the claim must be for a mutual debt.
Counter-claim
A weapon of offense that allows the defendant to assert a claim against the plaintiff, similar
to an independent [Link] defendant can exceed the plaintiff's claim with a counter claim.
A set-off must arise out of the same transaction, but a counter-claim doesn't need to.

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Set-offs are classified into legal and equitable set-offs, but counter-claims aren't.

17. Representative Suit

A representative suit is one that is filed by or against one or more people on behalf of
themselves and others who have a vested interest in the outcome of the suit. Representative
suit is based on public policy. It saves time, money, labour and prevents multiplicity of
suits. Order 1 Rule 8 of the Civil Procedure Code deals with representative [Link] the
application of Order 1 Rule 8 of the Civil Procedure Code following elements must be fulfilled:

I. There Should Be Several Parties

The first condition for a representative suit is several parties. The word “several parties” imply
a group of persons and does not mean innumerable persons.

II. They Must Have the Same Interest

III. Permission or Direction by the Court Is Necessary

The suit does not become a representative suit until the court grants the permission or the
directions have been given by the court. The proper course is that the permission of the court
must be obtained before the suit is filled.

IV. Notice Must Be Given

All interested persons who would be bound by the decree shall be given notice. Notice may be
in person or public.

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