13.09.

2023:

Order V: Issue and service of Summons

- Laws related to summons are under Order V, Order XI, Order XVI and Order XVII + Section 27 to
Section 32. [imp – time limit and substituted summon – study as short note]
- Delivery of summon to be done within 30 days, if not, it should be delivered within 90 days.
- Why not being able to deliver within 30 days? => Defendant avoiding receiving summon from
plaintiff or process server or plaintiff not given sufficient address of defendant.
- Service of summons as to modes:
1. Court
2. Plaintiff services
3. Other facilities by particular court
- If still the summon is not being delivered in proper time – amendment of substituted summon (Rule
20) – go to localities’ head and beat drums and read out the entire summon in front of home and
centre location of locality and paste it. If this is done, it will be assumed as proper service of
summons. (an ex parte order after this would also be valid)

Order VI: Pleading

- Pleading includes both plaint and written statements
- Plaintiff’s pleading is otherwise known as a plaint that is a statement of claim in which the plaintiff
sets out the cause of action with all necessary particulars.
- Defendant’s pleading otherwise known as WS where the defendant brings out all his defence where
specifically the defendant deals with every material fact alleged by the plaintiff in the plaint and also
states any new facts which are in his favour adding such legal objections as he wishes to take to the
claim.
- General rules for pleading:
1. It should state facts and not law
2. Facts stated must be material facts
3. Should not state evidence
4. It should be in concise form
- Order VIII – set-up, counter claim by the defendant (in subsequent proceedings, the defendant may
file a WS regarding the same)
- Rule 1
- Rule 2 is very important: only plead facts, not law.
- Rule 3 (for knowledge, not examination)
- Rule 4: particulars to be given where necessary; every claim has to be in details and every defence
taken in WS should be specified in details as well.
- Affidavit + verification needed after all plaints
- Rule 16, 17, 18**:
Rule 16 – striking out pleadings
Court can strike out any unnecessary, scandalous, delaying, prejudiced, abuse of the process of court
matter in pleading. Or else difficulty in collecting evidence may exist.
 - Amendment of pleading:
Order VI, rule 17 and 18 talk about it. in the first case, amendment of pleading is allowed in:
1. Determination of real question and controversy
2. No injustice to the other side
- Amendment when refused:
1. Not necessary for determination of the real question and controversy between the parties
2. Change in subject matter i.e. where it introduces a totally different, new and inconsistent case
or changes the fundamental character of the suit.
3. Where the effect of the proposed amendment is to take away from the other side a legal right
accrued in his favour.
4. Where the application for amendment is not made in good faith.
5. The application for amendment will create unnecessary delay in fair trial of the case.
6. If the application of amendment is accepted by the court then it has to take place within 14
days or as specified by court’s order and no amendment will be accepted after the expiry of
the time limit unless the court extends the time or condones the delay.
- Kinds of amendment accepted by court:
1. Amendment as to form
2. Amendment as to substance
3. Amendment as to relief
4. Amendment as to parties to the suit
- Addition in issue (rent of X year as well being asked) – amendment can be accepted or not?
Immediately before delivery of judgement the court may not take it using its discretion; other than
that it can be accepted.

Order VII: Plaint

- Rule 1: cause titled (jurisdiction and limitation vv important)
- Rule 2: money suits shall include ‘approx amount’ – to determine jurisdiction
- *[Rule 2A]: where interest is sought, the details of how the interest is made out should be written ()
- Rule 3: where subject matter = immovable property; eg: property division between 4 brothers
seeking partition of one property out of 2 properties, the details of immovable property wrt area,
size, location, identification should be given.
- Rule 4: representative suit –
Filing of suit by minor can be done through next-friend – should be mentioned and specified
immediately after cause title
- Rule 5: liabilities of defendant
- Rule 6:
- Rule 10: return of plaint
Where at any stage of the suit the court on its own motion or from other sources finds that due to
bonafide mistake of the plaintiff the suit was filed before him but it has no territorial jurisdiction or
pecuniary jurisdiction or subject-matter jurisdiction, it will return the plaint for presentation before
proper court.
 If the return of plaint is made after service of summon to defendant then the judge shall make an
endorsement stating the date of presentation, returning of plaint, stating the purpose of return, name
of the parties and the time within which the suit to be filed before proper court. [imp – the order of
returning a plaint is appealable]

LAST MODULE ( LIMITATION ACT)

Section 2: Definition (f) and (j)

Sec. 2(f)
““easement” includes a right not arising from contract, by which one person is entitled to remove and
appropriate for his own profit any part of the soil belonging to another or anything growing in, or
attached to, or subsisting upon, the land of another;”
Easement - continuing using of land without any disturbance from the owner then we can claim this right,
something that is not ours but we have been using it for a very long time.

Can you sell the easementary right to someone else after acquiring it?
Easement is an incident of ownership, it is a right attached with the property and has no independent
existence. Hence it cannot be transferred. It says that an interest in property restricted in its enjoyment to
the owner personally cannot be transferred by him.

Example - road between NLUO and ravenshaw has been acquired by using it for a very long time
When we have acquired a easementary right through NLUO so whoever NLUO goes will also be
acquiring easementary right along with NLUO
Easemeantry right will never be sell alone it will be sold along with the dominant heritage
And if we are selling the dominant heritage the easementary right will also be sold to that purchase (in this
case the dominant heritage is NLUO)

Period of Limitation - numbers given in the schedule, they are fixed numbers
Prescribed period - the way we calculate the days left with us to file a suit after all exclusion and
reductions (given in sec 12 - 24)

Suit related to immovable property - 3 years is the period of limitation ( assume)

Cause of action in reality is - 2000
So we exclude the first day of cause of action
When came to Knowledge - 2005 effect of fraud will start here the day it come to your knowledge
(prescribed period is when we calculate the exact in hand number of days left with us to file the suit)

BARS OF LIMITATION
 1. Even if the person has written that this suit is under limitation period the court has the duty to look
whether it falls within the period of limitation or not

(2) - a suit has to be instituted where the jurisdiction is ( if the suit is rejected because of filing the
suit in an incompetent court and within the period if limitation gets over to file a fresh new suit in
different court ( that time used in wrong court is wasted) then you will not have any remedy)

Application to return the suit to another court ( but if the suit is returned to another competent court the
time frame of the proceedings is saved you don’t have to institute a new suit and if your limitation period
gets over within that time then also you are safe) second court will not look at the limitation

Pauper suit - poor persons filing a suit do not have to pay any court fees
Ist jan - suit to file as pauper
6 months - court think
If application rejected and limitation gets over
Fresh prescribed period will come excluding 6 months

If accepted
Application day and cause of action will be calculated

Sec 4 - expiry
The number of working days where we were eligible to file the suit but courts were closed . That
particular date will not be considered when the court is closed
Next additional day - monday
Sec 5 - extension of prescribed in certain cases
Delay has taken place
Condonation of delay has to apply only to - appeal and application because time period is very short that
is given
Why not suits or execution applications?
We have substantial time frame given but we can so that under sec 151 of cpc
Discretion is on the court to provide condonation of delay or not to do that

What is sufficient cause

The expression “sufficient cause” is not defined in the act but as bought by several judgments sufficient
cause means a cause that is beyond the control of a person and invoking a aid of sec 5 therefore a cause
for delay which a party could have avoided by exercise of due care and caution cannot be a sufficient
cause
What exactly is a sufficient clause is to be decided according to the facts and circumstance of each case
,what is a sufficient clause
● Illness - it may be a sufficient clause if it is proved that the party was disabled to attain to the court
● Imprisonment - ordinarily it is not considered but if considered the time spent in jail is deducted
● Illiteracy - it is not a sufficient cause , mistake of fact is not a sufficient cause but bona fide mistake
is considered
 ● Negligence - not a sufficient cause

We should have a liberal construction or interpretation of a sufficient cause for advancement of justice in a
particular case that is “Heerala vs Bhunu Lal 1976” ( sufficient causes to be liberally interpreted)

Sec 6 - Legal Disability

● Minor
● Insane
● Idiot

Three brothers
One brother is minor
If the other brothers can discharge the liability on behalf of that one minor brother then it is ok otherwise
the brothers will have to wait when his disability of minority cease then they will get three years

Sec 9 - max benefit three years

10, 11 not imp
Sec 12- calculation from second day
Date of judgment - when filling an appeal, when the aggrieved judgment is filed that day will be exclude
Application - time taken to get the copy of judgment will be excluded
We will count the day from the date when we received the copy of judgment
Arbitral award - time taken to get arbitral award will be excluded

Sec 13 - time period taken by the court to ascertain whether it is a pauper suit or not ( if application
rejected) then while calculating remaining limitation that period will be excluded

Sec 15 - (1) time period due to stay of injunction period will be excluded
ATCPC notice - exclude 90 days frame to calculate remaining limitation period
Three months time given to receiver to get acquainted with the case and exclude three months
period to calculate remaining days
Time period to set aside
Defendant when not in india and not able to get summons and suit is filed so the absent time can be
excluded

Sec 17 - whenever fraud and mistake is committed

How to calculate
When comes into your knowledge from that day the prescribed period will be calculated

Sec 18
What is acknowledgement of debt
Ist jan - a took money from b
B said i will return it on ist feb
Before default made or cause of action take place
B on 31st jan went and acknowledges that he has to pay money to A
Fresh limitation - every time B acknowledges

Sec 22
Jitni baar breach utni baar fresh limitation will be issued
Breach is continuous
When the last breach took place that will be considered

23 , 24 - not imp

SEC 25 - if we are using something that is not ours and we are using it peacefully as a right without any
interruption as a easement and for 20 years - we have claimed here a right so we can acquire this right
through acquisition by possession

Chapter four of the limitation Act contains sec 25 - sec 27 and deals with acquisition of ownership by
possession, a party can acquire ownership over a property by virtue of his possession and out of which
acquisition of easement is one in limitation act neither the easement has been explained nor right of
easement has been defined in the act but this easement right has been defined under Indian Easement right
1882 where it defines easement as “beneficial enjoyment” this benefit may be in the nature of support or
comfort or convenience. The term prescription means “long possession” so here easement by prescription
means right exercised over the property of another for the beneficial that is comfort or convenience
enjoyment of the land by virtue of his long possession. The essential feature of easement are

1. Their must be two different lands belong to two diff persons

2. There must be a right vested in one owner of land to do or continue to do something upon the land
of another
3. Such right might have been for the beneficial enjoyment of his own land
4. The right must have been exercised over the land of another
5. The easement can be of different kinds
● Easement of weigh
● Easement of use of light
● Easement of use of air
● Easement to have support
● Easement of taking water for use and consumption etc

Ingredients of Sec 25

In order to constitute easement by prescription the following must be satisfied

1. Must be two different lands owned or occupied by two different persons
2. The person going to acquire the right of easement must have any building on his own land
 3. He must be drawing light or air for the beneficial enjoyment of his building coming over the land
of another
4. Such access and use of light or air to and for his building must have been peacefully enjoyed by
him
5. Such access and use of light and air must have been enjoyed by him as matter of right
6. Such enjoyment by him must have been without any interruption by the owner of the other land
7. Such enjoyment by him must have been for the continuous period of 20 years

Sec 27
1. Must be an immovable property belonging to a person
2. That immovable property must be in actual possession of a stranger
3. That possession of the stranger must be adequate in continuity and
● Extent to show that the possession is adverse to the owner

4. The possession must be actual , open, exclusive and adverse

5. The stranger while possessing the property must have an intention to hold the property
6. The possession of the stranger must not have been waste on any permission or license given by
the owner and must not be referred to any lawful title
7. The possession does not become adverse to the owner unless the owner has notice or
knowledge of such possession must the knowledge may be presumed from an open act of possession by
the stranger
8. The possession must be for a continuous period of 12 years.

All these ingredients were bought out by SC in the case “P Laxmi Reddy vs R Laxmi Reddy AIR 1957
SC 314”

Sec 25 - must be two different properties ( diff from sec 27)

Under sec 25 one acquire easement by prescription that is by his beneficial enjoyment and with his long
possession but under sec 27 one acquires ownership by his long possession , so under sec 25 you cannot
sell the easement right independently under sec 27 you only have to prove long possession

ORDER VII - WRITTEN STATEMENT

What
Extension
How many days to file
Rule 6 and rule 6(a) - set up and counter claim

Counter claim is a claim made by the defendant in a suit against the plaintiff for example - claim for
money , claim for an injunction , claim for specific performance and claim for declaration . in setup we
bring a aspect here we are acquiting the debt and only paying the remaining amount in counter claim the
attack which was brought against us in the counterclaim we are going counter claiming those attacks that
is bought by the plaintiff in a suit
Reciprocal acquittal of debt - set up
Declare that property in my favor
Counter claim - declaration in my favor

Illustrations - counter claims and set up , prepare problem questions ( read takwani for definitions )
Rule 6- set up
Rule 6A - counterclaim

Appearance and non appearance of parties - ORDER 9 rule 1,2,3 and 4 are important

Stage where sufficient service of summons are done and we realize that some parties have not come to the
court so rather than waiting for the other parties to come
[Link] 1
2. Dismissal of suit - because of non compliance of institution of suit

Rule 6 - what the remedy that person can get

Ex parte decree definition - refer takwani

Rule 8 - plaintiff has not appeared

If the defendant is appearing and is admitting the claim - following that judgment can be delivered
If appearing and not admitting claim - dismissal of suit
Appearing but only accepting part of the claim - dismiss others and admit other parts

Rule 13 - setting aside of ex parte decree

When we are going in a case of ex parte order ( rule 6) which has been passed in this order, so how do we
set aside the decree given on the merit of the case

Remedies in case of ex parte decree

1. Restoration
2. Appeal

Decree passed in the absence of the defendant it is a valid decree and it enforceable

ORDER 10 - EXAMINATION OF PARTIES HAS TO BE READ ALONG WITH OTHER ORDERS AS

WELL ( ORDER 14 and 15)
What are the procedures in first hearing
Oder 14 - to explain how issues are settled
Oder 15 - disposal of suit in first hearing
In this particular stage we find that both of the parties are present and court is asking the defendant as to
what part is he going to admit the claims against him, if something is admit the court is going to deliver
the judgment
Not admitted - go for issue settlement ,ORDER 10 RULE 1(A, B AND C) READ ALONG WITH SEC
89 going for the course of alternate dispute resolution
After issue settlement - adr will follow

Order 11 - not imp

ORDER 14 - SETTLEMENT OF ISSUES

What is an issue ( takwani)
Importance of having a issue in a case - to understand at what point the parties are at difference in that
particular case
Preliminary its is important for the court to decide the issue of law
Kinds of issues under order 14
● Issue of fact
● Issue if law ex- whether limitation can be their
● Mixed issue of fact and law

Q. Ascertain the issues given in the problem

Court also has the power if parties have not bought a certain issue then court can also bring in some issues
which parties have not bought - to avoid multiplicity of suit , a case has to be decided in complete
adjudication , court will determine all ancillary issues related to that case so that no other suit is brought
out of the same issue

PREPARE SHORT NOTE

ORDER 17 - adjournment
ORDER 19 - affidavits

ORDER 20 - JUDGEMENTS AND DECREE

Prepare - 3.5
What is a contents of a judgements
● Facts
● Issues
● Reasons for a decisions

What does it include

How judgements are delivered in lower courts and higher courts

Prepare - 3.5 from Takwani

What is a decree - formal expression of an adjudication which so far as regards the courts to conclusively
determine the rights of the parties ( with respect to that case no further issues can come) , court does not
add anything it is just filling up the form ( Takwani)
Types of decree
● Preliminary decree - can be more than one
● Final decree - conclusive determination
 ● In what situations can you get these decree

SPECIAL SUITS
Nature of suits has changed
Special persons involved
Sec 79 and 80, 81,82 deals with special suits with respect to suits by or against government ( here the got
will be representing one of the parties rather than one of the parties name , so UOI vs State )
Any civil suits to be initiated against the govt so according sec 80 a notice to the govt need to be sent
Object of waiting for 2 months period
In order to facilitate the person
Clause ( 2) immediate relief to be claimed , if we are satisfied that there is an urgent need so 2 months
waiting period can be waived
Accept
Reject
Sec 81 - whenever it is necessary that personal appearance of govt official is not necessary it can be done
so
Sec 82 - decree drawn against the govt and if no appeal a three month period needs to be observed , the
cause of action that has taken place against the official in such case we have to satisfy the act done is
whether in personal capacity ( normal suit) or professional capacity( suit by or against govt ke hisaab se it
will be a special suit )

Minor suits
Order 32 - suits by or against minor
– whenever we have a minor which has accrued right to sue so order 32 gives power to minor to file a suit
through guardian in that situation he can move ahead with the case
● Object of order 32
● To protect the interests of minors and lunatics and also to ensure that there represented in suits or
proceedings by persons who are qualified to act as such
● A decree passed by a minor or lucatic without appointment of a guardian is a nullity and is void
● In this particular aspect rule 1,1(a) and 2 - the suit will be returned of file without a guardian
representing the minor person , the third rule says that the guardian has to furnish sufficient
security of cost of the defendant in a suit by or against minor or lunatics you have to sufficiently
furnish a court fees and additional charges
● What is the purpose of money - if the minor loses the case the security money will go back to the
defendant
● The court to ensure that the Guardian should not have any adverse interest in the litigation

Power and duties of guardian

● Continue to stay the guardian in an appeal and review
● Consent from the guardian is important
● Unless a new guardian is appointed the guardian cannot opt out of the litigation
 ● In retirement and death , a new guardian needs to be appointed
● Guardian cannot enter into any compromise that is detriment to the interest of the minor
● If the court is satisfied that the compromise decree is beneficial to minor interest the guardian can
do so and the court will declare that compromise decree as valid , this compromise decree is not
appealable and cannot be set aside it will be enforceable

Kuashalya Devi vs Vaishnat Sayal

When court can remove this guardian

● His interest is adverse to that of the minor
● He is so connected with the opposite party that it is likely that the interest of the minor will be
properly protected by him
● He does not discharge his duty
● He ceases to stay in india
● Other sufficient cause

RULE 12, 13 AND `14

Situation as to what is next stage when the minor is major now
● Substitute guardian and represent independently
● Withdraw the suit and apply for dismissal
● Where he is co plaintiff
● Court can make him defendant from plaintiff if court feels like he is the necessary party

SEC 90 AND ORDER 36 ( FRIENDLY SUIT) Prepare short note

General suit - plaintiffs and defendants

Friendly suit - no plaint and written statement, but is an agreement which is to be drawn between the
parties ,the party want a particular question to be addressed by the court,
Friendly suit is a special suit where the parties do not approach a court by presentation of a plaint and a
written statement in this special case the parties are only interested in the decision of any question of fact
or law , the process which involves in the suit are that they enter into an agreement in writing stating such
questions in the form of a case for the purpose of obtaining the opinion of the court. The court may decide
the questions if it is satisfied that such question is fit to be decided

Conditions
● The agreement is duly executed by the parties
● The parties have bona fide interest in the question
● The question is fit to be decided
● It would be a consent decree - order came by the court
● No appeal lies against such consent decree
Give illustrations

SEC 88 AND ORDER 35 ( INTERPLEADER SUIT)

What is an interpleader suit?
Ex - there is a plaintiff and defendant but the plaintiff is holding no interest over the property against
which he has filed against the defendant , there has to be more that one defendant where the plaintiff is
just in possession of the property but he is not holding any interest and he is ready to give up the property
but the money which he has spent in preserving that property( movable) that money he claims and that if
is paid he will discharge himself and give the property to to rightful owner

Already a dispute lied between two defendant claiming that property will the interpleader suit lie - money
will be consolidated in the same suit

Condition where a person can file an interpleader suit

● Must be some debt , some of money or other property movable or immovable in dispute
● Two or more persons must be claiming it adversely to one another
● The person from whom such debt, money or property is claimed must not be claiming interests
therein other than the charges and cost and he must be ready and willing to pay or deliver it to the
rightful claimant
● There must be no suits pending where the rights of the rival claimants can be properly adjudicated

SUIT BY OR AGAINST INDIGENT PERSONS UNDER ORDER 33

Application to the court - no sufficient means to file a case like court fees related to the valuation of the
suit
Certain Conditions -
● Person should State that the valuation of property ( assets ) he is having is below 1000
● Not disposed of any property

Court will inquire whether the person is indigent or not and then reject ( proceed as normal suit) or
accept the suit ( proceed without him having to pay the court fees)

If he is not possessed of sufficient means to enable him to pay the fees prescribed by law
Where no such fee is prescribed
When he is not entitled to property worth 1000r
In this particular case, the property exempted from attachment in execution of a decree and the subject
matter of the suit shall be excluded
Till the time the report was drawn by the court the person has acquired or possessed a property that would
be considered and he would not be a pauper anymore

INJUNCTIONS
A judicial process whereby a party is required to do or refrain from doing any particular act injunctions
can be of three types
Under specific relief only first two
● Perpetual injunctions
● Mandatory injunctions
● Temporary injunctions under order 39 CPC

Golden principles governing the law of injunctions as laid by Dalpat Kumar vs Prahlad Singh AIR 1993
SC 276
( write in detail all three )
There should be a prima facie case
Irreparable injury such which cannot be compensated with any amount of money
Balance of convenience -

Cases in which temporary injunctions can be granted

● Where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any
person or disposed of by any party to the suit
● If it is attempted to be sold wrongful in execution of a decree
● Where a defendant threatens or intends to destroy, remove , dispose his property with intent to
defraud his creditors
● Where a defendant threatens to dispose the plaintiff’s property or otherwise cause injury to the
plaintiff with respect to the property in dispute
● Where a defendant is about to commit a breach of contract or other injury of any kind
● Where a court is of opinion that the interests of justice requires the grant of injunction

Mandatory injunction - cases in which mandatory injunction can be granted are

1. To prevent the breach of an obligation , necessity to compel the performance of certain acts , the
court in this case enforces an mandatory injunction to avoid any further damages to the parties
2. A mandatory injunction may be defined as one which commands the doing of some positive act by
the defendant, which sometimes may change the status of the parties. A mandatory injunction
forbids the defendants to permit the continuation of a wrongful state of things that already exists at
the time when the injunction is ensued the main purpose here is to restore the wrongful state of
things to the rightful person

Appeal , review , revision - not their