Section A: Short Answer Questions

1. Define 'Legal Representative' under the CPC.

o A 'Legal Representative' is a person who, in law, represents

the estate of a deceased person and includes any person who
intermeddles with the estate of the deceased.

2. What is a 'Foreign Judgment' as per the CPC?

o A 'Foreign Judgment' refers to the judgment of a foreign court,

which is defined as a court situated outside India and not
established or continued by the authority of the Central
Government.

3. Explain 'Equitable Set-off'.

o 'Equitable Set-off' allows a defendant to claim a set-off for

unascertained sums arising out of the same transaction, even
if the claims are not legally recoverable debts.

4. What constitutes a 'Decree' under the CPC?

o A 'Decree' is the formal expression of an adjudication that

conclusively determines the rights of the parties regarding all
or any of the matters in controversy in the suit.

5. How does fraud affect the period of limitation?

o If fraud is discovered, the period of limitation begins from the

time when the fraud becomes known to the person affected
by it.

6. Who is considered an indigent person, and how can such a

person file a suit?

o An indigent person is one who is not possessed of sufficient

means to pay the prescribed court fees. Such a person can file
a suit by applying for permission to sue as an indigent person,
accompanied by an affidavit stating their financial status.

7. Discuss the main characteristics of the 'Law of Limitation'.

o The 'Law of Limitation' prescribes the time limits within which

legal actions must be initiated. It bars the remedy after the
lapse of the prescribed period but does not extinguish the
right itself.

8. What are the 'inherent powers' of a civil court?

 o Inherent powers are those that allow a court to make orders
necessary for the ends of justice or to prevent abuse of the
court's process. These powers are exercised in situations not
covered by the CPC's specific provisions.

9. What is 'Reference' under the CPC, and how does it differ

from 'Review' and 'Revision'?

o 'Reference' involves a subordinate court referring a question

of law to the High Court for opinion. 'Review' allows a court to
reconsider its own judgment under certain conditions.
'Revision' enables a higher court to examine the record of a
lower court to ensure the correctness of its decisions.

10. Explain the doctrine of 'Res Judicata' and its essential

conditions.

 'Res Judicata' prevents the same parties from litigating the same
issue in multiple suits. The conditions include: a final judgment by a
competent court, the same parties involved, the same subject
matter, and the same cause of action.

11. Summarize the provisions of attachment under the CPC

and state any exceptions.

 The CPC allows for the attachment of property to satisfy a decree.

Certain properties, such as necessary wearing apparel, tools of
artisans, and houses occupied by agriculturists, are exempt from
attachment.

12. What is a 'Plaint', and what are its necessary

particulars?

 A 'Plaint' is the written statement of a plaintiff's claim. It must

include particulars such as the name of the court, names and
addresses of parties, facts constituting the cause of action, and the
relief sought.

13. Define 'Summons' and describe its essential elements

and modes of service.

 A 'Summons' is a document issued by a court directing a person to

appear before it. Essential elements include the court's seal, case
number, and appearance date. Service can be effected personally,
by registered post, or through substituted means like publication.
 14. What is a 'Written Statement', and how does it differ
from 'Counter-Claim' and 'Set-off'?

 A 'Written Statement' is the defendant's response to the plaint. A

'Counter-Claim' is a claim made by the defendant against the
plaintiff, while 'Set-off' is a claim that reduces or extinguishes the
plaintiff's demand.

15. Discuss the procedure for filing an appeal under the

CPC.

 An appeal is filed by presenting a memorandum of appeal to the

appellate court, stating the grounds of objection to the decree or
order appealed against. It must be filed within the prescribed
limitation period.

16. What is 'Execution' in the context of the CPC, and what

are its modes?

 'Execution' is the process of enforcing a decree or order. Modes

include delivery of property, attachment and sale of property, arrest
and detention, and appointment of a receiver.

17. Explain the concept of 'Interim Orders' and provide

examples.

 'Interim Orders' are temporary orders issued during the pendency of

a suit to preserve the status quo or prevent irreparable harm.
Examples include temporary injunctions and orders for the
appointment of a receiver.

18. What is the significance of 'Order 21' in the CPC?

 'Order 21' deals with the execution of decrees and orders, outlining
the procedures for attachment and sale of property, arrest and
detention, and other methods of execution.

19. Describe the procedure for 'Review' under the CPC.

 A party seeking a review must file an application stating the

grounds, such as discovery of new evidence or error apparent on the
face of the record. The application must be made to the same court
that passed the decree or order.

20. What are 'Caveats' under the CPC.

A Caveat under the Civil Procedure Code (CPC) is a precautionary

measure taken by an individual who has an apprehension that some
application may be filed in a court affecting their interest. The provisions
related to caveats are contained in Section 148A of the CPC.
Key Features of a Caveat:

1. Definition:

o A caveat is a written notice lodged by a person, called the

"caveator," to a court requesting that no order or judgment
should be passed in a matter without giving prior notice to
them.

2. When it Can Be Filed:

o A caveat can be filed by a person who claims a right to appear

before the court, either before or after the institution of a suit
or proceeding.

3. Notice to Caveator:

o Once a caveat is filed, it is the duty of the court to notify the

caveator if any application is made in the related matter.

4. Period of Validity:

o A caveat remains valid for 90 days from the date of filing. If

no application is filed in this period, the caveat ceases to have
effect.

5. Who Can File:

o Any person anticipating that an application will be made

against them in a suit or proceeding can file a caveat.

6. Requirement of Service:

o The caveator is required to serve a copy of the caveat on the

person who is likely to file the application.

Example:

If a property owner anticipates that a tenant might file an application for a

stay of eviction, the owner can file a caveat to ensure that they are heard
before any stay order is passed.

Purpose:

 The provision ensures fairness and prevents one-sided decisions or

orders without giving an opportunity to the caveator to present their
case.

21.What is MESNE PROFIT under CPC.Explain with examples

Mesne Profit under the Civil Procedure Code (CPC) refers to the
profits or benefits derived by a person in wrongful possession of
immovable property, which the rightful owner would have otherwise
earned. It is defined in Section 2(12) of the CPC.

Definition

Mesne Profit refers to:

1. Profits received by a person in wrongful possession of property.

2. Profits that the rightful owner is deprived of due to such

wrongful possession.

3. The compensation is calculated by considering the rent or profit that

the property could reasonably generate.

However, Mesne Profits do not include any profit due to

improvements made to the property by the person in wrongful
possession.

Essentials of Mesne Profit

1. Wrongful Possession:

o The possession of the person against whom the claim is made

must be illegal or without authority.

2. Profits Derived:

o The wrongful possessor must have derived some benefit or

profit from the property.

3. Loss to the Owner:

o The rightful owner must have been deprived of the property or

its benefits during this period.

4. Exclusion of Improvements:

o Any profit that accrues due to improvements or additions

made by the wrongful possessor is excluded.

Objective

The purpose of mesne profit is to:

1. Compensate the rightful owner for the loss.

2. Prevent unjust enrichment of the person in wrongful possession.

Examples

Example 1:

A tenant continues to occupy a house after the termination of their lease

without the landlord's consent. The landlord can file a suit for eviction and
claim mesne profits for the rent or income the tenant should have paid
during the unauthorized occupation.

Example 2:

A person occupies agricultural land without legal entitlement and harvests

crops during the period of wrongful possession. The rightful owner can
claim mesne profits equivalent to the value of the crops or the income
from the land during that period.

Example 3:

A factory is set up on a plot of land wrongfully occupied by a trespasser.

The rightful owner can claim mesne profits equal to the rent or lease
amount the property could have generated during the unauthorized use.

Assessment of Mesne Profit

Courts calculate mesne profits based on:

1. Reasonable Market Rent:

o The rent the property could have earned during the wrongful
possession.

2. Actual Benefits:

o The profits the wrongful possessor derived from the property.

3. Interest:

o Courts may award interest on mesne profits as compensation

for delayed payment.

Legal Provisions

1. Section 2(12): Defines mesne profits.

2. Order XX, Rule 12: Deals with the procedure for awarding mesne
profits.

3. Decree for Possession and Mesne Profit:

 o The decree can direct the defendant to pay mesne profits to
the plaintiff.

Judicial Precedents

1. Fakir Chand v. Ram Ratan Bhan (AIR 1973 SC 921):

o The Supreme Court emphasized the importance of

compensating the rightful owner for the loss incurred during
wrongful possession.

2. K.K. Verma v. Union of India (AIR 1954 SC 1092):

o Clarified that mesne profits should include only reasonable

profits that the property could have earned.

Mesne profits act as an equitable remedy to ensure rightful owners are

compensated for losses due to wrongful possession.

22.What do mean by foreign judgment?(Long Question)

A foreign judgment under the Civil Procedure Code (CPC) is defined

as the judgment of a foreign court. This is specifically addressed in
Section 2(6) of the CPC.

Definition:

 A foreign judgment is a decision of a court situated outside

India and not established or continued by the authority of
the Central Government of India.

Key Features of a Foreign Judgment:

1. Pronounced by a Foreign Court:

o It must be delivered by a court that operates in a country

other than India.

2. Judicial Determination:

o It must represent the final decision of a court on matters of

law and fact.

3. Not Automatically Binding:

 o While recognized in India, it is not enforceable until it satisfies
certain legal conditions under Sections 13 and 14 of the
CPC.

Section 13: When a Foreign Judgment is Conclusive

A foreign judgment is conclusive regarding any matter directly

adjudicated upon, except in the following cases:

1. Not Pronounced by a Competent Court:

o If the foreign court did not have proper jurisdiction to try the
matter.

2. Not Based on Merits:

o If the judgment was passed without consideration of the

merits (e.g., ex parte or default judgments without trial).

3. Fraudulent Judgment:

o If the judgment was obtained by fraud.

4. Against Indian Public Policy:

o If the judgment is contrary to the laws or public policy of India.

5. Contrary to Indian Law:

o If the judgment disregards Indian law on the basis of which the

case should have been decided.

6. Proceedings Opposed to Natural Justice:

o If the judgment was delivered in violation of natural justice

(e.g., without giving notice to the parties or the opportunity to
be heard).

Section 14: Presumption as to Foreign Judgment

 Indian courts presume that a foreign judgment was delivered by a

court of competent jurisdiction, unless proven otherwise.

Enforcement of Foreign Judgment in India

To enforce a foreign judgment in India:

1. Reciprocating Territories:
 o Judgments from reciprocating territories (countries notified
by the Indian Government) can be directly executed as a
decree under Section 44A of the CPC.

o Examples: United Kingdom, Singapore, UAE, etc.

2. Non-Reciprocating Territories:

o Judgments from non-reciprocating territories must be filed as

a fresh suit in Indian courts.

Example of a Foreign Judgment

 If a U.S. court passes a decree awarding monetary compensation to

a plaintiff, the judgment can be enforced in India only if:

o The U.S. is a reciprocating territory, and

o The judgment satisfies the conditions of Section 13.

Key Case Laws

1. Satya v. Teja Singh (AIR 1975 SC 105):

o The court held that a foreign judgment obtained by fraud is

not enforceable in India.

2. Duggamma v. Ganeshayya (AIR 1953 Mys 189):

o Reinforced the principle that judgments contrary to natural

justice are not conclusive in India.

23.what do mean by res judicata

Res Judicata is a Latin term meaning "a matter already judged."

Under the Civil Procedure Code (CPC), it is a legal doctrine that bars a
court from trying a case that has already been decided by a competent
court. The principle is codified in Section 11 of the CPC.

Definition:

Section 11 of the CPC states:

 Res Judicata applies when a matter directly and substantially in

issue in a subsequent suit has been directly and substantially in
issue in a former suit, between the same parties (or their
 representatives), and has been finally decided by a competent
court.

Essentials of Res Judicata:

1. Same Matter in Issue:

o The matter in the subsequent case must be the same as the

one decided in the earlier case.

2. Direct and Substantial Issue:

o The issue must be directly related to the case and not

incidental or peripheral.

3. Same Parties:

o The parties in both cases must be the same or claim under the
same title.

4. Final Decision:

o The earlier case must have been finally decided by a court

with competent jurisdiction.

5. Competent Court:

o The previous decision must have been made by a court legally

capable of deciding the issue.

6. Same Title:

o Both cases must be filed under the same title or legal

capacity.

Objective of Res Judicata:

 Prevent Multiple Suits: To avoid repeated litigation over the same

issue.

 Ensure Judicial Finality: To provide certainty and closure to legal

disputes.

 Prevent Abuse of Process: To stop parties from re-litigating issues

that have already been resolved.

Illustration:

1. Example 1:

o A sues B for the ownership of a piece of land, and the court

rules in favor of A. Later, B cannot sue A again for the same
land on the same grounds, as the matter is already decided.
 2. Example 2:

o A tenant sues the landlord for wrongful eviction, and the court
rules in favor of the tenant. The landlord cannot file another
case on the same issue.

Scope of Res Judicata:

1. Civil Proceedings:

o It applies strictly to civil suits and proceedings under the CPC.

2. Writ Petitions:

o The principle also applies to writ petitions under Articles 32

and 226 of the Indian Constitution.

3. Execution Proceedings:

o Res Judicata applies to execution proceedings as well.

4. Public Interest Litigation (PIL):

o It applies only when the issue has been finally adjudicated and
the public interest remains the same.

Exceptions to Res Judicata:

1. Fraud:

o If the earlier judgment was obtained by fraud, the principle of

Res Judicata does not apply.

2. Lack of Jurisdiction:

o If the court lacked jurisdiction to decide the earlier case, Res

Judicata will not apply.

3. Changes in Law or Facts:

o A significant change in law or facts may allow the issue to be

re-litigated.

Key Case Laws:

1. Daryao v. State of U.P. (AIR 1961 SC 1457):

o Res Judicata was held applicable to writ petitions filed under

Article 32 of the Constitution.

2. Satyadhyan Ghosal v. Deorajin Debi (AIR 1960 SC 941):

 o Explained the importance of finality in judicial decisions.

3. K.K. Modi v. K.N. Modi (1998 SC 1297):

o Reinforced the applicability of Res Judicata to avoid abuse of

judicial process.

Difference Between Res Judicata and Res Sub Judice:

Res Judicata Res Sub Judice

Refers to a matter already

Refers to a matter pending in a court.
decided.

Governed by Section 11 of
Governed by Section 10 of the CPC.
the CPC.

Prevents re-litigation of a Prevents multiple suits on the same matter

resolved issue. during pendency.

24.Meaning of equitable set off under CPC(long Question)

Equitable Set-off under the Civil Procedure Code (CPC) refers to a

situation where a defendant, in a suit for recovery of money, claims to set
off an unascertained or non-liquidated amount that arises out of the same
transaction. Unlike legal set-off, which deals with liquidated claims (fixed
sums), equitable set-off is based on principles of equity and justice.

Meaning and Concept

 Equitable set-off is not explicitly provided for in the CPC but is

recognized under the inherent powers of the court to do justice
between the parties.

 It arises when:

1. The cross-demands are connected with the same transaction.

2. It would be unfair to enforce one demand without taking into

account the other.

Essentials of Equitable Set-off

1. Same Transaction:
 o The claim sought to be set off must arise from the same
transaction as the plaintiff's claim.

2. Unascertained or Non-Liquidated Amount:

o The amount does not need to be an exact or fixed sum, unlike

in legal set-off.

3. Principles of Equity and Justice:

o The court will allow an equitable set-off if it is fair and just to

do so.

4. No Statutory Basis:

o Unlike legal set-off, which is governed by Order VIII, Rule 6

of the CPC, equitable set-off is based on equitable principles.

5. Discretion of the Court:

o It is subject to the court's discretion and may not be allowed in

every case.

Examples of Equitable Set-off

1. Example 1:

o A supplier sues a buyer for the price of goods supplied. The

buyer claims that the goods were defective and seeks
compensation for the damages. The buyer's claim for
compensation can be raised as an equitable set-off, as it
arises from the same transaction.

2. Example 2:

o A landlord sues a tenant for unpaid rent. The tenant claims

that the landlord failed to repair the property as agreed,
causing the tenant losses. The tenant's claim can be raised as
an equitable set-off.

Difference Between Legal Set-off and Equitable Set-off

Legal Set-off Equitable Set-off

Provided for under Order VIII, Rule 6 Based on equitable principles, not
of CPC. statutory.

Deals with liquidated amounts or Deals with unliquidated

Legal Set-off Equitable Set-off

ascertained sums. amounts or damages.

Does not require the claims to arise Requires that claims arise from
from the same transaction. the same transaction.

Discretionary, subject to the

A legal right of the defendant.
court's judgment.

Judicial Precedents

1. Union of India v. Karam Chand Thapar (AIR 1955 SC 1449):

o The Supreme Court clarified the difference between legal and

equitable set-off, emphasizing that equitable set-off is rooted
in the principles of justice.

2. M/s Lakshmichand Balchand v. State of Andhra Pradesh (AIR

1981 SC 753):

o The court allowed equitable set-off, stating it arises from the

same transaction and is grounded in equity.

Limitations of Equitable Set-off

1. Discretionary:

o Courts may refuse equitable set-off if the claim is frivolous or

disconnected from the main transaction.

2. No Independent Suit:

o The defendant cannot claim an equitable set-off in a separate,

independent suit.

3. Not Available Against Time-Barred Claims:

o Claims that are barred by limitation cannot be allowed as

equitable set-off.

Equitable set-off is an important principle rooted in fairness, enabling

courts to balance claims arising out of the same transaction. Though not
codified in the CPC, it plays a significant role in ensuring justice between
parties, preventing unnecessary litigation, and resolving disputes
efficiently.

25.What would be the effects of fraud on the period of limitation.

The effect of fraud on the period of limitation is an important legal
principle under the Limitation Act, 1963 (which works alongside
procedural laws like the CPC). Fraud can impact the computation of the
limitation period for filing a suit or initiating legal proceedings.

Relevant Provision

 Section 17 of the Limitation Act, 1963:

This section specifically provides for the extension of the
limitation period in cases of fraud, mistake, or concealment.

Key Principles

1. Postponement of Limitation:

o If fraud has been committed, the period of limitation does not

begin to run until the plaintiff discovers the fraud or could
have discovered it with reasonable diligence.

2. Discovery of Fraud:

o The limitation period starts only from the date on which the
plaintiff becomes aware of the fraud.

3. Fraudulent Concealment:

o If the defendant fraudulently conceals a material fact

necessary for the plaintiff to know their cause of action, the
limitation period will be extended.

4. Purpose:

o The law ensures that a wrongdoer cannot benefit from their

fraudulent acts to prevent the rightful owner from asserting
their claim.

Illustrations

1. Fraudulent Sale of Property:

o A person fraudulently sells property belonging to another and

conceals the transaction. The limitation period for the rightful
owner to file a suit for recovery begins only when they
discover the fraudulent sale.

2. Suppression of Documents:
 o A trustee suppresses a deed that grants certain rights to a
beneficiary. The beneficiary’s limitation period to file a suit
begins when the suppression is uncovered.

3. Fraud in Accounting:

o A partner in a firm fraudulently manipulates accounts to show

reduced profits. The limitation for filing a suit for a proper
accounting starts when the fraud is detected.

Conditions for Invocation of Section 17

1. Fraud must be proven.

2. Plaintiff must demonstrate that they acted diligently upon

discovering the fraud.

3. The delay in filing the suit must be directly attributable to the fraud.

Judicial Precedents

1. Lata Kamat v. Vilas (1999):

o The court held that fraudulent acts justify the extension of the
limitation period under Section 17.

2. Tilokchand Motichand v. H.B. Munshi (1970):

o The Supreme Court emphasized that the plaintiff must act

with reasonable diligence after discovering the fraud.

3. S.P. Chengalvaraya Naidu v. Jagannath (1994):

o It was reiterated that fraud vitiates all proceedings, and

limitation starts from the discovery of the fraudulent act.

Exceptions

 Time-Barred Claims: If a plaintiff had the opportunity to discover

the fraud earlier through reasonable diligence but failed to do so,
they cannot invoke Section 17.

 Laches: The principle of delay and acquiescence (laches) may still

apply if the plaintiff unreasonably delays after discovering the fraud.

Fraud has a significant impact on the limitation period as it suspends the

running of time until the fraud is discovered. This provision ensures that
wrongdoers do not benefit from their fraudulent acts and protects the
rights of individuals who may otherwise lose their claims due to
procedural time limits. However, the plaintiff must act diligently and file
the suit promptly after the fraud is discovered.

26.Define movable property.

Movable Property refers to property that can be transferred from one

place to another without altering its substance. Under Indian law, it is
distinguished from immovable property (like land and buildings) and is
governed by various statutes, including the Transfer of Property Act,
1882, Sale of Goods Act, 1930, and others.

Definition

1. General Definition:

o Movable property includes tangible property (physical

items) that can be moved from one location to another.

2. Legal Definition:

o According to Section 3(36) of the General Clauses Act,

1897, movable property refers to property other than
immovable property.

Examples of Movable Property

 Personal belongings: Clothes, furniture, and jewelry.

 Vehicles: Cars, motorcycles, bicycles.

 Money: Cash, checks, promissory notes.

 Commodities: Agricultural produce, raw materials, machinery.

 Stocks and bonds: Treated as movable property under financial

regulations.

Characteristics of Movable Property

1. Mobility:

o It can be transported from one place to another without

altering its essence.

2. Ownership and Transferability:

 o Ownership can be easily transferred by physical delivery or
legal documentation.

3. No Registration Requirement:

o Unlike immovable property, movable property generally does

not require registration with the government (except in special
cases, like vehicles).

4. Valuation:

o Its value is determined by the item's market price.

5. Exclusion of Land-related Items:

o Trees (if rooted), buildings, and land cannot be categorized as

movable property.

Legal Provisions Related to Movable Property

1. Sale of Movable Property:

o Governed by the Sale of Goods Act, 1930, which deals with

the sale, purchase, and rights related to movable goods.

2. Transfer of Movable Property:

o The Transfer of Property Act, 1882, applies primarily to

immovable property but may be used in specific cases for
movable property.

3. Pledge and Bailment:

o Movable property can be pledged as security for loans

(governed under the Contract Act, 1872) or handed over for
specific purposes under bailment.

4. Taxation:

o Movable property is subject to different taxation laws, such as

Goods and Services Tax (GST).

Difference Between Movable and Immovable Property

Movable Property Immovable Property

Cannot be moved; attached to the

Can be physically moved.
earth.
Movable Property Immovable Property

No registration required Registration is mandatory under

(generally). law.

Governed by Sale of Goods Governed by Transfer of

Act, etc. Property Act.

Example: Cars, jewelry, money. Example: Land, buildings, trees.

Judicial Precedents

1. Sultan Singh v. Sheoram (AIR 1971 SC 2397):

o Clarified that shares, though intangible, are considered

movable property as they can be transferred.

2. Rai Bahadur Hiralal v. Municipality of Cawnpore (1918 ILR 40

All 440):

o The court held that machinery fixed to the earth could be

treated as movable property if it is meant to be detached and
sold separately.

Movable property plays a crucial role in daily life and commerce, as it

includes most assets used for personal and business purposes. Its
flexibility in transfer and ease of taxation and legal handling make it
distinct from immovable property. The laws governing it ensure clear
rights, ownership, and transfer mechanisms.

27. Estoppel

Estoppel: Legal Concept and Meaning

Estoppel is a legal principle that prevents a person from asserting

something contrary to what they have previously stated, done, or agreed
to, especially if another person has relied on those statements, actions, or
agreements. It is based on principles of fairness and equity and aims to
prevent injustice caused by inconsistency.

Definition under Indian Evidence Act

 Section 115 of the Indian Evidence Act, 1872 defines estoppel:

o "When one person has, by his declaration, act, or omission,

intentionally caused or permitted another person to believe a
thing to be true and to act upon such belief, neither he nor his
 representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to
deny the truth of that thing."

Key Features of Estoppel

1. Representation:

o A statement, act, or omission by one person that leads

another to believe in a certain state of affairs.

2. Reliance:

o The other party must have acted upon the representation to

their detriment.

3. Preclusion:

o The person making the representation cannot deny its truth in

subsequent proceedings.

4. Fairness:

o It is based on the principle of preventing harm caused by

inconsistency or deceit.

Types of Estoppel

1. Estoppel by Representation:

o Occurs when a person, by words or conduct, makes another

believe in the existence of a particular state of affairs and acts
upon it.

Example:

o A landlord tells a tenant that the rent will not be increased for
five years. Later, the landlord cannot claim increased rent
during this period.

2. Promissory Estoppel:

o When one party makes a promise to another, knowing it will

be acted upon, they cannot go back on the promise if the
other party has relied on it.

Example:
 o A government promises tax benefits to a company for setting
up operations in a backward area. Later, the government
cannot withdraw those benefits.

3. Estoppel by Conduct:

o A person’s actions or behavior lead another to a belief that is

acted upon.

Example:

o If a father tells a third party that his son is authorized to sell

his land, he cannot later claim that his son had no such
authority.

4. Estoppel by Silence:

o When a person fails to speak up where it is their duty to do so,

and another party relies on their silence.

Example:

o If a person sees their property being sold without protest, they

cannot later claim ownership.

5. Estoppel by Record or Res Judicata:

o Prevents parties from re-litigating the same issue that has

been previously decided by a competent court.

6. Equitable Estoppel:

o Applies when fairness or justice demands that a person be

precluded from going back on their word.

Exceptions to Estoppel

1. Illegal Acts:

o Estoppel cannot be used to uphold an illegal contract or

action.

2. Mistake of Law:

o Estoppel does not apply if the representation is based on a

mistake of law.

3. Matters of Jurisdiction:

o Estoppel cannot override statutory provisions or confer

jurisdiction on a court where none exists.
 4. Misrepresentation Known to the Other Party:

o If the party relying on estoppel knows the representation was

false, estoppel does not apply.

Judicial Precedents

1. Central London Property Trust Ltd. v. High Trees House Ltd.

(1947):

o This case established the principle of promissory estoppel.

A promise to reduce rent during wartime was held enforceable
because the tenant had relied on it.

2. Union of India v. Anglo-Afghan Agencies (AIR 1968 SC 718):

o The Supreme Court upheld promissory estoppel against the

government, emphasizing that the government must honor its
commitments when others have acted upon them.

3. Mohan Lal v. Mirza Abdul Gaffar (1996):

o The Supreme Court ruled that estoppel cannot apply in cases

where the original representation is against the law.

Distinction Between Estoppel and Waiver

Estoppel Waiver

Based on voluntary relinquishment

Based on representation or conduct.
of a right.

Prevents a person from asserting

Prevents enforcement of a right.
contrary facts.

Rooted in fairness and equity. Rooted in consent or agreement.

Estoppel is a powerful tool in ensuring justice and preventing unfair

conduct by binding parties to their representations or promises. It
reinforces consistency and honesty in legal and contractual relationships
while safeguarding parties who act in reliance on another's
representations.

27. Who is an indigent person? How can a suit be filed by an indigent

person? Discuss.
Who is an Indigent Person?

An indigent person is someone who is unable to pay the prescribed

court fees for filing a suit due to lack of sufficient financial means. The
concept is primarily governed by Order 33 of the Civil Procedure Code
(CPC), 1908.

Definition under Order 33 Rule 1:

 A person is considered indigent if:

1. They have no sufficient means (excluding exempted property

like basic necessities) to pay court fees prescribed for the suit.

2. They are not in possession of any property worth the court fee
amount, except wearing apparel, basic household necessities,
or tools of trade.

How Can a Suit Be Filed by an Indigent Person?

A person who claims to be indigent can file a suit without paying court
fees, provided they satisfy the legal requirements under Order 33 of the
CPC. Here’s the process:

Step-by-Step Procedure:

1. Application to Sue as an Indigent Person:

o The person must file an application in the court where they

intend to file the suit.

o The application should include:

 Details of their inability to pay court fees.

 A schedule of their property (assets and liabilities).

2. Court Examination:

o The court will examine the application to verify:

 The financial status of the applicant.

 The merits of the case.

o If the court finds that the applicant has deliberately

undervalued or concealed property to avoid paying court fees,
the application may be rejected.

3. Inquiry into Financial Status:

 o The court may conduct an inquiry into the financial status of
the applicant. This may involve:

 Examination of witnesses.

 Verification of the applicant's statements.

 Consultation with government officials if necessary.

4. Objections from the Opposite Party:

o The opposite party (defendant) is given an opportunity to

object to the application.

o If objections are raised, the court will hear both parties and
decide.

5. Grant of Permission:

o If satisfied, the court permits the applicant to file the suit as

an indigent person.

o Once permitted, the suit proceeds as if court fees have been

paid.

6. Rejection of Application:

o The application can be rejected if:

 The applicant is found to have sufficient means.

 The application is frivolous or without substance.

 The applicant is guilty of misconduct or suppression of

facts.

7. Payment of Court Fees Later:

o If during the course of the suit, the indigent person acquires

sufficient means to pay court fees, the court may direct them
to pay the requisite fees.

Effect of Permission to Sue as an Indigent Person

 Once the application is granted:

o The case proceeds like any other suit.

o The applicant is exempted from paying court fees initially.

o The court fees may be recovered from the defendant if the

plaintiff wins, or from the plaintiff if they lose and later acquire
sufficient means.
Conditions for Filing as an Indigent Person

1. The claim should not be barred by law.

2. The applicant must not have deliberately transferred property to

qualify as indigent.

3. The applicant must provide accurate details of their financial status

and property.

Example

 A person who earns only INR 5,000 per month and does not own any
significant assets other than daily necessities may qualify as an
indigent person if they cannot afford the court fees for a suit worth
INR 2,00,000.

Judicial Precedents

1. K.K. Verma v. Union of India (AIR 1954 SC 1092):

o The court held that the ability to pay court fees should be
assessed based on the plaintiff’s present financial capacity.

2. Smt. Jugal Kishore v. Dhanno Devi (1973):

o It was clarified that courts must ensure that the application is

not made with malicious intent or to delay the suit.

3. R. Lakshmikantham v. Devaraji (AIR 1957 Mad 795):

o The court emphasized that indigent status is determined on

the date of filing the application.

Significance of Order 33

 Ensures access to justice for the economically weaker sections of

society.

 Prevents denial of justice due to inability to pay court fees.

 Encourages equity and fairness by balancing the rights of all parties.

An indigent person under the CPC is someone who cannot afford court
fees, and Order 33 provides a mechanism for such persons to file suits
without upfront financial burdens. The law ensures that justice is not
denied on the grounds of poverty, upholding the principle of equal
access to justice. However, courts exercise strict scrutiny to prevent
misuse of this provision.
28. Discuss the main characteristics of "Law of limitation". "Limitation bars
remedy but not extinguish the right" discuss.

Law of Limitation: Characteristics and Principle

The Law of Limitation is codified under the Limitation Act, 1963,

which governs the time limits within which legal proceedings can be
initiated. It aims to provide certainty and finality to disputes, ensuring that
stale claims are not entertained.

Main Characteristics of the Law of Limitation

1. Prescribes Time Limits:

o The Limitation Act sets a specific time period for filing suits,
appeals, or applications in courts based on the nature of the
claim.

2. Bars Remedy but Does Not Extinguish the Right:

o The law prevents the enforcement of rights through the court

if the claim is time-barred, but it does not destroy the
underlying legal right.

3. Applies to Civil Proceedings:

o Primarily applicable to civil suits, appeals, and applications;

criminal proceedings are governed by separate statutes.

4. Uniform Application:

o The Act applies uniformly across India (except Jammu and

Kashmir and tribal areas, unless specifically included).

5. Protects Defendants from Stale Claims:

o It ensures fairness to defendants by preventing the revival of

old claims that might lack evidence due to the passage of
time.

6. Encourages Diligence:

o By prescribing strict time limits, the law encourages parties to

pursue their claims promptly and efficiently.

7. Exemptions and Extensions:

o The Act provides for the extension of time in certain cases

(e.g., fraud, disability, or acknowledgment of debt).
 8. Prevents Misuse of Judicial Process:

o It ensures that the judiciary is not burdened with outdated

cases, maintaining the efficiency of courts.

"Limitation Bars Remedy but Does Not Extinguish the Right"

Meaning:

This principle reflects that the law of limitation only restricts the
enforcement of a legal right through the courts if the prescribed time
period has elapsed. However, the right itself remains intact.

For example:

 If a debt becomes time-barred, the creditor cannot file a suit to

recover it, but the debt itself is not extinguished. If the debtor
acknowledges the debt or makes a partial payment, the creditor
may still enforce it.

Illustrations:

1. Debt Recovery:

o If a creditor does not file a suit within three years from the
date the debt becomes due, they lose the legal remedy to
recover the amount. However, if the debtor acknowledges the
debt later, the limitation period resets.

2. Possession of Property:

o A person’s right to recover possession of property remains

intact even after the limitation period for filing a suit has
expired. However, the remedy to enforce this right through
court action is barred.

Exceptions to the Principle

1. Adverse Possession:

o In cases of adverse possession, the law extinguishes the right

of the original owner if they fail to take action within the
limitation period.

2. Statutory Rights:

o Certain statutory rights, once barred by limitation, may also

extinguish the underlying right (e.g., tax claims).
 3. Suit for Redemption of Mortgage:

o Failure to initiate a redemption suit within the limitation period

may extinguish the mortgagor’s right to redeem.

Judicial Precedents

1. Bombay Dyeing & Manufacturing Co. Ltd. v. State of Bombay

(AIR 1958 SC 328):

o The Supreme Court reiterated that limitation bars the remedy

but does not destroy the right unless explicitly provided by
law.

2. K.S. Nanji & Co. v. Jatashankar Dossa (AIR 1961 SC 1474):

o It was held that limitation prevents enforcement through

courts but does not affect substantive rights.

3. State of Punjab v. Gurdev Singh (AIR 1991 SC 2219):

o The court stated that the law of limitation promotes diligence

and prevents abuse of the judicial process.

Significance of the Principle

1. Protects the Defendant:

o Defendants are protected from stale claims where evidence

may be lost or destroyed due to delay.

2. Preserves Judicial Efficiency:

o Courts are safeguarded from unnecessary congestion caused

by delayed or outdated claims.

3. Prevents Injustice:

o It ensures timely adjudication of disputes, reducing

uncertainty and hardship.

Exceptions Allowing Extension of Limitation

1. Fraud or Concealment:

o If fraud is discovered, the limitation period begins from the

date of discovery (Section 17 of the Limitation Act).
 2. Disability:

o If the plaintiff is a minor, insane, or under any legal disability,

the limitation period starts after the disability ceases (Section
6).

3. Acknowledgment of Debt:

o If the debtor acknowledges the debt in writing before the

expiry of the limitation period, a fresh limitation period starts
from the date of acknowledgment (Section 18).

4. Continuous Breach or Tort:

o In cases of continuous breaches, limitation starts from the

date of the last act.

The Law of Limitation is fundamental in ensuring prompt resolution of

disputes and maintaining judicial efficiency. The principle that “limitation
bars remedy but does not extinguish the right” reflects a balance between
the interests of plaintiffs and defendants. It provides finality to legal
proceedings while ensuring that substantive rights are not unjustly
destroyed. However, the law is flexible in allowing extensions in cases of
fraud, disability, or acknowledgment to ensure equity and justice.

29. Discuss 'inherent powers' of civil court.

Inherent Powers of Civil Courts

The inherent powers of civil courts refer to those powers that are not
explicitly conferred by the Civil Procedure Code (CPC), 1908, but are
necessary for the court to fulfill its duties, ensure justice, and prevent
abuse of its process. These powers are recognized under Section 151 of
the CPC.

Provision under CPC

 Section 151 of the CPC states:

o "Nothing in this Code shall be deemed to limit or otherwise

affect the inherent power of the court to make such orders as
may be necessary for the ends of justice or to prevent abuse
of the process of the court."

Characteristics of Inherent Powers

 1. Supplementary in Nature:

o Inherent powers are supplementary to the specific provisions

of the CPC and are used when no specific remedy is provided
under the Code.

2. Ensuring Justice:

o The powers are exercised to meet the ends of justice,

especially in situations where procedural laws are silent.

3. Preventing Abuse:

o Courts use inherent powers to prevent misuse or abuse of

legal processes by litigants.

4. Discretionary:

o These powers are discretionary and must be exercised

judiciously and sparingly.

5. Not Overriding Specific Provisions:

o Inherent powers cannot override or contradict express

provisions of the CPC.

Scope of Inherent Powers

1. Ends of Justice:

o Inherent powers allow the court to act in ways that promote

substantive justice even when no explicit provision exists in
the CPC.

2. Preventing Abuse of Process:

o Courts use these powers to prevent frivolous, vexatious, or

oppressive litigation.

3. Interlocutory Orders:

o Courts can pass interim orders to preserve the subject matter

of the suit or protect the rights of parties until the matter is
finally adjudicated.

4. Correction of Errors:

o Courts can use inherent powers to correct errors or procedural

lapses that may occur during the trial.

5. Stay of Proceedings:
 o Inherent powers can be invoked to stay proceedings in
exceptional circumstances where continuing them would
result in injustice.

Examples of Inherent Powers

1. Reopening a Case:

o If a judgment is obtained by fraud, the court can set it aside

using its inherent powers, even if no specific provision allows
for this.

2. Adjournment Beyond Rules:

o In rare cases, the court may grant adjournments beyond the

limits prescribed in the CPC if it is in the interest of justice.

3. Restoration of Suit:

o If a suit is dismissed for default, the court can restore it using

inherent powers to ensure justice.

4. Consolidation of Suits:

o To avoid conflicting judgments and save time, the court can

consolidate suits involving the same subject matter.

5. Amendment of Orders:

o The court may modify or amend its orders to correct

accidental omissions or clerical errors.

Judicial Precedents

1. Manohar Lal v. Seth Hiralal (AIR 1962 SC 527):

o The Supreme Court held that inherent powers under Section

151 can be exercised to meet the ends of justice or to prevent
abuse of process.

2. Arjun Singh v. Mohindra Kumar (AIR 1964 SC 993):

o The court emphasized that inherent powers must be exercised

sparingly and in cases where no specific provision exists.

3. Krishna Rao v. Shankara Reddy (AIR 1982 SC 722):

o The court ruled that inherent powers cannot be invoked in

matters explicitly covered by the CPC.
 4. K.K. Velusamy v. N. Palanisamy (2011):

o The Supreme Court held that inherent powers allow the court
to do justice in situations not specifically covered by the
procedural rules.

Limitations of Inherent Powers

1. Cannot Contradict Express Provisions:

o Inherent powers cannot be used in violation of any specific

provision of the CPC.

2. Not a Substitute for Specific Procedures:

o They cannot be invoked when an alternative remedy or

procedure exists under the CPC.

3. Sparingly Used:

o Courts are cautious in using inherent powers to avoid misuse

or unnecessary intervention.

4. Subject to Judicial Review:

o The exercise of inherent powers is subject to scrutiny by

appellate courts to ensure fairness.

The inherent powers of civil courts under Section 151 of the CPC are
vital to ensure justice and prevent procedural rigidity from hindering fair
outcomes. These powers are supplementary to the provisions of the CPC,
allowing courts to address situations where no specific remedy is
available. However, they must be exercised cautiously, within the bounds
of law, and only when it is necessary to achieve justice or prevent abuse
of process. This balance ensures the effective and equitable functioning of
the judicial system.

30. What are the basic rules of Pleading? When can the leave to amend
the pleading be granted?

Basic Rules of Pleading

Pleadings are the foundational documents in a civil case, comprising the

plaint (filed by the plaintiff) and the written statement (filed by the
defendant). The rules governing pleadings are outlined under Order VI of
the Civil Procedure Code (CPC), 1908.
1. Definition of Pleading

 Order VI, Rule 1 of CPC: Pleading includes the plaint and the
written statement.

 Pleadings are meant to state material facts, claims, and defenses in

a concise manner to clarify the issues for trial.

2. Basic Rules of Pleading

1. Facts, Not Law:

o Pleadings must state only the material facts of the case, not
the law or evidence (Order VI, Rule 2).

o For example: "The defendant borrowed INR 50,000 and failed

to repay" is sufficient; citing the legal provisions regarding
breach of contract is unnecessary.

2. Material Facts Only:

o Only facts essential to the claim or defense should be

included, avoiding irrelevant or immaterial details.

3. Conciseness:

o The language should be clear, concise, and devoid of

unnecessary repetition or verbose content.

4. No Evidence:

o Pleadings should not include evidence. For example,

mentioning the names of witnesses or quoting statements is
unnecessary at the pleading stage.

5. Consistency:

o The facts stated in the pleading should not contradict each

other.

6. Specific Denials:

o If a party denies an allegation, it must be specific. A general

denial is considered as an admission (Order VIII, Rule 3).

7. Particulars of Fraud, Misrepresentation, or Undue Influence:

o When alleging fraud, misrepresentation, or undue influence,

detailed particulars must be provided (Order VI, Rule 4).

8. Alternative and Inconsistent Pleas:

 o Alternative or inconsistent claims or defenses can be included
but must be stated clearly and separately.

9. Amendments Allowed:

o Pleadings can be amended with the court’s permission to

correct errors or add facts necessary for determining the real
controversy.

Amendment of Pleadings

The amendment of pleadings is governed by Order VI, Rule 17 of the

CPC. It allows a party to amend their pleadings with the court's
permission.

When Leave to Amend Pleadings May Be Granted

1. For Determining Real Questions of Controversy:

o The court allows amendments that help determine the actual

issues in dispute between the parties.

2. To Correct Errors or Deficiencies:

o Amendments may be granted to correct typographical errors,

clarify ambiguous statements, or address omissions.

3. To Avoid Multiplicity of Proceedings:

o If the amendment avoids the need for filing a separate suit, it

is generally allowed.

4. No New Cause of Action:

o Amendments are permitted provided they do not introduce a

completely new and inconsistent cause of action or change
the nature of the suit.

5. Before Trial Commences:

o Amendments are more liberally allowed before the

commencement of the trial. Post-trial amendments are
permitted only under exceptional circumstances.

6. In Case of Fraud or Misrepresentation:

 o When fraud, misrepresentation, or similar issues are
discovered after the pleadings are filed, the court may permit
amendments to include such allegations.

7. Court's Discretion:

o The court exercises its discretion while considering factors like

fairness, avoidance of delay, and whether the amendment
prejudices the opposite party.

When Leave to Amend May Be Refused

1. After Substantial Delay:

o If the application for amendment is made after an inordinate

delay without valid justification.

2. Introduction of a New Cause of Action:

o Amendments that alter the fundamental nature of the case

are generally not allowed.

3. Prejudice to the Opposite Party:

o If the amendment unfairly disadvantages the opposite party, it

may be rejected.

4. Bad Faith:

o Amendments sought with malicious intent, such as to delay

proceedings or harass the other party, are disallowed.

5. Barred by Limitation:

o If the amendment seeks to include claims or defenses that are

time-barred under the Limitation Act.

Judicial Precedents

1. L.J. Leach & Co. Ltd. v. Jardine Skinner & Co. (AIR 1957 SC
357):

o The Supreme Court held that amendments should be allowed

if they enable the court to decide the real controversy
between the parties, provided no injustice is caused.

2. Ganesh Trading Co. v. Moji Ram (AIR 1978 SC 484):

 o The court ruled that procedural laws are meant to advance
justice. Amendments should not be disallowed on technical
grounds if they serve the interest of justice.

3. Revajeetu Builders v. Narayanaswamy (2009):

o The Supreme Court laid down key considerations for allowing

amendments:

 The nature of the amendment.

 Its impact on the other party.

 The stage of proceedings.

 Whether the amendment promotes justice or causes

prejudice.

The rules of pleading ensure that the parties present their case clearly,
concisely, and fairly to avoid unnecessary complications during trial. The
power to amend pleadings reflects the flexibility of procedural law to
adapt to circumstances that may arise after a case is initiated. Courts,
while exercising discretion, must balance the principles of justice, fairness,
and efficiency in allowing or rejecting amendments.

31. What is the difference between revision and review?

Difference Between Revision and Review

Revision and Review are distinct remedies available under the Civil
Procedure Code (CPC), 1908, to address errors in judicial decisions.
While both aim to correct mistakes, they differ in their scope, purpose,
and application.

1. Meaning

 Review:

o A review is a process by which a court re-examines its own

judgment or order to correct an error apparent on the face of
the record.

o Governed by Section 114 and Order XLVII of CPC.

 Revision:

o Revision is a process by which a higher court examines the

record of a case decided by a subordinate court to ensure that
no jurisdictional or procedural error has occurred.
 o Governed by Section 115 of CPC.

2. Purpose

 Review:

o Corrects errors or omissions made by the court itself in its

judgment or order.

 Revision:

o Ensures that the subordinate court has not exceeded its

jurisdiction or acted with material irregularity.

3. Who Can File?

 Review:

o Filed by an aggrieved party dissatisfied with the decision of

the court that passed the judgment or order.

 Revision:

o Usually initiated by an aggrieved party but can also be

initiated by the revisional court suo motu.

4. Nature of Power

 Review:

o It is a discretionary power of the court to reconsider its own

decision.

 Revision:

o It is a supervisory power of a higher court to examine the

decisions of a subordinate court.

5. Jurisdiction

 Review:

o The court that passed the original judgment or order has the
power to review it.

 Revision:
 o Only a High Court or certain designated superior courts have
the power to revise decisions of subordinate courts.

6. Grounds

 Review:

o The grounds for review are limited and include:

 Discovery of new and important evidence not within

knowledge at the time of the decision.

 Error apparent on the face of the record.

 Any other sufficient reason.

 Revision:

o Grounds for revision are broader and include:

 Jurisdictional error (e.g., a court acted beyond its

authority).

 Material irregularity in procedure.

 Failure to exercise jurisdiction.

7. Scope

 Review:

o Limited to correcting errors apparent on the face of the record

and does not allow re-hearing of the entire case.

 Revision:

o Broader in scope, allowing examination of the correctness,

legality, and propriety of the subordinate court's order.

8. Stage of Filing

 Review:

o Filed after the judgment or order is passed and within the

prescribed limitation period.

 Revision:
 o Filed after a final or interlocutory order of the subordinate
court when no appeal lies against such an order.

9. Appeals

 Review:

o The party dissatisfied with the result of a review can appeal if

an appeal is allowed under the law.

 Revision:

o Generally, no further revision is permitted after the High Court

has exercised its revisional jurisdiction.

10. Examples

 Review:

o If a court dismisses a suit due to a clerical mistake in

understanding the facts, the party may seek a review.

 Revision:

o If a subordinate court wrongly assumes jurisdiction over a

case that it is not competent to try, the party may seek
revision from the High Court.

Judicial Precedents

1. Ajit Kumar Rath v. State of Orissa (1999):

o The Supreme Court held that the power of review is extremely

limited and confined to errors apparent on the face of the
record.

2. Hari Shankar v. Rao Girdhari Lal Chowdhury (1962):

o Clarified that revisional jurisdiction is supervisory and not

appellate, focusing on jurisdictional errors.

Comparison Table

Aspect Review Revision

Provision Section 114 and Order XLVII of Section 115 of CPC

Aspect Review Revision

CPC

Corrects errors in the same Supervises decisions of

Purpose
court subordinate courts

The same court that passed the

Authority High Court or superior courts
order

Limited to errors apparent on Broader, includes procedural

Scope
the record irregularities

New evidence, error on record, Jurisdictional errors, material

Grounds
sufficient reason irregularities

Nature of
Discretionary Supervisory
Power

While review focuses on correcting errors within the same court to ensure
justice, revision is a supervisory mechanism for higher courts to oversee
subordinate courts' adherence to legal principles and jurisdictional limits.
Both remedies play a crucial role in maintaining the fairness and integrity
of judicial processes, but their scope and purpose are distinctly defined
under the CPC.

31.What do you mean by Summon? What are its essential elements? State
in brief various modes of service of summon on defendant.

Summon: Definition and Meaning

A summon is a legal document issued by a court directing a person to

appear before it at a specified time and place. It is primarily used to notify
the defendant about the initiation of a legal proceeding and to ensure
their presence for the trial. Summons are governed by Order V of the
Civil Procedure Code (CPC), 1908.

Essential Elements of a Summon

A valid summon must contain the following essential elements:

1. Title of the Case:

o The name of the court issuing the summon and the title of the
suit or case.

2. Case Number:
 o The unique number assigned to the case for identification.

3. Names and Addresses:

o The names of the parties involved in the case, particularly the

plaintiff and the defendant.

4. Purpose of the Summon:

o A clear statement of the purpose, such as to appear and

answer the claims made in the suit.

5. Date and Time of Appearance:

o The specific date, time, and place where the defendant is

required to appear in court.

6. Seal of the Court:

o The official seal of the issuing court, validating the document.

7. Signature of the Judge/Officer:

o The summon must be signed by the judge or an authorized

officer of the court.

8. Consequences of Non-Appearance:

o A statement mentioning the consequences of failing to appear

in court, such as an ex-parte judgment.

Modes of Service of Summon

The CPC provides multiple modes for serving summons on the

defendant to ensure proper communication. These modes are discussed
under Order V of the CPC:

1. Personal Service (Rule 10)

 The summon is delivered personally to the defendant by a process

server or an officer of the court.

 The person serving the summon must obtain the signature of the
defendant as proof of service.

2. Service on Agent (Rule 12)

 If the defendant has an authorized agent to receive summons, it can

be served on that agent.

3. Service by Affixture (Rule 17)

  If the defendant cannot be found or refuses to accept the summon,
it can be affixed on the outer door or another conspicuous part of
the defendant's residence.

4. Service by Registered Post or Courier (Rule 19A)

 The summon may be sent to the defendant through registered post

or an authorized courier service with acknowledgment due.

5. Service on Government Employees (Rule 27)

 For government employees, the summon is sent to the head of the

department or office where the defendant is employed.

6. Service on Corporations or Companies (Rule 28)

 The summon is served on the principal officer of the company or left

at its registered office.

7. Substituted Service (Rule 20)

 If personal service is not possible, the court may order substituted

service, such as:

o Publication in Newspapers: Issuing a public notice in a

widely circulated newspaper.

o Other Means: Any other method the court deems

appropriate.

8. Service on Minors and Persons with Disabilities (Rule 14)

 For minors or persons of unsound mind, summons are served on

their guardian or legal representative.

9. Service Outside Jurisdiction (Rule 21)

 If the defendant resides outside the court's jurisdiction, the summon

is sent to the court within whose jurisdiction the defendant resides.

Judicial Precedents

1. Muthia v. Ramnathan (1918):

o The court emphasized the importance of proper service of

summons to ensure fair trial procedures.

2. D.R. Industries v. Metallurgical Engg. Works (1985):

o Held that failure to serve summons in a prescribed manner

may invalidate subsequent proceedings.
Importance of Summons

 Summons are crucial to ensure that the defendant is aware of the

legal action and has an opportunity to respond.

 Proper service of summons ensures procedural fairness and

prevents ex-parte judgments unless justified.

Summons are the starting point for ensuring the participation of

defendants in legal proceedings. They must contain all essential elements,
and the service must be carried out according to the rules laid out in the
CPC to avoid procedural lapses. Courts are vigilant in ensuring that the
service of summons is effective and fair, balancing the interests of both
the plaintiff and the defendant.

32.What provisions are made with reference to legal disability under the
Limitation Act? Describe.

Provisions Related to Legal Disability Under the Limitation Act

The Limitation Act, 1963, provides special provisions for individuals who
are unable to exercise their legal rights due to a legal disability. These
provisions aim to ensure that such persons are not unfairly prejudiced by
the strict application of limitation periods.

Key Provisions:

1. Legal Disability (Section 6)

 If a person entitled to file a suit, appeal, or application is under a

legal disability at the time the right accrues, the limitation period
begins to run only after the disability ceases.

Who is Considered Under Legal Disability?

 Minors (persons below 18 years of age).

 Persons of Unsound Mind (unable to understand and manage

their affairs).

 Persons under a Court-Declared Legal Incapacity.

Key Points of Section 6:

1. Starting of Limitation Period:

 o The limitation period starts when the person ceases to be
under the disability (e.g., attains majority or regains mental
capacity).

2. Time Cap:

o The person must file the suit within the standard limitation
period from the date the disability ceases.

3. Multiple Disabilities:

o If there are successive disabilities (e.g., a minor who becomes

mentally incapacitated), the limitation period starts after the
last disability ends.

4. Legal Representatives:

o If the person under a disability dies while still under the

disability, their legal representatives can file the suit within
the standard limitation period from the date of the person’s
death.

2. Disability of Both Plaintiff and Defendant

 If both the plaintiff and defendant are under legal disability, the
limitation period is extended only for the plaintiff, as they are
responsible for initiating the suit.

3. Applicability of Section 6

 Applies to suits, appeals, and applications under civil law.

 Does not apply to criminal proceedings.

Exceptions to Section 6

1. Legal Representatives or Guardians:

o If a guardian or legal representative is present and competent

to act on behalf of the person with a disability, the limitation
period runs normally, even if the person is under a disability.

2. Time Bar Under Section 6(3):

 o Even with a legal disability, the maximum extension allowed is
three years after the disability ceases. This prevents
indefinite delays.

3. Barred Claims:

o A claim already time-barred before the person came under a

disability remains barred.

4. Disability Ceasing During Litigation

 If a person under a disability regains capacity during the pendency

of litigation, they may continue the case on their own, subject to
court approval.

Other Related Provisions

Section 7: Disability in Case of Co-Plaintiffs

 If one of the co-plaintiffs is under a legal disability, the limitation

period for filing the suit does not apply to them until the disability
ceases.

 However, this does not delay the filing of the suit for other co-
plaintiffs.

Section 8: Special Exclusion

 Sections 6 and 7 do not apply to suits related to immovable property

under adverse possession. The limitation period continues to run
even if the rightful owner is under a disability.

Illustrations

1. Illustration 1:

o A minor is entitled to recover property. The limitation period of

12 years begins only when the minor attains majority at the
age of 18.

2. Illustration 2:

o A person of unsound mind is entitled to sue for damages. The

limitation period starts when they regain mental capacity.

3. Illustration 3:
 o A person under a disability dies before filing a suit. Their legal
heirs have the remaining period (or a maximum of three
years) to file the suit.

Judicial Precedents

1. Kasturi Devi v. State of Uttar Pradesh (AIR 1965 SC 207):

o The court held that legal disability provisions ensure justice by

allowing the person to assert their rights after the disability
ceases.

2. Nanak Chand v. Ram Narain (AIR 1970 SC 104):

o The Supreme Court clarified that legal representatives must

act within the limitation period once the disability ceases.

The provisions regarding legal disability under the Limitation Act

ensure that vulnerable individuals, such as minors and those of unsound
mind, are not disadvantaged by procedural time limits. These provisions
strike a balance between protecting such individuals and preventing
indefinite delays, thereby maintaining fairness in the administration of
justice. However, they must be invoked carefully, keeping the limitations
and exceptions in mind.

33.What are the consequences of non-appearance of a plaintiff, defendant

or both the parties, when the suit in call for hearing. Briefly state the
remedies available to person aggrieved by ex-parte decree.

Consequences of Non-Appearance of Parties During Hearing

Under the Civil Procedure Code (CPC), 1908, non-appearance of

parties at the time when a suit is called for hearing can lead to various
consequences, depending on whether the plaintiff, the defendant, or both
are absent.

1. Non-Appearance of the Plaintiff

 Order IX, Rule 8:

o If the plaintiff does not appear when the case is called for
hearing, the court may:

 Dismiss the suit for default.

Consequences:

 The plaintiff’s case is dismissed, and no decision on the merits is

made.

 The dismissal does not bar the plaintiff from filing a fresh suit on the
same cause of action, provided it is within the limitation period.

Remedy for Plaintiff:

1. Restoration of Suit (Order IX, Rule 9):

o The plaintiff can apply for restoration of the suit if they can
show sufficient cause for their absence. This application must
be filed within 30 days of the dismissal.

2. Non-Appearance of the Defendant

 Order IX, Rule 6:

o If the defendant does not appear when the case is called for
hearing, the court may:

 Proceed ex-parte and pass an ex-parte decree based

on the plaintiff’s pleadings and evidence.

Consequences:

 The defendant loses the opportunity to present their case, leading

to an ex-parte decree in favor of the plaintiff.

Remedy for Defendant:

The defendant can challenge the ex-parte decree through the following
remedies:

1. Set Aside Ex-Parte Decree (Order IX, Rule 13):

o The defendant can apply to the same court that passed the
ex-parte decree to set it aside if they can prove:

 Sufficient cause for non-appearance.

 The application must be filed within 30 days from the

date of knowledge of the decree.

2. Appeal (Section 96(2)):

o The defendant can file a regular appeal challenging the ex-

parte decree on its merits.

3. Review (Section 114 and Order XLVII, Rule 1):

 o The defendant can seek a review of the decree if there is an
error apparent on the face of the record.

4. Filing a Fresh Suit:

o In rare circumstances, the defendant can file a separate suit

to contest the decree, particularly if it was obtained by fraud.

3. Non-Appearance of Both Plaintiff and Defendant

 Order IX, Rule 3:

o If neither the plaintiff nor the defendant appears when the

case is called for hearing, the court may:

 Dismiss the suit for default.

Consequences:

 No decision is made on the merits of the case.

 The plaintiff may still file a fresh suit on the same cause of action,
subject to the limitation period.

Remedy:

1. Restoration of Suit (Order IX, Rule 4):

o The plaintiff can apply for restoration of the suit, providing

sufficient cause for their absence.

o The application must be made within 30 days of dismissal.

Remedies for Aggrieved Persons Against Ex-Parte Decree

An ex-parte decree is passed when the defendant does not appear in

court despite proper service of summons. The defendant has the following
remedies:

1. Application to Set Aside Ex-Parte Decree (Order IX, Rule 13)

 The defendant can apply to the same court that passed the decree
to have it set aside.

 Grounds for Setting Aside:

1. Non-service or improper service of summons.

2. Sufficient cause for non-appearance (e.g., illness, unavoidable

circumstances).
  Time Limit:

o The application must be filed within 30 days from the date of

knowledge of the decree.

2. Filing an Appeal (Section 96(2))

 The defendant can file an appeal before a higher court against the
ex-parte decree.

 Appeals can be filed on substantive grounds, such as errors in law or

facts.

3. Filing a Review Petition (Section 114 and Order XLVII, Rule 1)

 A review petition can be filed in the same court if there is an error

apparent on the face of the record, or new evidence has been
discovered that could not have been produced earlier.

4. Filing a Suit to Set Aside the Decree

 In exceptional cases where the decree was obtained by fraud,

misrepresentation, or collusion, the defendant can file an
independent suit to set aside the ex-parte decree.

Judicial Precedents

1. Sangram Singh v. Election Tribunal (AIR 1955 SC 425):

o The Supreme Court emphasized that procedural laws are

meant to aid justice and not to punish parties for technical
lapses.

2. Bhagmal v. Kunwar Lal (AIR 2010 SC 2991):

o The court held that an ex-parte decree can be set aside if the
defendant proves sufficient cause for non-appearance.

The consequences of non-appearance depend on whether it is the

plaintiff, the defendant, or both who fail to appear. Remedies are provided
under the CPC to ensure fairness and allow aggrieved parties to seek
redress. Courts, while balancing procedural rules and justice, have the
discretion to restore dismissed suits or set aside ex-parte decrees where
valid reasons are demonstrated.

33.What do you mean by Summon? What are its essential elements? State
in brief various modes of service of summon on defendant.
Summon: Meaning

A summon is a formal legal document issued by a court to a party

(plaintiff, defendant, or a witness) requiring them to appear in court at a
specified date and time. It serves as a notification and ensures the
presence of the party in legal proceedings. Summons are governed by
Order V of the Civil Procedure Code (CPC), 1908.

Essential Elements of a Summon

For a summon to be valid and enforceable, it must contain the following

elements:

1. Title of the Case:

o The names of the court and the parties involved in the case.

2. Case Number:

o A unique identification number assigned to the case.

3. Details of the Recipient:

o The name and address of the person (defendant or witness) to

whom the summon is issued.

4. Purpose of Summon:

o A clear statement of the reason for the summon (e.g., to

appear and answer the claim, or to provide evidence).

5. Date, Time, and Place:

o The exact date, time, and location where the recipient is

required to appear in court.

6. Seal of the Court:

o An official stamp or seal of the issuing court to authenticate

the document.

7. Signature of the Judge or Authorized Officer:

o The summon must bear the signature of the judge or court

officer who issued it.

8. Warning or Consequences of Non-Compliance:

o A statement mentioning the consequences of failing to comply

with the summon, such as proceeding ex-parte or issuing a
warrant.
Modes of Service of Summon on Defendant

The CPC provides various methods for serving summons to ensure the
defendant is duly notified. These are explained under Order V of the
CPC:

1. Personal Service (Rule 10)

 The summon is served directly to the defendant by a process server

or an officer of the court.

 The defendant must sign an acknowledgment of receipt.

2. Service Through an Agent (Rule 12)

 If the defendant has an authorized agent for receiving summons, it

can be served on the agent.

3. Service by Affixture (Rule 17)

 If the defendant cannot be located, or refuses to accept the

summon, it can be affixed on:

o The outer door of the defendant’s house.

o A conspicuous part of their workplace or residence.

4. Service by Registered Post or Courier (Rule 19A)

 The summon can be sent via registered post, speed post, or an

authorized courier with acknowledgment due.

 Proof of delivery serves as evidence of service.

5. Substituted Service (Rule 20)

 When personal service is not possible, the court may order

substituted service. Common methods include:

o Publication in Newspapers: Publishing the summon in a

widely circulated newspaper.

o Other Court-Directed Methods: Using any other method

deemed fit by the court.

6. Service on Corporations or Companies (Rule 28)

 For companies, summons can be served on the principal officer,

managing director, or at the registered office.

7. Service on Government Employees (Rule 27)

  If the defendant is a government employee, the summon is served
through the head of their department or office.

8. Service Outside Jurisdiction (Rule 21)

 If the defendant resides outside the jurisdiction of the court, the

summon is sent to the court within whose jurisdiction the defendant
resides for service.

9. Service on Minors or Persons of Unsound Mind (Rule 14)

 Summons are served to the guardian or legal representative of a

minor or a person of unsound mind.

10. Electronic Service (Recent Developments)

 Some courts allow serving summons through electronic means such

as email, WhatsApp, or SMS, provided it ensures the recipient
receives it.

Judicial Precedents

1. Muthiah v. Rangaswami (1918):

o Proper service of summons is essential for a fair trial and

ensures compliance with natural justice.

2. D.R. Industries v. Metallurgical Engineering Works (1985):

o Courts emphasized the need to follow procedural rules strictly

while serving summons to avoid setting aside proceedings
later.

A summon is a critical legal document in ensuring the participation of

parties in a suit. Its proper drafting and service are crucial for the smooth
functioning of judicial proceedings. The CPC provides multiple modes of
service to address practical challenges and ensure that the defendant is
notified effectively. Proper service of summons forms the foundation of a
fair and just trial.

34.Define an injunction and state its kinds. When a temporary injunction

be issued?

Definition of Injunction

An injunction is a judicial order issued by a court directing a party to do

or refrain from doing a particular act. The purpose of an injunction is to
prevent irreparable harm, protect rights, and preserve the status quo until
the matter is finally adjudicated.

Legal Basis

 Governed under Sections 36 to 42 of the Specific Relief Act,

1963, and Order XXXIX of the Civil Procedure Code (CPC),
1908 for temporary injunctions.

Kinds of Injunctions

1. Temporary Injunction:

o A provisional remedy granted to preserve the status quo until

the rights of the parties are finally determined by the court.

o Governed by Order XXXIX, Rules 1 and 2 of CPC.

o Examples:

 Preventing the transfer of property during litigation.

 Stopping the publication of defamatory material

temporarily.

2. Perpetual (or Permanent) Injunction:

o A final order granted after the trial, permanently prohibiting or

compelling a party to do a particular act.

o Governed by Section 38 of the Specific Relief Act, 1963.

o Examples:

 Preventing the use of a trademark by another party

after judgment.

3. Mandatory Injunction:

o A court order compelling a party to perform a specific act or

undo an action already taken.

o Governed by Section 39 of the Specific Relief Act, 1963.

o Examples:

 Requiring the removal of an illegal construction.

4. Restrictive (or Prohibitory) Injunction:

 o An order restraining a party from performing a specific act.

o Examples:

 Stopping encroachment on property.

When Can a Temporary Injunction Be Issued?

A temporary injunction may be issued by the court under the following

circumstances as outlined in Order XXXIX, Rules 1 and 2 of CPC:

Grounds for Issuance:

1. Prima Facie Case:

o The applicant must establish a prima facie case in their favor,

showing that there is a serious question to be tried.

2. Irreparable Injury:

o The applicant must prove that failure to grant the injunction

would cause harm or injury that cannot be adequately
compensated by damages.

3. Balance of Convenience:

o The court must be satisfied that the balance of convenience

lies in favor of granting the injunction, meaning the
inconvenience caused to the applicant if the injunction is not
granted would outweigh the inconvenience to the opposite
party if it is granted.

4. Urgency:

o There must be urgency or imminent harm that requires

immediate judicial intervention.

Situations Where Temporary Injunction Can Be Issued:

1. Property Disputes:

o To prevent the alienation, sale, or destruction of property

involved in the dispute.

2. Protection of Intellectual Property:

o To restrain the infringement of trademarks, copyrights, or

patents.

3. Defamation:
 o To stop the publication of defamatory material pending trial.

4. Preventing Breach of Contract:

o To restrain one party from committing a breach of contract.

5. Environmental Protection:

o To prevent actions that may cause environmental harm or

damage.

Procedure for Granting Temporary Injunction:

1. Application:

o The party seeking the injunction must file an application

supported by an affidavit detailing the grounds.

2. Notice to the Opposite Party:

o Generally, notice is issued to the opposite party, but in

exceptional cases, the court may grant an ex-parte
temporary injunction (Order XXXIX, Rule 3).

3. Hearing:

o The court hears both parties and decides whether the

injunction is necessary.

4. Conditions:

o The court may impose conditions, such as requiring the

applicant to furnish security.

Judicial Precedents

1. Dalpat Kumar v. Prahlad Singh (AIR 1993 SC 276):

o The Supreme Court emphasized the three essential elements

for granting a temporary injunction: prima facie case, balance
of convenience, and irreparable injury.

2. Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995):

o The court held that injunctions should not be granted unless

the plaintiff has established a clear case and there is an
imminent need for protection.

3. American Cyanamid Co. v. Ethicon Ltd. (1975):

 o Established the principle of assessing the balance of
convenience before granting an injunction.

An injunction is a powerful judicial tool to prevent irreparable harm and

protect rights during litigation. Temporary injunctions are particularly
important for preserving the status quo and preventing harm until a final
decision is made. Courts exercise discretion carefully, ensuring that the
principles of fairness and justice are upheld while granting such relief.

35.What do you mean by reference? When can a reference be made by

subordinate court to High Court? Distinguish between reference, review
and revision.

Meaning of Reference

A reference is a procedural mechanism under Section 113 of the Civil

Procedure Code (CPC), 1908, where a subordinate court refers a case
to the High Court for its opinion on a substantial question of law. This
is used when the subordinate court encounters a legal issue that it cannot
decide independently.

When Can a Reference Be Made by a Subordinate Court to the

High Court?

The conditions for making a reference are governed by Section 113 and
Order XLVI of the CPC:

1. Existence of a Substantial Question of Law:

o The subordinate court must believe that the case involves a

substantial question of law that is difficult or requires
clarification.

2. Doubt About Validity of a Legislative Act:

o If the validity of an Act, Ordinance, or Regulation is

questioned, and the subordinate court believes it is invalid but
lacks the authority to decide, it can refer the matter to the
High Court.

3. No Appeal Allowed:

o Reference can only be made in cases where no appeal lies

directly to the High Court.

4. Court's Discretion:
 o The subordinate court has discretion to decide whether or not
to make a reference, but it must provide valid reasons.

Procedure for Reference:

1. The subordinate court formulates the question of law and states its
opinion.

2. The question is referred to the High Court.

3. The High Court hears the reference and provides its decision, which
the subordinate court must follow.

Distinction Between Reference, Review, and Revision

Aspect Reference Review Revision

Section 113 and Section 114 and

Provision Section 115 of CPC
Order XLVI of CPC Order XLVII of CPC

Made by a Filed in the same Filed in a higher court

Authorit
subordinate court court that passed to examine a lower
y
to the High Court. the order. court's order.

To seek
To correct errors To examine
clarification on a
Purpose apparent on the jurisdictional errors or
substantial
face of the record. material irregularities.
question of law.

Initiated by an
Initiated by the Initiated by an aggrieved party or suo
Initiation
subordinate court. aggrieved party. motu by the revisional
court.

Limited to Broader, examining

Limited to
Scope correcting errors in procedural and
questions of law.
the same court. jurisdictional aspects.

Supervisory in nature;
Advisory in nature; Modifies or corrects
Nature corrects errors in the
binding on the the same court's
of Order subordinate court's
subordinate court. decision.
decision.

No further revision is
Reference An appeal may lie
allowed after the
Appeal decisions are not against a reviewed
revisional court's
appealable. decision.
decision.
Aspect Reference Review Revision

Correction of Subordinate court

Example Doubt on validity
typographical or exceeding its
s of legislation.
clerical errors. jurisdiction.

Comparison in Detail

1. Reference:

o Example: A subordinate court is unsure about the

constitutional validity of a state law. It refers the question to
the High Court for its opinion.

2. Review:

o Example: A court accidentally omits a critical point of law or

fact in its judgment. The aggrieved party files for a review in
the same court to correct the mistake.

3. Revision:

o Example: A lower court assumes jurisdiction over a case it is

not competent to try. The High Court intervenes through
revision to correct the error.

Judicial Precedents

1. Keshav Mills Co. Ltd. v. CIT (AIR 1965 SC 1636):

o The Supreme Court clarified that reference is confined to

substantial legal questions and is not intended for factual
disputes.

2. Kamala Mills Ltd. v. State of Bombay (AIR 1965 SC 1942):

o It was held that courts must exercise caution in making

references to prevent unnecessary delays.

3. Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909):

o Established that review is limited to correcting errors apparent

on the face of the record.

4. Hari Shankar v. Rao Girdhari Lal Chowdhury (AIR 1962 SC

78):
 o Clarified that revision is a supervisory power to correct
jurisdictional or procedural irregularities.

36.. Summarize the provisions of attachment under the civil procedure

code. State exceptions if any.

Provisions of Attachment Under the Civil Procedure Code (CPC)

Attachment refers to the legal process by which a court orders the seizure
or taking custody of a property to enforce a decree or prevent its
alienation. The provisions regarding attachment are governed by Order
XXI of the Civil Procedure Code, 1908 (for execution of decrees) and
Order XXXVIII (for attachment before judgment).

1. Types of Attachment

1. Attachment Before Judgment:

o Governed by Order XXXVIII, Rule 5-13.

o It is a preventive measure to ensure that the defendant does

not dispose of or alienate property to defeat the plaintiff’s
claim.

2. Attachment in Execution of Decree:

o Governed by Order XXI, Rules 41-59.

o It is a post-judgment measure to enforce a decree by

attaching the property of the judgment debtor.

Provisions of Attachment

A. Attachment Before Judgment

1. Order for Attachment:

o The plaintiff must file an application showing:

 A prima facie case.

 The defendant is likely to dispose of or alienate the

property to obstruct the execution of a decree.

2. Nature of Property Attached:

o Movable or immovable property, including debts and

actionable claims.
 3. Security in Lieu of Attachment:

o The defendant may furnish security to avoid attachment.

4. Duration:

o The attachment remains in effect until the decree is satisfied

or set aside.

B. Attachment in Execution of Decree

1. Scope:

o Applicable after a court passes a decree requiring payment of

money or enforcement of rights.

2. Procedure:

o The decree-holder files an application to execute the decree.

o The court issues a warrant of attachment.

3. Notice to Judgment Debtor:

o The court may issue a notice to the judgment debtor before

proceeding with the attachment.

4. Modes of Attachment:

o Movable Property (Order XXI, Rule 43):

 Seizure of the property and inventory preparation by a

court officer.

o Immovable Property (Order XXI, Rule 54):

 Proclamation of attachment by affixing the notice on the

property and publishing it in a local newspaper.

o Attachment of Debt (Order XXI, Rule 46):

 Directing third parties who owe money to the judgment

debtor to pay the court instead.

o Attachment of Salary (Order XXI, Rule 48):

 Deduction from the judgment debtor’s salary.

Exceptions to Attachment
Certain types of property are exempted from attachment under Section
60 of the CPC:

1. Absolute Exemptions

 Property that cannot be attached under any circumstances:

o Necessary wearing apparel, cooking vessels, beds, and

personal necessities of the judgment debtor and their
dependents.

o Tools of artisans and instruments used for earning livelihood.

o Houses and buildings occupied by agriculturalists.

o Agricultural produce necessary for the livelihood of the debtor.

o Salary to the extent of the first INR 1,000 and two-thirds of the
remainder (subject to exceptions).

2. Conditional Exemptions

 Property that may be exempted under specific conditions:

o Provident fund, pension, and gratuities (except under certain

decrees like maintenance or debt to the government).

o Stipends and allowances of military and civil pensioners.

Key Safeguards

1. Notice to Opposite Party:

o In attachment before judgment, the defendant is often given

an opportunity to defend or provide security.

2. Release from Attachment:

o If the decree is satisfied, withdrawn, or set aside, the

attachment is released.

3. Attachment Without Sale:

o Attachment does not automatically mean sale. The court may

decide on further actions if the debtor fails to comply with the
decree.

Judicial Precedents

1. Sundaram Finance Ltd. v. NEPC India Ltd. (1999):

 o Emphasized that attachment before judgment is an
extraordinary measure to prevent frustration of the decree.

2. Radha Krishan v. Ludhyan (1985):

o The court held that exempted properties under Section 60

cannot be attached.

37. What do you understand by written statement? Distinguish between

counter claim and set off.

Written Statement: Meaning

A written statement is the response or reply filed by the defendant in a

civil suit, addressing the claims made by the plaintiff in the plaint. It is
governed by Order VIII of the Civil Procedure Code (CPC), 1908.

 Purpose:

o To admit or deny the allegations in the plaint.

o To state the defendant's defenses.

o To raise objections or counterclaims, if any.

Key Features of a Written Statement

1. Time Limit:

o It must be filed within 30 days from the date of service of the

summons, extendable up to 90 days at the court’s discretion.

2. Denial of Allegations:

o Specific denials must be made. A general denial is considered

an admission under Order VIII, Rule 5.

3. Inclusion of New Facts:

o The defendant can bring in facts that may defeat the plaintiff’s
claim (Order VIII, Rule 2).

4. Counterclaim or Set-Off:

o The defendant may include a counterclaim or set-off in the

written statement.

5. Verification:

o The written statement must be signed and verified by the

defendant as required under Order VI, Rule 15.
Distinction Between Counterclaim and Set-Off

Aspect Counterclaim Set-Off

A counterclaim is a cross-claim A set-off is a legal claim

by the defendant against the where the defendant seeks
Definition plaintiff, arising out of a cause to reduce the plaintiff’s claim
of action independent of the by asserting an existing debt
plaintiff’s claim. owed by the plaintiff.

It is a defensive mechanism
It is a separate and
Nature to reduce or extinguish the
independent claim.
plaintiff’s claim.

The claim may be unrelated to

It must arise out of the same
the plaintiff’s cause of action
Scope transaction or closely
but must fall within the
connected transactions.
jurisdiction of the court.

Legal Governed by Order VIII, Rule Governed by Order VIII,

Basis 6A of CPC. Rule 6 of CPC.

Can be treated as a separate Cannot be treated as a

Independe
suit if the main suit is separate suit; purely
nt Suit
dismissed. defensive.

Monetary Can include monetary or non- Limited to ascertained

Claims monetary claims. monetary claims only.

If the plaintiff sues the

If the plaintiff sues for INR
defendant for breach of
50,000, the defendant may
contract, the defendant may
Illustration claim a set-off of INR 20,000,
file a counterclaim for damages
reducing the payable amount
arising from the plaintiff’s
to INR 30,000.
delay.

Comparison in Detail

1. Counterclaim:

 Example:

o A landlord files a suit against a tenant for unpaid rent. The

tenant files a counterclaim for damages caused by the
landlord’s failure to repair the property.
  Key Features:

o It is treated as a separate suit but is decided alongside the

plaintiff's claim.

o The defendant can claim relief that is broader than a

monetary reduction.

o The counterclaim must be filed before the issues in the main

suit are framed.

2. Set-Off:

 Example:

o A seller sues a buyer for INR 1,00,000 as the price of goods

delivered. The buyer claims a set-off of INR 30,000, which the
seller owes for defective goods.

 Key Features:

o Only ascertained debts or sums of money can be claimed as a

set-off.

o It must arise from the same transaction or a connected one.

o It is purely defensive and does not grant the defendant any

relief beyond reducing the plaintiff’s claim.

Judicial Precedents

1. Laxmidas v. Nanabhai (AIR 1964 SC 11):

o The Supreme Court held that a counterclaim is an

independent cause of action and can survive even if the main
suit is dismissed.

2. Punjab National Bank v. Surendra Prasad Sinha (1992):

o The court clarified that set-off is restricted to ascertained

sums of money arising out of the same transaction.

A written statement is the defendant’s key document in a civil suit,

used to respond to the plaintiff’s allegations and raise defenses. While a
counterclaim is an independent cause of action seeking affirmative
relief, a set-off is purely defensive, aimed at reducing or extinguishing
the plaintiff’s claim. Both provide mechanisms for ensuring justice and
efficiency in litigation but serve distinct purposes and have different
procedural requirements.
38.What do you mean by non-joinder and mis-joinder of parties?

Non-Joinder and Mis-Joinder of Parties

In a civil suit, proper parties must be joined to ensure the effective

resolution of disputes. However, errors in including parties can occur,
leading to non-joinder or mis-joinder of parties. These terms refer to
the incorrect inclusion or exclusion of parties in a suit, governed by Order
I of the Civil Procedure Code (CPC), 1908.

1. Non-Joinder of Parties

 Definition:

o Non-joinder occurs when a person who is necessary or

proper to the suit is not made a party to the proceedings.

o A necessary party is someone without whom the court cannot

pass an effective decree, while a proper party is one whose
presence is necessary to avoid multiplicity of litigation.

 Effect:

o If a necessary party is not joined, the suit may fail.

o If a proper party is not joined, the court may proceed, but it

might lead to incomplete or ineffective adjudication.

 Illustration:

o In a partnership dispute, if all partners are not made parties to

the suit, it constitutes non-joinder.

 Legal Provision:

o Order I, Rule 9: A suit shall not be dismissed solely because

of non-joinder, except for necessary parties.

 Remedy:

o Order I, Rule 10: The court may order the addition of a party
at any stage of the proceedings to rectify non-joinder.

2. Mis-Joinder of Parties

 Definition:

o Mis-joinder occurs when parties are improperly joined in a suit,

i.e., parties who are not necessary or proper are included.
  Effect:

o Mis-joinder does not automatically lead to dismissal of the suit

but can complicate proceedings and may require correction.

 Illustration:

o In a suit for breach of contract, joining unrelated third parties

constitutes mis-joinder.

 Legal Provision:

o Order I, Rule 9: A suit shall not be dismissed solely because

of mis-joinder.

 Remedy:

o The court may order the removal of unnecessary parties at

any stage under Order I, Rule 10(2).

Difference Between Non-Joinder and Mis-Joinder

Aspect Non-Joinder Mis-Joinder

Exclusion of a necessary or Inclusion of unnecessary or

Definition
proper party. improper parties.

May result in dismissal if a Does not lead to dismissal but

Impact
necessary party is excluded. may complicate proceedings.

Legal Order I, Rule 9 (exception for

Order I, Rule 9.
Provision necessary parties).

Adding the omitted party Removing the unnecessary

Correction
under Order I, Rule 10(2). party under Order I, Rule 10(2).

Illustratio Not joining all heirs in a Adding an unrelated third party

n partition suit. in a breach of contract suit.

Key Judicial Precedents

1. Dwijendra Narain v. Joges Chandra (AIR 1924 PC 10):

o The court held that the absence of necessary parties renders

the decree ineffective.

2. Kanakarathanammal v. Loganatha Mudaliar (AIR 1965 SC

271):
 o Clarified that a suit is not dismissed for mis-joinder of parties
unless it causes prejudice.

3. K.K. Aboo v. Balakrishnan (AIR 1988 Ker 234):

o Reaffirmed that the court has discretion to add or remove

parties to rectify non-joinder or mis-joinder

Non-joinder and mis-joinder of parties are procedural errors that can affect
the effectiveness of judicial proceedings. While non-joinder refers to the
omission of necessary or proper parties, mis-joinder involves the inclusion
of irrelevant parties. Both issues can be rectified under Order I, Rule 10
of the CPC, ensuring that justice is not delayed or denied due to
procedural lapses. Courts exercise discretion in such matters, emphasizing
substantive justice over procedural technicalities.

39.What is counter claim?

Counterclaim: Meaning

A counterclaim is a claim made by the defendant against the plaintiff in

a civil suit. It allows the defendant to raise an independent cause of action
against the plaintiff in the same proceedings, thus avoiding the need for a
separate lawsuit. It is governed by Order VIII, Rule 6A to 6G of the
Civil Procedure Code (CPC), 1908.

Key Features of a Counterclaim

1. Independent Cause of Action:

o A counterclaim is not merely a defense but a separate claim

that the defendant could have filed as an independent suit.

2. Scope:

o It can arise out of the same transaction as the plaintiff's claim

or a completely different transaction, provided it is within the
court's jurisdiction.

3. Nature:

o The counterclaim must be legally enforceable and cannot be

frivolous or time-barred.

4. Filing with the Written Statement:

o The counterclaim is usually filed along with the written

statement. However, the court may allow it to be filed later if
justified.
 5. Treated as a Separate Suit:

o A counterclaim is treated as a separate suit for procedural

purposes but is adjudicated along with the main suit.

6. Relief:

o The defendant can seek affirmative relief against the plaintiff

through a counterclaim, such as damages, possession, or
enforcement of rights.

Legal Provisions

Order VIII, Rule 6A: Counterclaim to be Stated

1. The defendant can file a counterclaim against the plaintiff regarding

any claim that:

o Exists at the time of filing the written statement.

o Arises out of the same or a different transaction.

2. The counterclaim must be in respect of a claim over which the court

has jurisdiction.

Order VIII, Rule 6B: Counterclaim to be Distinguished

 The counterclaim must be clearly identified and set out in the

written statement.

Order VIII, Rule 6C: Exclusion of Counterclaim

 If the counterclaim does not arise out of the subject matter of the
suit, the plaintiff may apply to exclude it.

Order VIII, Rule 6D: Stay of Suit

 If the suit is stayed or dismissed, the counterclaim may proceed

independently.

Order VIII, Rule 6E: Reply to Counterclaim

 The plaintiff may file a written statement in reply to the

counterclaim, similar to the procedure for a plaint.

Advantages of Counterclaims

1. Avoids Multiplicity of Proceedings:

 o Both claims (the original suit and the counterclaim) are
adjudicated in the same proceeding, saving time and
resources.

2. Comprehensive Adjudication:

o Ensures that all disputes between the parties are resolved

together.

3. Defendant's Rights:

o Allows the defendant to assert their own claims and seek relief
against the plaintiff.

Illustration

 A landlord files a suit against a tenant for unpaid rent of ₹50,000.

The tenant, in their written statement, files a counterclaim for
₹30,000, alleging damages caused due to the landlord’s failure to
repair the property.

Key Judicial Precedents

1. Laxmidas v. Nanabhai (AIR 1964 SC 11):

o The Supreme Court held that a counterclaim is treated as a

cross-suit and can proceed even if the main suit is dismissed.

2. Ramesh Chand v. Anil Panjwani (2003):

o Clarified that a counterclaim can be filed even after the

written statement, provided it does not prejudice the other
party.

3. Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri (2020):

o The court emphasized the need to file a counterclaim

promptly, to avoid unnecessary delays in proceedings.

Distinction Between Counterclaim and Set-Off

Aspect Counterclaim Set-Off

Independent cause of Defensive mechanism to

Nature
action. extinguish the plaintiff’s claim.

Scope Can arise from any Must arise out of the same
Aspect Counterclaim Set-Off

transaction. transaction.

Relief Seeks affirmative relief Reduces or extinguishes the

Sought against the plaintiff. plaintiff’s claim.

Procedur Governed by Order VIII,

Governed by Order VIII, Rule 6.
e Rule 6A.

A counterclaim is a vital procedural tool that empowers the defendant to

assert their own claims and seek relief within the same suit. It ensures
efficiency, prevents multiplicity of litigation, and allows for a
comprehensive resolution of disputes. Courts encourage its use to save
judicial time while ensuring justice for both parties.

39.Define decree and analyse its essential elements. Distinguish between

preliminary and final decree.

Definition of Decree

A decree is a formal judicial decision by a civil court that conclusively

determines the rights of the parties with respect to the matters in
controversy in a suit. It is defined under Section 2(2) of the Civil
Procedure Code (CPC), 1908.

Essential Elements of a Decree

For an order to qualify as a decree under the CPC, it must satisfy the
following essential elements:

1. Adjudication:

o There must be a formal judicial determination of rights by a

court.

o Adjudication involves the application of judicial mind to

resolve disputes.

2. Suit:

o The adjudication must arise from a suit instituted under the

CPC.

3. Rights of Parties:

o The decree must conclusively determine the substantive

rights of the parties involved.
 4. Conclusive Determination:

o A decree must completely and finally settle the rights of the

parties on all or some of the matters in controversy.

5. Formal Expression:

o The decision must be formally expressed and written, signed

by the judge, and sealed by the court.

6. Legal Determination:

o It must be a decision made according to law.

Types of Decrees

Decrees can be categorized into the following:

1. Preliminary Decree:

o A decree that decides the rights of parties but does not

completely dispose of the suit.

o It leaves some further proceedings to be carried out before

the final decision.

o Examples:

 Decree in a partition suit determining the shares of co-

owners.

 Decree in a mortgage suit determining the amount

payable.

2. Final Decree:

o A decree that conclusively determines all the issues in a suit

and leaves nothing further to be decided by the court.

o Examples:

 Decree for possession or payment after all procedural

steps have been completed.

3. Partially Preliminary and Partially Final Decree:

o A decree that is preliminary with respect to some matters and

final with respect to others.

o Example:
  A decree in a suit for possession where the ownership is
decided (final) but mesne profits are left for
determination (preliminary).

Distinction Between Preliminary and Final Decree

Aspect Preliminary Decree Final Decree

Decides the rights of parties Conclusively determines the

Definition but does not completely entire matter, leaving nothing
dispose of the suit. further to be decided.

Requires further proceedings

Ends the suit entirely with no
Purpose to completely dispose of the
further action required.
suit.

Partition decree determining Partition decree distributing

Examples
shares of co-owners. actual property.

Multiple preliminary decrees

Applicabili Only one final decree is passed
can be passed in a single
ty in a suit.
suit.

Can be executed to enforce

Execution Not executable on its own.
rights.

Judicial Precedents

1. Rachakonda Venkat Rao v. R. Satya Bai (AIR 2003 SC 3322):

o The court clarified the distinction between preliminary and

final decrees and emphasized that a final decree cannot
contradict the preliminary decree.

2. Venkata Reddy v. Pethi Reddy (AIR 1963 SC 992):

o It was held that a decree must conclusively determine the

rights of the parties for it to be final.

3. Phoolchand v. Gopal Lal (AIR 1967 SC 1470):

o The Supreme Court explained that a decree could be partly

preliminary and partly final.

A decree is an essential part of civil proceedings, providing a formal and

conclusive determination of rights. The distinction between preliminary
and final decrees ensures procedural clarity, particularly in complex cases
involving multiple stages, such as partition or mortgage suits. Both forms
of decrees serve critical purposes in resolving disputes efficiently and
conclusively.