Civil Procedure Code

Q no 1: What is Appeal? What are the essentials of an appeal? What

are the different kinds of Appeal under the Civil Procedure Code?
Explain the power and duties of an appellate court?

Introduction:

It has been well said by Mr. Wilt chamberlain that “nobody is perfect”. The same is true with
respect to the judges as well. Judgments by them are not infallible. There are chances of mistake and
error being occurred despite all the provisions for ensuring a fair trial and a just decision. To make sure
that the victims to the case do not suffer any harm and the society is not put into danger because of any
sort of error or mistake by the judges concerned, the law provides for the provisions of appeal. Sections
96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure, 1908 deal with appeals from original
decrees known as First appeals.

What is an Appeal?

Appeal is basically a case that is filed to a superior court to make the correction in the decision
of the inferior court. As per Black law dictionary, an appeal is a complaint to a superior court of an
injustice done or error committed by an inferior one, whose judgment or decision the court above is
called upon to correct or reverse.

WHO CAN FILE AN APPEAL?

Any of the following persons can file an appeal:

i. Any party to the original proceeding or his/her legal representatives.
ii. Any person claiming under such party or a transferee of interests of such party.
iii. Any person appointed by the court as the legal guardian of a minor.
iv. Any other aggrieved person after taking leave of the court

Essentials of appealing cases:

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on
questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand the matter
to the lower forum for fresh decision in compliance of its directions. The essentials of appealing cases
can be narrowed down to 3 elements:

i. A decree passed by a judicial/administrative authority;

ii. An aggrieved person, not necessarily a party to the original proceeding; and
iii. A reviewing body instituted for the purposes of entertaining such appeals.

GROUNDS OF AN APPEAL.

An appeal under the Civil Procedure Code can be made under the following grounds:

i. A decision has already been made by a judicial or administrative authority.

ii. A person is aggrieved of such decision, whether or not he is a party to the proceeding.
iii. The appeal is entertained by a reviewing body.
Kinds of Appeals:

Appeals from Orders:

It is a general rule created
under the Code that only
decrees are appealable and
orders are non-appealable.
However, there can be
circumstances where an order
can
largely affect the rights of the
parties to a suit and therefore,
Section 104 was enacted
to provide a list of orders from
which an appeal lies.
Appeals from Orders:
It is a general rule created
under the Code that only
decrees are appealable and
orders are non-appealable.
However, there can be
circumstances where an order
can
largely affect the rig
Appeals can be divided into
following four classes
according to the
provisions of the Code of Civil
procedure.
1. Appeals from original
decrees,
2. Appeals from appellate
decrees (Second Appeals),
3. Appeals from Orders, and
4. Appeals to the Supreme
Court.
Appeals can be divided into
following four classes
according to the
provisions of the Code of Civil
procedure.
1. Appeals from original
decrees,
2. Appeals from appellate
decrees (Second Appeals),
3. Appeals from Orders, and
4. Appeals to the Supreme
Court.
Appeals can be divided into
following four classes
according to the
provisions of the Code of Civil
procedure.
Appeals can be divided into following four classes according to the provisions of the Code of Civil
procedure. These are-

i. Appeal from Original Decree

 Section 96 of the Code provides that the first way of challenging the decree, passed by a
court exercising the original jurisdiction, is by filing an appeal in the court "authorized to hear appeals'
from the decisions of such court. It also provides that, an appeal may lie from an original decree passed
ex parte, i.e., without hearing the other party. No appeal will lie from a decree passed by the Court with
the consent of parties. This kind of appeal is known as first appeal.

ii. Appeals from Appellate Decrees/Second Appeal

Section 100-103 and 108 of CPC deals with the second appeal. This part of the code contains
provisions relating to appeal from 'appellate decrees' unlike from original decree. As the word 'second
appeal' clearly denotes, it is an appeal filed against the order of an appellate court. Second here denotes
the number of appeals, in laymen terminology. Section 100 provides that an appeal shall lie to the High
Court from every decree passed in appeal by any Court subordinate to the High Court if the High Court is
satisfied that the case involves a substantial question of law. It must be noted that second appeal only
lies on the substantial question of law, not on the question of facts.

iii. Appeals from Orders:

It is a general rule created under the Code that only decrees are appealable and orders are
non-appealable. However, there can be circumstances where an order can largely affect the rights of the
parties to a suit and therefore. Section 104 was enacted to provide a list of orders from which an appeal
lies.

iv. Appeals to the Supreme Court:

Article 132 provides for an appeal to the Supreme Court of any judgement, order or decree from
civil or criminal cases or any other proceedings. Supreme Court is the topmost forum in the hierarchy of
the Court. It is primarily the Court of appeal. It is the highest forum for appeal in the country. The power
of appellate jurisdiction is given to the Supreme Court, by the Indian Constitution under Article 132, 133,
134, 134A.

Powers of Appellate Court

Section 107 prescribes the powers of an appellate Court:

i. To remand a case;
ii. To frame issues & refer them for trial;
iii. Reappraisal of evidence when a finding of fact is challenged before it;
iv. To summon witnesses;
v. Can reverse inference of lower Court, if not justified;
vi. Appreciation of evidence.

Duties of an appellate court:

 i. The appellate Court has a duty to analyze the factual position in the background of principles of
law involved and then decide the appeal.
ii. To provide cogent reasons for setting aside a judgment of an inferior Court.
iii. To delve into the question of limitation under Section 3(1) of the Limitation Act.
iv. To decide the appeal in compliance with the scope & powers conferred on it under Section 96
r/w [Link], R.31 of the CPC.

CASES:

Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316

In this case, the Judge of the Trial Court banned the screening of films both in India and abroad.
The Session Judge allowed the film to be shown abroad. A party which moved in appeal subsequently
did not have locus standi. It was overturned by the division bench stating that as he entertained the suit
in which party had no locus standi, it is not reasonable on the part of the judge.
CONCLUSION

It can thus be clearly seen that through the process of appeals, a person gets an
opportunity to get any legal, or factual error in an order or judgment corrected. Nevertheless, appeals
against any judgment, or order, or sentence of a criminal court can only be preferred when it has been
specifically provided in the statutes. Thus, the right to appeal can only be exercised within the limits laid
down by CPC or any other law which is in force and hence, this is a constricted right.

Q no 2: Explain the term “Decree”. What are the essentials of a

decree? Write the contents of a Decree. Distinguish between a
“Decree” and “Judgement.”

Decree:

The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree always
follows judgment and is based upon a judgement. It is divided into five types unlike judgement which is
final in itself. A decree may be final or preliminary. It is a formal declaration or adjudication and is
conclusive in nature. A decree is of three kinds namely, preliminary decree, final decree and partly
preliminary & partly final. A decree may be delivered with an order. The decree contains the outcome of
the suit and conclusively determines the rights of the parties with regard to the issues in dispute in the
suit. After passing the decree, the suit stands disposed of since the rights of the parties are finally
determined by the court.

Essential Elements of a Decree:

 i. There should be adjudication: It is the most essential feature of a decree. A former decision
of the Judge on the dispute should be there. In the absence of such judicial determination, there
can be no decree.
ii. Suit: This proceeding is instituted in the Court of Law by filing a plaint in the civil court. Similar
to adjudication, there is no decree without a civil suit. There are specific provisions that treat
certain applications as suits like proceedings under Hindu Marriage Act, Indian Succession Act.

iii. Determining the rights of the parties: The adjudication should determine the rights of the
parties in a dispute. The term parties refer to the plaintiff (person instituting the suit) and the
defendant (person against whom the suit has been filed).

iv. Determination must be conclusive in nature: The determination held by the Court should
be conclusive relating to the rights of the parties. The provisional decisions are not considered
decree.

v. There must be a formal expression : To be a decree, there must be a formal expression of

adjudication. In other words, the court must formally express its decision in the manner laid
down by law.

Kinds of Decrees:

According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into three
categories:

i. Preliminary Decree: In a legal sense, a preliminary decree is a decree where further

proceedings have to take place before the suit can be completely disposed off. It decides the
rights of the parties in respect to all or any of the matters of discussion but it does not
completely dispose of the suit. In such a decree the rights and liabilities of the parties are stated
leaving the actual result or decision to be worked out in future proceedings.

The Supreme Court in the case of Shankar v. Chandrakant AIR 1995 held that the preliminary
decree is a decree in which the rights and liabilities of parties are declared but the actual result
is left to be decided in further proceedings.

ii. Final Decree: In general sense, the word ‘final’ means last, ultimate, conclusive or decisive. In
legal sense, a final decree is a decree which completely disposes of the suit and settles all the
questions in discussion between the parties and nothing is left further for deciding thereafter. It
is only said to be final when such adjudication completely disposes of the suit.

In the case of Shankar v. Chandrakant, AIR 1995 the Supreme Court finally settled the
conflict of opinion and stated that more than one final decree can be passed.

iii. Partly preliminary and partly final Decree : A decree is said to be partly preliminary
and partly final when the court decides two questions by the same decree. For instance,
if the court passes a decree in favour of one party along with a direction of inquiry for
 the other party, the former part of the decree is final while the latter part is a
preliminary decree for which further proceedings have to take place.

Contents of a Decree:

A decree always follow the judgement, coincide with it and contains:

i. The suit’s number – Every suit has a particular number and it should be mentioned in the
decree.
ii. The names, description and registered addresses of the parties – Every decree shall
have the names of all the parties of that particular suit, the proper description of the parties of
the suit, and the registered addresses of all the parties of the suit.
iii. The particulars of the parties claims or defence – Every decree shall contain the details of
the claims and the defences the parties are claiming as an outcome of the said suit.
iv. The relief or the remedy granted to the aggrieved party – The decree should in
particular mention about the relief granted to the particular party as a remedy and not a
reward.
v. The judgement’s date of pronouncement or delivery date of the judgement – The
decree should mention the date on which the judgement was delivered followed by the decree.
vi. The judge’s signature on the decree – The judge’s signature is an essential and
indispensable element of any decree. The signature of the judge delivering the judgement is an
essential requisite.

Difference between Judgement and Decree:

i. Judgement means the statement given by the judge on grounds of a decree or order. In a
decree it is not necessary for a judge to give a statement in a decree though it is necessary in a
judgement.
ii. Judgement has been defined under Section 2(9) of the Code of Civil Procedure, 1908. Decree
stands defined under Section 2(2) of CPC, 1908.
iii. In the case of judgement, it is not necessary that there should be a formal expression of the
order in judgement. In a decree, it is necessary that there should be a formal expression of an
adjudication.
iv. Judgement is a stage prior to the passing of a decree or order. The decree is followed after the
pronouncement of the judgement.
v. Judgement is based upon the facts of the case. A decree is based upon the judgement.
vi. Judgement doesn’t have any kinds. Decree is of three types i.e. preliminary decree, final decree
and partly preliminary and partly final decree.
vii. Judgement is pronounced in civil as well as criminal matters. But A decree can be passed only in
a civil suit.

Conclusion:

The Code of Civil Procedure lays down provisions to pronounce and issue the decision of the
Court and decree is one of them. A decree in the decision of a court which determines the rights in
dispute between the parties to suit. A decree can be preliminary, final or partly preliminary and partly
final. There is also a concept of the deemed decree. A decree is different from order and judgement in
many ways.

Q no 3: What do you mean by “Plaint”? What particulars should a

Plaint contain? What are the grounds for rejection of Plaint?

Introduction:

The plaint is a concept that emerged in the field of law for the better knowledge of the point of
conflict and facts so that effective and well-informed decisions can be delivered. The concept of plaint is
required in the commercial and civil matters which are dealt with by the commercial and civil
courts. Plaint is defined in order 7 of CPC. Rules 1to8 of order relate to particulars in a plaint. Rule 9 lays
down procedure on plaint being admitted. Whereas rules 10 to 10-B provide for the return of plaint, and
appearance of parties, rules 11 to 13 deal with rejection of plaint.

Plaint

A Plaint is a legal document that contains the content of any civil suit which shows the
Plaintiff’s claim after filing suit. The plaint is the first step of the Plaintiff in the form of a legal document
for the commencement of suit and it shows what a Plaintiff wants from that suit. The concept of a plaint
is mentioned in the Civil Procedure Code. Through the help of plaint, the plaintiff narrates or describes
the cause of action and related information which is considered as essential from the viewpoint of the
suit.

Particulars of Plaint:

A plaint is a legal document that contains a lot of necessary contents in the absence of which,
it cannot be considered as a plaint. The contents necessary for a plaint are mentioned in Rules 1 to 8 of
Order VII of CPC. These are mentioned below:

i. The name of the particular court where the suit is brought; [R.1(a)];
ii. The name, place, and description of the plaintiff’s residence; [R.1(b)];
iii. The name, place, and description of the defendant’s residence; [R.1(c)];
iv. A statement of unsoundness of mind or minority in case the plaintiff or the defendant belongs
to either of the categories; [R.1(d)];
v. The facts that led to the cause of action and when it arose; [R.1(e)];
vi. That fact that point out to the jurisdiction of the court ; [R.1(f)];
vii. The relief claimed by the plaintiff, [R.1(g)];
viii. Where the suit is for recovery of money, the precise amount claimed; [R 2]
ix. Where the subject-matter of the suit is immovable property description of the property
sufficient to identify it, e.g. boundaries, survey numbers, etc; [R.3]
x. The interest and liability of the defendant in the subject-matter of the suit; [R. 5]
Ground for Rejection of Plaint:

The Plaint shall be rejected in certain situations when requirements are not fulfilled. Some of
the situations in which the plaint is rejected are as follows:

i. The plaint is rejected in a case where the cause of action is not disclosed. If the cause of action is
not disclosed then it is not possible to prove the damage caused to the plaintiff. To seek relief
against the defendant, the facts need to be mentioned clearly.
ii. The plaint is also rejected in a case where the plaintiff relief is undervalued and the plaintiff is
requested by the court to correct the valuation within the given time frame but the plaintiff fails
to do so.
iii. The plaint is rejected in a case where all the documents are not properly stamped and the
plaintiff on being required by the court to supply the required stamp paper within a time to be
fixed by court fails to do so.
iv. The plaint is mostly rejected due to the statement mentioned in the plaint secured by any law or
statute that doesn’t give any right to the plaintiff to file the suit.
v. When a duplicate copy of the plaint is not submitted whereas it is mentioned that it is
mandatory to submit the duplicate copy then in that condition plaint is liable to be dismissed.
vi. The plaint is rejected when the plaintiff fails to comply with the provisions of Rule 9 of Order VII
of C.P.C.

Case Law:

Bibhas Mohan Mukherjee v. Hari Charan Banerjee AIR 1961 Cal 491

In this case, it was held that an Order rejecting a plaint is a decree and hence it is applicable and
binding in other case which involves the rejection of the plaint.

Conclusion:

A plaint is important in the sense that it is the first and foremost step towards instituting the
suit. Therefore, due care has to be taken to ensure that the procedure required for the initiation of
plaint has been duly recognized. It is mandatory to follow protocol by stating the relevant facts, the
necessary details, refrain from providing evidence and mention the kind of relief envisaged so that the
plaintiff is duly benefited.
Q no 4: What is Injunction? Against whom injunction may be used?
What are the types of Injunction? Write the grounds for granting
temporary Injunction. When temporary Injunction when cannot be
granted?

Introduction:

Mr. Sabharwal explains that injunctions are the backbone of any litigating lawyer and a case,
which is indeed a determinative factor as to how any litigation would go about, whether it will end up in
a compromise or as we see in courts, it would give a certain upper hand to one party. Quoting Lord
Halsbury’s definition of injunction, “Injunction is a judicial process whereby a party seeks to refrain
someone from doing something or seeks a direction from a court to direct a person to perform a certain
act.”

What is an Injunction?
An injunction is a remedy granted by the court that prohibits the commission of a wrong
threatened or the continuance of a wrongful course of action already begun. If a party fails to comply
with an injunction granted by a court, then the party could face criminal or civil penalties or contempt of
court.

Joyce defined it as “an order remedial, the general purpose of which is to restrain the commission
of some wrongful act of the party informed”.

Against whom injunction may be issued:

An application for interim injunction along with affidavit may be made both Plaintiff or
Defendant. Order 39 Rule (1) a, any party to the suit can apply for a Temporary [Link] Injunction
may be issued only against a party and not against a stranger or third party. Further, the injunction
cannot be issued against the Court or Judicial Officers.

Types of Injunction:

The following are the different types of the injunction:

i. Preliminary Injunction: A preliminary injunction, which is also known as an ad-interim

injunction, is assigned to a plaintiff prior to a trial. preliminary injunction preserves the
subject matter in its existing condition to prevent any dissolution of the plaintiff’s rights, and
thereby render him/her the possibility of immediate relief.
ii. Preventive Injunctions: A preventive injunction is an adjudication that forces an
individual to abstain from doing an action that is preventive, prohibitive or negative. The
injunction intends to prevent a threatened injury, preserve the status quo, and reserve the
continued commission of an ongoing wrong.
iii. Mandatory Injunction: Considered as the most rigorous of all injunctions, a mandatory
injunction directs the defendant to perform an act. For example, if a court orders the
removal of a building or structure due to misplaced construction, then it fits the description
of a mandatory injunction.
iv. Temporary Restraining Order: A temporary restraining order is just what its name
suggests, as the same is valid until the period of restraining order draws to a closure. The
court grants it to preserve the status quo of the subject of the controversy until the hearing
of an application for a temporary injunction. Through it, it also seeks to prevent any instance
of unnecessary and irreparable injury.
v. Permanent Injunction: At the time of final judgement issues the permanent injunction for
granting a final relief to the applicant. These injunctions remain constant if the conditions
that produced them are permanent.
 Ground for granting temporary injunction from court:

Under Section 95 of CPC, it is specifically mentioned that the temporary injunction may be
granted in any suit wherein the Court is satisfied that there are sufficient grounds to grant the
temporary injunction. Section 95 read with Order 39 Rule 1 and 2 empowers the Court to pass the
temporary injunction:

i. When there is a reasonable apprehension and danger of alienation or disposal of property by

any party to the suit or by wrongful waste of the property; or
ii. When there is an apprehension of alienation or disposal of the property to defraud creditors; or
iii. Where Defendant threatens to dispossess the Plaintiff or otherwise causes injury to the interest
of the Plaintiff or otherwise causes injury to the interest of Plaintiff in relation to the disputed
property; or
iv. When the Defendant is about to commit a breach of contract; or
v. Any other injury is likely to be caused or likely to be repeated; or
vi. Where the Court is of the opinion that for protection of interest of any party to the suit or in the
interest of justice injunction or stay is required and necessary.

Temporary Injunction when cannot be granted:

i. To restrain any person from prosecuting a judicial proceeding at the institution of the suit, in
which injunction is sought, unless restraint is necessary to prevent multiplicity of proceedings.
ii. to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate
to that, from which injunction is sought.
iii. to restrain any person from applying to any legislative body,
iv. to restrain any person from instituting or prosecuting any proceeding in a criminal matter,
v. to prevent the breach of a contract the performance of which could not be specifically enforced.
vi. to prevent on the ground of nuisance, and act of which it is not reasonably clear that it will be a
nuisance.
vii. when conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of
the Court.
viii. when the plaintiff has no personal interest in the matter

Conclusion:

In the general understanding of injunctions in Indian jurisprudence and as is the case

presented here, the reader must have noticed the intangible presence of the Specific Reliefs Act,1963
while discussing Order 39 of the Code on Civil Procedure, 1908. This is because the essence of
injunctions is captured when the two documents are interpreted together. Their symphony is what
brings out the equity, good conscience, and goodwill of injunctions.
Q no 5: Explain the meaning, object and features of the Limitation
Act, 1963 or law of limitation.
INTRODUCTION:

When your right is violated, in how many periods of time, in which you went to the court, it
is called limitation. Law of Limitation is a Procedural Law. It is Lex Fori. The law of Limitation is founded
on Public Policy. It prescribes certain periods after the expiry of which the suit and the proceedings
cannot be maintained. Law of Limitation ensures that the parties do not resort to dilatory tactics and
avail the remedy promptly.

Meaning of the Law of Limitation:

The ''Law of Limitation'' prescribes the time-limit for different suits within, which an aggrieved
person can approach the court for redress or justice. The suit, if filed after the exploration of time-limit, is
struck by the law of limitation. It’s basically meant to protect the long and established user and to
indirectly punish persons who go into a long slumber over their rights.

The statutory law was established in stages. The very first Limitation Act was enacted for all
courts in India in 1859. And finally took the form of Limitation Act in 1963.

History of the Act:

The law of limitation developed in stages and finally took the shape of the Limitation Act of
1963. Prior to 1859, there was no law of limitation applicable to the whole of India. It was only in 1859
that a law relating to limitation (Act XIV of 1859) was enacted that was applicable to all the Courts. The
Limitation Act was subsequently repealed in the years 1871, 1877, 1908. The Limitation Act, 1908 was
repealed by the Third Law Commission and the Limitation Act of 1963 came into force. The 1908 Act
referred only to foreign contracts whereas the 1963 Act talked about contracts entered into the
territory of Jammu and Kashmir or in a foreign country.

Object of the Act

The Law of limitation prescribes a time period within which a right can be enforced in a Court of
Law. The time period for various suits has been provided in the schedule of the Act. The main purpose of
this Act is to prevent litigation from being dragged for a long time and quick disposal of cases which
leads to effective litigation. As per the Jammu and Kashmir Reorganisation Act, 2019, provisions of the
Limitation Act will now apply to the whole of India. The Limitation Act, 1963 contains provisions relating
to the computation of time for the period of limitation, condonation of delay, etc. The Limitation Act
contains 32 sections and 137 articles and the articles are divided into 10 parts.
Salient Features of the Act:

The salient features of the Limitation Act, 1963 are as follows-

i. The Limitation Act contains 32 Sections and 137 Articles. The articles have been divided into
10 parts.

ii. There is no uniform of limitation for the suits under which the classifications has been
attempted.
iii. The limitation period is reduced from a period of 60 years to 30 years in the case of suit by
the mortgagor for the redemption or recovery of possession of the immovable property
mortgaged, or in case of a mortgages for the foreclosure or suits by or on the behalf of
Central Government or any State Government including the State of Jammu and Kashmir.
iv. Whereas a longer period of 12 years has been prescribed for different kinds of suits relating
to immovable property, trusts and endowments, a period of 3 years has been prescribed for
the suits relating to accounts, contracts and declarations, suits relating to decrees and
instruments and as well as suits relating to movable property.
v. A period varying from 1 to 3 years has been prescribed for suits relating to torts and
miscellaneous matters and for suits for which no period of limitation has been provided
elsewhere in the Schedule to the Act.
vi. It is to be taken as the minimum period of seven days of the Act for the appeal against the
death sentence passed by the High Court or the Court of Session in the exercise of the
original jurisdiction which has been raised to 30 days from the date of sentence given.
vii. One of the main salient feature of the Limitation Act, 1963 is that it has to avoid the
illustration on the suggestion given by the Third Report of the Law Commission on the
Limitation Act of 1908 as the illustration which are given are most of the time unnecessary
and are often misleading.
viii. The Limitation Act, 1963 has a very wide range considerably to include almost all the Court
proceedings. The definition of ‘application’ has been extended to include any petition,
original or otherwise. The change in the language of Section 2 and Section 5 of the
Limitation act, 1963 includes all the petition and also application under special laws.
Case Law:

Balakrishnan v. M.A. Krishnamurthy AIR, 1993

In Balakrishnan v. M.A. Krishnamurthy , it was held by the Supreme Court that the Limitation
Act is based upon public policy which is used for fixing a life span of a legal remedy for the purpose of
general welfare. It has been pointed out that the Law of Limitation are not only meant to destroy the
rights of the parties but are meant to look to the parties who do not resort the tactics but in general to
seek remedy. It fixes the life span for legal injury suffered by the aggrieved person which has been
enshrined in the maxim ‘interest reipublicae ut sit finis litium’ which means the Law of Limitation is for
general welfare and that the period is to be put into litigation and not meant to destroy the rights of the
person or parties who are seeking remedy.

Conclusion

The law of limitation prescribes the time within which a person can enforce his legal right.
This Act keeps a check on the cases so that they are not dragged for over a long time. This Act also
recognizes the fact that there are situations when persons instituting a suit or preferring an appeal for a
genuine cause are unable to institute a suit within the time prescribed in the Act and the same criteria
cannot be applied to every situation.

Q no 6: Discuss the provisions relating to suit by or against

Government.

Introduction:

Suits by or against the government or public officials in their official capacity is a type of special
cases in the code of civil procedure. Such suits are of a special type because the procedures which are
needed to be followed in the institution of the plaint are different from the procedures which are to be
followed in the civil suits which consist of private parties. For filing a suit against the government or
public official, the plaintiff needs to first serve a legal notice to the public officer or to the Secretary to
the Government. Sections 79-82 and Order 27 of the Code of Civil Procedure, 1908[1], deal with the
procedure which needs to be followed in the places of filing of a suit against the government or public
officials.

Nature and Object:

The object laid down by the above mentioned Section is- there should be an opportunity
conferred on the part of the Secretary of the State or the Public officer to reconsider his legal position in
order to make amends or settle down the claim if so advised. This can further be done without litigation
or afford restitution or without recourse to court of law. Whenever a statutory notice is issued to public
authorizes, they are required to further take notice in all seriousness and they are not required to sit
over it and force the citizen to the redundancy of litigation.

Analysis:

Section 79 and 80 are defined as follows under the Procedure of Civil Code-

Section 79-

This Section defines the concept of suits by or against the government: Whenever a case is filed
against a government or if it is filed by the government, the plaintiff and the defendant who will be
named in the case will be as provided under:

 Whenever the case is instituted by or against the central government, the Union of India will be
represented as the required plaintiff or defendant respectively.
 Whenever the suit is filed by or against the state government, the state government will be
required to act as the plaintiff or the defendant.
 The Supreme Court in Chief Conservator of Forests, Government of A.P. v. Collector, AIR 2003
SC 1805, ruled that the requirements listed in Section 79 and Order 27, Rule 1 of CPC are not just
procedural formalities, but are matters of substance as well as substantial magnitude wherein special
provisions have been laid regarding how the Central/State Government can sue or be sued.

Section 80-

This section deals with the concept of Notice. According to this Section, there exists no onus for
the institution of a suit against the government without issuing a notice regarding the same, this
includes the state of Jammu and Kashmir. With respect to institution of a suit against a public officer
with respect to the act done by him in his official capacity, there is again a need for issuance of notice
regarding the same. Further, the notice should be served two months prior to the institution of the suit
and it should be made sure that such a notice was delivered or left at the office of:

 Whenever the case is against the central government, and it does not relate to the railways
then, the notice should be delivered to the secretary of the government.
 Whenever a case has been instituted against the central government and it relates to the
railways then, the notice is to be served to the general manager of that railways.
 Whenever the case is instituted against any of the state governments then, the notice is to be
served either to the secretary to that government or to the collector of the district.

It was specified in State of Rajasthan vs Rikhabchand Dhariwal, AIR 1961 Raj 64, that if it is
considered appropriate to implead the State or any of its Departments as a claimant in a civil suit,
compliance with Section 80 of the Civil Procedure Code is mandatory.

Order XXVII(27):

i. Suits by or against the government-

It should be noted that in any suit by or against the government, the plaint or the written
statement should be signed by such a person, as the government by general or special order, appoint in
this behalf.

State of Rajasthan v. Jaipur Hosiery Mills, in this case, it was held that the sanction to sign
must be prior to the institution, and if not complied with this, the signing shall be by an incompetent
person, and further, issuing of a retrospective sanction will not preserve the defect.

ii. Attendance of person being able to answer the questions related

to suits against the government-

The court may, in any case where government pleader is not accompanied by person on the
part of the government and if he is able to answer the questions relating to suit, the court may direct
the attendance of that person.
Conclusion:

Suits by or against government or public officers constitutes a lot of formalities and also
provides a lot of protection and defenses to the Government. These protections allow the government
to take actions in providing remedies to the private individual and save the Court's time. However at the
same time these protections become a great problem and hurdle in the process of imparting justice.
Hence, in my point of view, instead of bringing in amendments to the Statute for example, totally
exempting the process of servicing notice tp the government, the Court should judge the facts and
circumstances of the case and come to the conclusion to whether the service of notice is a necessity in
the case.

Q no 7: Discuss the provisions relating to suit by or against minors

and lunatics.

Introduction:

Order XXXII of the CPC, 1908 deals with SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND
MIND. Order XXXII contains special provisions applicable only in cases where either the suit is:- to be
instituted at the cause of a minor/person of unsound mind or instituted against a minor/person of
unsound mind. The origin behind this concern rests in Common Law. In the Code of Civil Procedure, the
main object behind the enactment of Order XXXXII is the protection of the interests of minors and
persons of unsound mind.

Filing or Defending of Suit on Minor’s Behalf (Order XXXII, Rules 1-14)

Suits by Minor: Rules (1 to 2A) – Under these provisions, a suit by a minor should be instituted
in his name through his guardian or next friend. Under rule 2A, the Court has power to order the next
friend to furnish security for costs of defendant. The object is to discourage vexatious litigation by the
next friend of minor.

Rule 3 – Order XXXII, rule 377, where a suit is instituted against a minor the Court should
appoint a guardian ad litem to defend the suit. The appointment of such guardian or next friend is for
throughout the proceedings unless it is terminated by retirement, removal or death of such guardian.

Qualifications as to be a Guardian or Next Friend

Under rule 4, any person who is competent in law to make a contract or who has attained majority
and is of sound mind, may act as a guardian or next friend, provided that his interest is not adverse to
that of minor, nor who is an opposite party in the suit and who has given his consent in written to act as
a guardian or next friend.

Power and Duties of a Guardian/Next Friend (Rules 5-7):

In all suits to which a person is appointed as a guardian/next friend can, without the leave of the
Court:
 i. receive any amount, movable property by way of compromise.
ii. he cannot enter into any agreement or compromise on his behalf (minor’s) in the suit.

These two above mentioned conditions are mandatory and are provided specially in rules 6 and 7. Also
Rules 6 and 7 are designed to safeguard the interest of a minor during the pendency of a suit against
hostile, negligent or collusive acts of a guardian.

Retirement, Removal or Death of such Guardian/Next Friend (Rules 8-11):

A next friend cannot retire without procuring a fit person for substituting him and giving security
for the costs already incurred by him (Rule 8).The Court may remove a next friend in the following
circumstances, if:

i. his interest is ‘adverse to that of a minor’; or

ii. lie is so connected with the defendant as to make it unlikely that the minor’s interest will not be
protected by him; or
iii. he does not do his duty; or
iv. he ceases to reside within India during the pendency of a suit; etc

Where the guardian/next friend desires to go/retire or fails to discharge his duty or where there
are other justifiable grounds, the Court may permit such guardian or next friend to retire or may remove
him or may also make such order as it thinks [Link] retirement, removal or death of a guardian or next
friend, further proceedings in the suit shall remain stayed until another competent guardian/ next friend
is appointed. (Rule 10).

Minor Attaining Majority (Rules 12-14)

These provisions clears the situation of the proceedings and the duties of the next friend, when minor
attains majority. On attaining majority, a minor plaintiff may choose any of the following:

i. may proceed with the suit, discharging the guardian/next friend with the leave of the Court.
ii. may abandon the suit and may apply for its dismissal on repayment of cost to the defendant or
to his guardian or next friend.
iii. may apply for withdrawal of suit on the grant of it being unreasonable or in proper.
iv. And in case, he is a co-plaintiff he may apply for repudiation of suit and may apply to strike-off
his name as co-plaintiff.

Decree against minor:

Rule 3A lays down that no decree passed against a minor shall be set aside merely on the
ground that the next friend or guardian for the suit of the minor had interest in the subject-matter of
the suit adverse to that of minor. But if the minor is prejudiced by reason of such adverse interest, it
shall be a ground for setting aside the decree.
Case Law: Ram Chandra Arya vs Man Singh & Anr, AIR 1968

In the case of Ram Chandra Arya v/s Man Singh it was held that if a decree is passed against a
minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable.
CONCLUSION

Order XXXII of CPC provides the right to minors to sue by a next friend or defend through a
guardian. It is a valuable right accorded to the minors who are not in a position to contest legal
proceedings on their own. Thus, when specific provisions have been set out in relation to appointment
of guardians, then it would be sheer travesty of justice, if such provisions are ignored and orders are
passed against a Minor. It would definitely amount to violation of the precious rights accorded to the
Minors under the Code of Civil Procedure.

Q no 8. Discuss the essential of a civil suit.

Introduction:-
The term suit is not defined under the CPC but on the basis of the various decisions, it
can be said that ‘suit ordinarily means a civil proceeding instituted by the presentation of a plaint. Civil
suit is the institution of the litigation for enforcement of civil rights (or substantive rights, it may be
against state or individual). A suit results in a decree. Without a suit, there can be no decree.

Meaning of the suit:-

According to the dictionary meaning, “suit” is a generic term of comprehensive signification
referring to any proceeding by one person or persons against another or other in a court of law wherein,
the plaintiff purses the remedy which the law affords him for the redress of any injury or the
enforcement of a right, whether at law or in enquiry.

So far as the Code of Civil Procedure is concerned, the term “suit” means a civil proceeding
instituted in a civil court by the presentation of a plaint (S. 26), and it would not be possible to call any
proceeding a suit even if it is a proceeding instituted in the Civil Court, if it is not done by a plaint.

Essentials of a suit:

There are mainly four essentials in a suit. These are as follows-

i. Name of Parties (there must be two opposing parties) –

The first essential of a suit is the name of the parties. In a suit there must be at least two parties
the plaintiff & the defendant. There is no limitation with regards to number on either side.

ii. Cause of Actions –

The second essential of a suit is cause of action. Without a cause of action there is no
existence of the suit. Cause of action is a set of fact or circumstance that a plaintiff is required to prove.
Means that set of facts and circumstances constituting the right and its infringement. A person is party
to a suit if there is a cause of action against him. The cause or the set of events or circumstances which
leads or resulted into presentation of a plaint or filing a suit.
 The cause of action means every fact which is necessary for the plaintiff to be proved with a
view to obtain a decree in his favour. Where a plaint is not disclosing a cause of action, it is the duty of
the court to reject the plaint under Or. 7 R.11.

iii. Subject matter –

The third essential for a suit is subject matter, means in what respect or aspect a civil dispute
is related. There must be a subject matter in every civil suit.

Section-9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is
either expressly or impliedly barred.

Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decision of questions as to religious
rites or ceremonies.

Explanation II : For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a particular
place.[2]

iv. Relief claimed by the plaintiff –

The fourth essential is relief claimed by the plaintiff in his suit. No will grant relief unless it is
specifically claimed by the party.

Relief is of two types-

a. specific relief and

b. alternative relief.

Conclusion:

From the above we have discussion we have seen that suit is an important part of every civil
cases. It contains various essential which must be needed for every civil cases. Without a suit, there can
be no decree. Thus it is considered as an important part of the Civil Procedure Code

Q no 9: What is attachment before Judgement? Discuss the provisions

relating to the powers of Court for such attachment.

INTRODUCTION:

Various interim orders are enumerated under the Code of Civil Procedure, 1908 (CPC), which
are temporary orders given during the suit’s pendency so as to safeguard the subject matter of the suit
wherein Order 38 Rules 5-13 exclusively concerns the attachment before judgement. Like arrest before
judgement, the court may order attachment before judgement in peculiar circumstances. Attachment of
property before judgement is done for the primary objective of preventing the defendant’s attempt to
defeat the decree’s realization which is passed in favour of the plaintiff.

Meaning of attachment before Judgement:

Attachment is the legal process of seizing property to ensure satisfaction of a Judgment. An

order of attachment before judgement affects the rights of the owner of the property to deal with the
same even before any verdict is available against him as regards the claim of the plaintiff. Such an order
is not to be passed merely for the asking or in the routine manner.

Provisions relating to the powers of Court for such attachment:

i. Rule 5 Order 38-"Where. defendant may be called upon to furnish security for
production of property":

Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the
defendant, with intent to obstruct or delay the execution of any decree that may be passed against
him,- is about to dispose of the whole or any part of his property, or is about to remove the whole or
any part of his property from the local limits of the jurisdiction of the Court , the Court may direct the
defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in
the Order. The said property or the value of the same thereof as may be sufficient to satisfy the decree,
or to appear and show cause why he should not furnish security.

ii. Rule 6 Order 38: Attachment where cause not shown or security not furnished

Where the defendant fails to show cause why he should not furnish security, or fails to
furnish the security required, within the time fixed by the Court, the Court may Order that the property
specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the
suit, be attached.

iii. Rule 7 Order 38: "Mode of making attachment":

Save as otherwise expressly provided, the attachment shall be made in the manner provided for
the attachment of property in execution of a decree.

iv. Rule 8 Order 38: Adjudication of claim to property attached before judgment"

Where any claim is preferred to property attached before judgment, such claim shall be
adjudicated upon in the manner hereinbefore provided for the adjudication of claims to property
attached in execution of a decree for the payment of money.

v. Rule 9 Order 38: "Removal of attachment when security furnished or suit dismissed"

Where an order is made for attachment before Judgment, the Court shall order the attachment to
be withdrawn when the defendant furnishes the security required, together with security for the cost of
the attachment, or when the suit is dismissed.
 vi. Rule 10 Order 38"Attachment before Judgment not to affect rights of strangers, nor
bar decree -holder from applying for sale":

Attachment before Judgment shall not affect the rights, existing prior to the attachment, of
persons not parties to the suit, nor bar any person holding a decree against the defendant from applying
for the sale of the property under attachment in execution of such decree.

vii. Rule 11 Order 38: "Property attached before Judgment not to be re-attached in
execution of decree"

Where property is under attachment by virtue of the provisions of this order and a decree is
subsequently passed in favour of the plaintiff, it shall not be necessary upon. an application for
execution of such decree to apply, for a re-attachment of the property.

viii. Rule 11A Order 38: "Provisions applicable to attachment"

The provisions of this Code applicable to an attachment made in execution of a decree shall so far as
may be, apply to an attachment made before Judgment which continues after the Judgment by virtue of
the provisions of rule 11. An attachment made before Judgment in a suit which is dismissed for default
shall not become revived merely by reason of the fact that the order for the dismissal, of the suit for
default has been set aside and the suit has been restored.

ix. Rule 12 Order 38: "Agriculture produce not attachable before Judgment":

Nothing in this order shall be deemed to authorize the plaintiff to apply for the attachment of
any agriculture produce in the possession of an agriculturist, or to empower the Court to order the
attachment or production of such produce.

x. Rule 13 Order 38: "Small Cause Court not to attach immovable property": Nothing in
this order shall be deemed to empower any Court of Small Causes to make an order for the
attachment of immovable property.
CASE LAW: Govindrao vs Devi Sahai, AIR 1982

In Sardar Govindrao vs Devi Sahai, AIR 1982 it was observed by the Apex court that an order for
attachment before judgement is given in cases where the plaintiff’s application is successful in
convincing the court that the defendant had intended either to delay any decree’s execution or obstruct
it, or is about to give away the whole or any part of his property from the Court’s local limits of the
jurisdiction.

Conclusion

It vividly appears from the above discussion, that the objective behind ordering attachment
before judgement is to prevent the defendant’s attempt to defeat getting the fruits of the decree passed
in favour of the plaintiff. The code enumerates provisions relating to attachment of property before
judgement under Order 38 Rule 5. Various case laws illustrate the diversity of cases wherein such order
can be passed by the Court.
Q no 10: Write a note on the Summon under CPC

Introduction:

The word “summons” has not been defined in the Civil Procedure Code. The intimation sent to the
defendant by the court is known as a summons. Order 5 and sections 27 to 29 of the Civil Procedure
Code deal with summons under civil litigation.

The meaning of summons is to order a person to come into the court. It is the simple
form of the legal process which is issued by the court for enforcing the attendance of persons or any
document at specified time given in summons. The court can give the summon for a person or any
document. The main purpose of the summons is to inform the defendant in the case that the plaintiff
has filed a legal suit against him. Almost every time, the service of summons is done with an attached
copy of the complaint where the plaintiff has given his facts of the complaint.

Types of summons:
There are mainly three types of summons given under the law. So, let’s discuss each one of them:

i. Civil Summons
These are the judicial types of summons which are given under the civil case to appear in the
court and respond to the plaint filed by the plaintiff. This is to inform the defendant that a civil suit has
been instituted against him. Generally, a civil summons is served in the case related to compensation for
damages, the loss occurred due to the defendant.

ii. Criminal Summons

These types of summons which are sent to the person to appear in the criminal court in the
criminal case are called Criminal summons. In the criminal summons, the charges will be mentioned in
the case or the fact on which you got this summons will be written.

iii. Administrative Summons

These types of summons are sent by the administrative body which is authorized by law. For
example, summons under arbitration, summons by tax authority etc. These types of summons can be
served by administrative courts like labour courts, tax courts etc. Such courts have the power to
summons the person under the jurisdiction of that court.

Modes of Serving Summons:

The Civil Procedure Code, 1908 provides for the following modes of service of summons:-
i. Personal or Direct Service: This is the most popular method of service of summons. Under
this, the copy of summons is given to the defendant. The signature of the defendant are taken
on the second copy. Such service may be effected on the authorized agent of the defendant
(Order 5, Rule 15).
ii. Service by Court: When a defendant is residing within the court’s jurisdiction, the summons
shall be served through the court officer or any approved courier service. Where the defendant
is residing outside the court’s jurisdiction, the summons will be served through an officer of the
court within whose jurisdiction such defendant resides.
iii. Service by Plaintiff: In addition to the service of summons by the court, the court may allow
the plaintiff to serve the summons.
iv. Substituted Service: Another important service of summons is substituted service. Its
mention has been made under order 35, Rule 20 of the code. This mode of service is used only
when; the defendant tries to avoid taking summons, or the summons could not be served by
other normal methods.
v. Service on Agents: Order V, Rule 13 states that when a suit regarding business or work is filed
against a person who does not reside within the jurisdiction of the Court issuing summons, then
the summons being served on any manager or agent personally carrying out such business or
work shall be considered god service.
vi. Service by Post: When the court receives an acknowledgement purporting to be signed by the
defendant or his agent, or when the defendant or his agent refuses to accept delivery of the
summons when it is tendered to him, the court issuing the summons shall declare that the
summons had been properly served.
vii. Service on Adult Member of Family: According to the provisions of Order V Rule 15, where
the defendant is absent from his residence at the time of service of the summons and there is
no likelihood of him being found within a reasonable period of time and he has no agent
empowered to accept service on his behalf, the service may be made to any adult member of
the family residing with him.
viii. Service of Summons Abroad: As per Rule 25 of Order V, when the defendant resides out of
India and has no agent in India empowered to accept service, then, the summons shall be sent
to the defendant at the place where he is residing and send the same to him by post, courier
service, fax message, or email.
ix. Service When Defendant Resides Within Jurisdiction of another Court: When the
summons is to be served upon a defendant residing in the jurisdiction of another Court, then, as
per Rule 21 of Order V, the Court issuing the summons may send it to the other Court through
one of its officers or by post, or by Court-approved courier service or by fax message or email.
x. Service on Defendant in Prison: Rule 24 of Order V of CPC states that when a defendant is
confined in a prison, then, the summons may be sent or delivered to the officer in charge of the
prison by post, courier, fax message, email or any other means as provided under the rules
made by the High Court.
Conclusion:
The summons is provided by the legal authority to inform the person that a civil or criminal
case has been filed in the court against him. The person has to react to the summon as mentioned in the
court. If the person is invited into court in person, the person has the duty to do the same. The service of
a summons is important in every case to make the case clean and justify from both sides.

Q no 13: What are Pleadings? When can Pleadings be amended? On what

ground court may reject an amendment?

Introduction

Pleadings form the foundation for any case in the court of law. It is a statement in writing filed by
the counsel of plaintiff stating his contentions on the case, on the basis of which the defendant shall file
the written statement defending himself and explaining why the plaintiff’s contentions should not
prevail. Sometimes the plaintiff, having filed his plaint, may, with the leave of the court, file a statement
or the court may require him to file a written statement. In such cases, the written statement forms part
of the plaintiff’s pleadings. Order 6 of the Code of Civil Procedure (CPC) deals with pleadings.

Meaning of Pleading:

Pleading” is defined as a plaint or written statement. According to the definition, we can say
that a pleading is as follows:-

The act of a person who pleads. The advocating of a cause in a court of law. The art or
science of setting forth or drawing pleas in legal causes. A formal statement usually written, setting forth
the cause of action or defense of a case. Pleadings, the successive statements delivered alternately by
plaintiff and defendant until the issue is joined.

Rules of Pleadings:

The four words which can crisply summarize the rule of pleading is ‘Plead facts not law’. The
counsel of both the parties should only project the facts in their respective case rather than suggesting
on the laws applicable in the particular case. To gain a crystal clear understanding of the same, the rules
can be studied in two parts that is:

A. Basic or Fundamental Rules:

Basic or Fundamental Rules are discussed in the sub-rule (1) of Rule 2 of Order VI of the Code of
Civil Procedure, 1908. Summarising the provision, the basic rules of pleadings are the following:

i. Pleadings should state facts and not law;

ii. The facts stated should be material facts;
iii. Pleading should not state the evidence; and
iv. The facts should be stated in a concise form
 B. Particulars or other rules

The particulars rule are follows-

i. Particulars with dates and items should be stated wherever fraud, misrepresentation, breach of
trust, undue influence or wilful default are pleaded in the pleadings.
ii. Generally departure from pleading is not permissible, and except by way of amendment, no
party can raise any ground of claim or contain any allegation of fact inconsistent with his
previous pleadings.
iii. Non-performance of a condition precedent should be specifically mentioned in the pleadings.
Performance of the same shall not form a part of the pleadings since it is already implied.
iv. If the opposite party denies a contract, it will be held as denial of the facts of the contract and
not its validity, enforceability and legality.
v. Wherever malice, fraudulent intention, knowledge or other condition of the mind of a person is
material, it may be alleged in the pleading only as a fact without setting out the circumstances
from which it is to be inferred, etc

Amendment of pleadings:

The Court may at any stage of the proceedings allow either party o alter or amend his
pleadings in such manner or on such terms as may be just, and all such amendments shall be made as
may be necessary for the purpose of determining the real question in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the
Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter
before the commencement of trial.

There are some conditions when a pleading can be amended by the court-

i. That the amendment is necessary for the resolution of disputes between the parties.
ii. That there exist to possibility from the amendment to be harmful to any one of the parties.
iii. That the time, which is needed for the amendment would not cause damage to any legal right of
the defendant.
iv. That the amendment does not in any way lead to any new proceeding.
v. That there must exist bona fide belief on the part of the person who comes for the amendment.

Grounds when court may reject an amendment:

The court can reject for the amendment of a pleading on the following grounds-

i. Where their amendment changes the nature of the suit and introduces a totally different, new
and inconsistent case or changes the fundamental character of the suit or defence.
ii. Where new relief is added or asked.
iii. Where the new cause of action is arisen by the new application.
iv. Where the effect of the proposed amendment is to take away from the other side a legal right
accrued in his favour.
v. Where the application for amendment is not made in good faith.
Case Law: A.P. v. Pioneer Builders (2006) 12 SCC 119

In the case the Court held that amendment of pleadings can be permitted at any stage of the
proceedings to allow either party to alter or amend pleadings in such a manner as may be just and
necessary to determine the real question of controversy between the parties. The idea behind
permitting amendment at any stage is to enough ends of justice are met while ensuring no prejudice is
caused and of course, to avoid multiplicity of litigation.

Conclusion: Pleadings form the backbone of any legal suit. The case is set out in the pleading. It
guides the parties to form the arguments and know the contentions of the other party so as to frame
claims or defence by either party respectively. It is guidance in the whole journey of the suit. They also
determine the range of admissible evidence which the parties should adduce at the trial. The Code of
Civil Procedure lays down the fundamental rules of pleadings along with the amendments to the same.
These provisions are aimed to strike a balance in the society and to achieve the ultimate ends of justice.

Q no 14: Write a note on Suit by Indigent Person

As soon as a civil suit is filed in the court, the plaintiff(s), at the time of filing their plaint, are
required to submit the requisite court fees as directed by the Court Fees Act, 1870. However, Order 33
of the Code of Civil Procedure saves indigent persons by way of discharging them from the liability to
pay the required court fees. Also Order 33 of the Civil Procedure Code talks about suits by indigent
persons. Indigent means poor, penniless, pauper. A person is an indigent person who is not having
sufficient means to pay the fee for the plaint or where no such fee is prescribed, he is not entitled to
property worth rupees 1,000.

Object:-

Order 33 provides the provisions which are intended to enable an indigent person to institute
and prosecute suits without payment of the court fees under the Court Fees Act plaintiff showing in the
court of law is bound to pay Court fees prescribed presentation of the plaint. Under this Order, the
person is exempted from paying the court fee at the first instant and allow him to prosecute his suit
provided certain conditions laid down in this order 33 has been enacted to server triple purpose-

i. to protect Bonafide cleans of an indigent person

ii. to safeguard the interest of revenue and
iii. to protect the defendant from harassment

Procedure to file a suit as an indigent person:

Before filing a suit as an indigent person begins, it is important to add all the relevant contents
in the application seeking permission to be an indigent person. As per Rule 2 of Order XXXIII, the
application must include the particulars similar to what is mentioned in the plaint and all movable or
immovable properties of the indigent person/applicant along with its estimated value.

The indigent person/applicant shall himself in person present the application before the court. In case,
such a person is exempted from appearing in the court, an authorized agent may present the application
on his behalf. In certain circumstances where there are two or more plaintiffs, the application can be
presented by any of them. The suit begins as soon as the application to sue as an indigent person is duly
presented before the court. Subsequently, the indigent person/applicant is examined by the court.
However, if the applicant is being represented by his agent, then in such a case, the court may examine
the applicant by the commission.

Rejection of application-

In the following cases an application for permission to show as an indigent person will be rejected
by the court:-

i. if the application is not framed and presented prescribed manner; or

ii. if the applicant is not an indigent person; or
iii. if the applicant has disposed of any property fraudulently in order to get permission to sue as
an indigent person within two months before the presentation of the application; or
iv. if there is no cause of action; or
v. if the applicant has entered into an agreement with reference to the subject matter of the
shoot under which another person has obtained interest; or
vi. if the suit appears to be barred by law.

Case Law: Union Bank of India v. Khader International Construction,AIR 2001

The Hon’ble Supreme Court in this case held that Order 33 CPC is an enabling provision that
allows the indigent person to file a suit without paying the court fee at the initial stage. In case the
plaintiff succeeds in the suit, the court calculates the amount of court fee which would have been paid
by the plaintiff if he had not been permitted to sue as an indigent person and that amount would be
recoverable by the State from any party ordered by the decree to pay the same. However, if the suit is
dismissed, then also the State would take steps to recover the court fee payable by the plaintiff and this
court fee shall be a first charge on the subject- matter of the suit.

Conclusion:-

From the above discussion we have seen that Order 33 of the CPC deals with the
provision suit by Indigent person. It provides various safeguards to the indigent persons to protect their
various rights and to provide justice. Thus it is considered as an important part f the Code of Civil
Procedure Code.

Q no 15: Discuss the provisions of the CPC dealing with jurisdiction of civil
courts.
Introduction

It is a well-known fact that jurisdiction is a key component in determining whether or not the
court has the power to adjudicate the case. Without a clear understanding of the jurisdiction, one
cannot proceed with a case. Unless and until it is determined that the court has the power and authority
to adjudicate the matter, the case cannot move forward. Jurisdiction means the power or authority
conferred by the law upon the court, tribunal or judge to decide or adjudicate any dispute between the
parties or pass judgment or order.

Meaning of Jurisdiction:

Jurisdiction the word is derived from Latin terms juris and dicto which means speak by the law. In other
words, Jurisdiction means the authority or power which a court has in order to decide upon matters that
are litigated before it or issue a decree regarding the same. It also means the geographical area within
which the legal or judicial authority can be exercised.

Types of Jurisdictions:

In India, there are mainly 5 types of jurisdiction which can be classified as follows:

i. Territorial Jurisdiction: Every Court has its very own territorial limits far away in which it
cannot operate its jurisdiction, these limitations by which are fixed by the government. The
District Judge has to operate jurisdiction within his district. The High Court has jurisdiction over
the territory of state within which it is situated and not beyond it.
ii. Pecuniary Jurisdiction: The word pecuniary means money. Hence it refers to the power of
courts to decide cases that are within monetary limits. In other words, the suit is maintainable in
the court if its value does not exceed the monetary limits of the court.
iii. Subject Matter Jurisdiction: It refers to the power of courts to try the cases related to a
particular subject. The courts cannot try those cases whose subject is beyond their power of
jurisdiction.
iv. Appellate Jurisdiction: Appellate jurisdiction refers to the power of courts to decide the
appeals of cases that the sub-ordinate courts have already decided.
v. Original Jurisdiction: Original jurisdiction refers to the power of courts to take judicial note of
any matter in the first instance.

Jurisdiction of civil court:

Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in India. It
declares that the court shall have jurisdiction to try all lawsuits of civil nature accepting suits of which
their cognizance is either expressly or impliedly barred.

A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:

i. The suit must be of a civil nature:

 Any suit that is not criminal in nature can be termed as a suit of a civil nature. Any suit that
pertains to determination and implementation of civil rights may be defined as a civil suit. In the case
of Kehar Singh Nihal Singh Vs Custodian General, the court elaborated the concept of Civil proceeding. It
was defined as a grant of private rights to individuals or corporations of society. The objective of the
action is the reward or recovery of private rights. In other words, the civil action may be described as the
proceeding between two parties for implementation or redressal of private rights.

ii. The cognizance of such a suit should not have been expressly or impliedly barred:

A claimant having a complaint of a civil nature has the power to begin a civil suit unless
its cognizance is barred, either expressly or impliedly. A suit is said to expressly barred when it is
prohibited by the statute for the time being in force. It is subject to the competent legislature to bar the
jurisdiction of civil courts with regard to a specific class of suits of civil nature, provided that, in doing so
it retains itself within the scope of legislation given to it and does not contradict any terms of the
constitution.

A suit is said to be impliedly barred when it is said to be excluded by general principles of law. When a
specific remedy is given by statute, it, therefore, denies a person who requires a remedy of any different
form than is given by statute. When an act formed an obligation and made its performance in a specified
manner that performance cannot be implemented in any other manner.

Principles of exclusion of jurisdiction of civil court

In the case of Dhulabhai v. state of MP AIR 1968 Justice Hidyatullah summarized the following
principles relating to exclusion of jurisdiction of civil courts:

i. When a statute provides finality to the orders of particular tribunals, the civil court jurisdiction
must be kept to be prohibited. Such a provision does not eliminate those cases where the terms
of the act have not complied with fundamental laws of judicial method.
ii. When there is an express bar of jurisdiction of the court, an examination of a scheme of a
particular act to find the adequacy or sufficiency of remedies provided may be important but
this is not crucial for maintaining the jurisdiction of a civil court
iii. It examines the terms of a specific act as ultra vires cannot be brought before tribunals
constituted under the act. Even the High Court cannot go for revision or reference from the
decision of the tribunal.
iv. When the terms are already stated illegal or declared the constitutionality of any terms is to be
challenged, then a suit is open. A writ of certiorari may introduce a direction to refund but it is
not a necessary remedy to compensate a suit.
v. When the particular Act includes no method for a return of tax collected in excess of
constitutional goals, a suit lies.
vi. Prohibition of the jurisdiction of a civil court is not ready to be inferred unless the conditions
above set down apply.

Case Law: State of A.P. Vs Majeti Laxmi Kanth Rao, 2000

 In the case of State of A.P. Vs Majeti Laxmi Kanth Rao, the apex court has analysed to
decide the elimination of jurisdiction of the Civil Courts. Firstly, the legislative intent to remove the suit
is to be decided. It could be either directly or implicitly. The court needs to find and deduce the causes
for the exclusion of the Civil courts and the explanation for it but the reason is not directed for judicial
examination. After the court is convinced with the grounds, the court must find out whether the statute
that prohibits the jurisdiction grants for an alternative remedy. In case there is no alternative remedy
possible, the civil court’s jurisdiction cannot be eliminated.

Conclusion:

Civil court has jurisdiction to investigate whether tribunal and quasi-judicial bodies or legal
executive acted within their jurisdiction. It can be presumed that section 9 essentially deals with the
issue of the civil court’s jurisdiction to consider a matter. Civil court has jurisdiction to consider a suit of
civil nature except when it’s notification is expressly barred or bared by significant suggestion. Civil court
has jurisdiction to resolve the problem of its jurisdiction.

Q no 16: On what ground a second appeal lies? State the circumstances

when a new point can be raised for the first time in second appeal.

Introduction:

The expression ‘appeal’ has nowhere been defined in the Code of Civil Procedure, 1908. An
appeal, according to Black’s Law Dictionary is “The complaint to a superior court of an injustice done or
error committed by an inferior one, whose judgment or decision the court above is called upon to correct
or reverse. The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose
of obtaining a review and retrial.” In a similar manner, a second appeal lies against the decree passed by
the lower court that heard the first appeal. An appeal is a statutory and substantive right and not merely
a legal right. The recourse to it can only be taken when it is expressly prescribed by the statute.

Meaning of Second Appeal:

Second appeal means an appeal (one more appeal) from/against the decision of an appellate
Court A second appeal shall lie in the High Court from a decree passed in appeal by any court
subordinate to the High Court. Sections 100-103, Order 42 lays down the provisions relating to the
Second Appeal

On what grounds does a Second Appeal lie?

Section 100(1) says that a second appeal can be filed before the High Court if the High Court is
satisfied that the case involves a substantial question of law. Sub-clause (3) says that the substantial
question of law has to be stated in the memorandum. Sub-clause (4) says that High Court must
formulate that question of law. Section 100(5) provides that the respondent shall be allowed to argue
that the case does not involve any question of law at all. If the scheme of the provision is analysed, it can
be seen that every case has been taken to limit the number of second appeals.
 Section 101 reads as “Second appeal on no other grounds— No second appeal shall lie except on
the ground mentioned in section 100.” therefore, it specifically bars the second appeal on any other
ground mentioned in Section 100. The grounds on which a Second Appeal shall lie are:

i. that the appeal should involve a substantial question of law that may either be presented by the
party in a memorandum of appeal or the court may itself formulate such question;
ii. that the second appeal may be brought forth where the decree was passed ex parte;

Circumstances when a new point can be raised for the first time in second appeal

The Circumstances when a new point can be raised for the first time in second appeal:-

i. Firstly, when a necessary issue has not been determined by either the Lower Court or the Court
of the first instance.
ii. Secondly, when the necessary issue has been wrongly determined by the Courts on the
substantial question of law which can properly be the subject matter of the second appeal under
Section 100.

In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors AIR 1978 the question came up
before the court that whether the compromise decree was obtained by fraud. The court held that
though it is purely a question of fact none of the lower courts has dealt with the question whether the
decree was obtained by committing a fraud on the Court and hence, this court can look into the
question of fact by exercising its power under Section 103.

Further, the court clarified in Ramji Bhagala v. Krishnarao Krirao Bagra that an appellate
court cannot partly admit and partly reject a second appeal under Section 100 and Section 101. It should
either admit it wholly or reject it wholly.

Conclusion:

The right to appeal arises as soon as the judgement is pronounced by a competent court. It
is not essential that such right is given only to the party on whom an adverse decision is pronounced but
is applicable to both parties equally. Thus, the right to appeal is vested on the parties as soon as the
proceedings begin and arises when a judgement is pronounced. It can be summarized that the law can
at most extent be applicable to cases involving a substantial question of law and it becomes the
responsibility of the appellate court to formulate such a question after referring to the memorandum of
appeal submitted by the court.

Q no 17: “When once time has begun to run, no subsequent disability or

inability to sue stops it.” Explain. State the exception if any.

INTRODUCTION:
 Under Limitation Act 1908, where once time has begun to run, it runs continuously and without
any break until the entire prescribed period has run out and no disability to sue occurring Subsequently
to the commencement will stop it running. Section 9 of the Act deals with the [Link] section is
founded on the general principle that when once limitation has commenced to run, it will continue to do
so unless it is stopped by virtue of any express statutory provisions.

Continuous Running of Time – No subsequent disability or inability to institute a

suit or make an application can stop it:

Continuous running of time [Section 9]: Once a period of limitation starts no subsequent
disability or inability can stop it. The applicability Section 9 is limited to suits and applications only and
does not apply to appeals unless the case fell within any of the exceptions provided in the Act itself.
Section 9 applies when the cause of action or right to move the Court continues to exist on the date of
making the application. Thus, the time runs, when the cause of action accrues. Thus, once time has
begun to run, no subsequent disability or inability stops it.

Example: Ram died on 3rd August, 2016 before a right to institute a suit accrued, leaving behind a minor
son of the age of 15 years. Decide the time from where the period of limitation shall be calculated under
Limitation Act, 1963.

Section 9 of the Limitation Act, 1963 states that, once time begins to run no subsequent
disability or inability can stop to institute a suit or make an application. For a given case, the period of
limitation will run from the date of loan (i.e. cause of action). There is no disability at that time and time
has begun to run from the date of loan itself. Subsequent disability i.e. the son was minor have no use.
The limitation period in this case will end after 3 years from the date of loan (i.e. cause of action).

Exceptions:

However, certain exceptions were provided in Sections 4 to 8. The various exception of

Section 9 of Limitation can be iscussed in the following heads-

i. Letters of Administration: Where letters of administration to the estate of the creditor have
been granted to his debtor, the running of time in favors of such debtor is suspended for so long
as the administration continues.
ii. Period of Limitation: In computing the period of limitation prescribed for an appeal, an
application for leave to appeal, and an application for a review of judgment. the time requisite
for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed
shall be excluded. Likewise, in the case of an application to set aside an award, the time
requisite for obtaining a copy of award shall be excluded.
iii. Absence of Defendant: When the defendant is absent from Pakistan or under the administration
of the Federal Government.
iv. Court Without Jurisdiction: When the plaintiff has been prosecuting another civil proceeding
bona fide in a court without jurisdiction.
 v. Stay the Institution of Suit: When an injunction order has been obtained to stay the institution
of a suit.
vi. Notice: When notice has been given before the institution of suit in accordance with law. The
limitation shall be suspended during the period of notice,
vii. Suit for Possession: In a suit for possession by a purchaser at an execution of sale, the limitation
shall be suspended during the time for which the proceeding to set aside the sale has been
prosecuted.

CONCLUSION:

We may conclude that Section 9 of Limitation Act 1908 says that once time has begun to run, it
continues to do until the entire prescribed period has run out. However, there are certain circumstances
which suspend or extend the run of the limitation and there are certain cases where limitation does not
run at all.

Q no 18: “Limitation bars the remedy but does not extinguish the title”-
Explain.

Introduction:

‘The law of limitation only bars the judicial remedy and does not extinguish the right’. In other
words, It means that the statute of limitation prescribes only the period within which legal proceedings
have to be initiated. It does not restrict any period for setting up a defence to such actions. The
statement, "right" is used to mean a primary & substantive right. In the wider sense of the word remedy
is also a right but a secondary right, a procedural right. The rule that limitation bars the remedy but not
the right is contained in Section 3 of the Act.

Limitation bars the remedy but does not extinguish the title:

Section 3 of the Law of Limitation states that every suit instituted, appeal preferred &
application made after the prescribed period shall be dismissed. The second part of the rule that it does
not bar the right is a necessary corollary of the first since Section 3 only bars the judicial remedy.

The rule of limitation is a rule of procedure, a branch of adjective law. It does not either create
rights or extinguish rights, except in the case of acquisition of title to immovable property by
prescription under Section 27 of Limitation Act, 1963. After the remedy is barred by limitation, the right
remains as a moral obligation or can be availed to furnish consideration for a fresh enforceable
obligation. So a right to the debt does not cease to exist only because its recovery is barred by the
statute of limitation. A debtor can pay the "time barred debt" and cannot claim it back on the plea that
it was barred by limitation.

Similarly, if a debtor has several debts due to a creditor & he makes payment without any
specification, then the creditor can adjust it towards any of the debts even if recovery of such debts is
barred by time. Since the limitation bars the remedy by filing a suit & does not extinguish the right, a
defendant can set up a right in defence though he could not have enforced the right by way of a suit.
There is no limitation against a defence.

The only exception to this rule that limitation bars the remedy and not the right is contained
in S. 27 of Limitation Act, 1963. S. 27 states that in a suit for possession of any property, on the
determination of limitation period, not only the remedy but the right is also extinguished. In such a
circumstance, a defendant cannot also set up such an extinguished right by way of defence.

Case Law: Balakrishnan v. M.A. Krishnamurthy (1998) 7 SCC 123

In Balakrishnan v. M.A. Krishnamurthy (1998) 7 SCC 123, it was held by the Supreme
Court"that the Limitation Act is based upon public policy which is used for fixing a life span of a legal
remedy for the purpose of general welfare. It has been pointed out that the Law of Limitation are not
only meant to destroy the rights of the parties but are meant to look to the parties who do not resort to
the tactics but in general to seek remedy. It fixes the life span for legal injury suffered by the aggrieved
person which has been enshrined in the maxim interest reipublicaeut sit finis litium' which means the
Law of Limitation is for general welfare and that the period is to be put into litigation and not meant to
destroy the rights of the person or parties who are seeking remedy. The idea with regards to this is that
every legal remedy must be alive for a legislatively fixed period of tile"

Conclusion:

From the above discussion we have seen that Law of Limitation only bars the judicial remedy and
does not extinguish the right. But it does not mean that Law of Limitation are not only meant to destroy
the rights of the parties but are meant to look to the parties who do not resort to the tactics but in
general to seek remedy. Thus it is considered an important part of the law of limitation.

Q no 19: What is Review? On what grounds a review is allowed? What are

the difference between Review and Appeal?

Introduction:

The Right of Review is granted by Civil Procedure Code as a remedy to be sought for an
applied under special circumstances and conditions. The objective of this right is to correct the error or
any mistake made in the decision of the court. Review of judgment is the substantive power of review
by the court mentioned in Section 114 of CPC. This section doesn’t provide any limitations and
conditions for review. The limitations and conditions are provided in Order 47 of the Civil Procedure
Code. Order XLVII contains nine rules which impose some condition for the review.

Meaning of Review:

The dictionary meaning of review is ‘to examine or to study again’. So, the review of judgment is
to examine or study again the facts and judgment of the case. But in the legal parlance, it is a judicial re-
examination of the case by the same court and by the same judge. In certain circumstances, a judge
reviews an earlier order passed by him, called review.

Grounds for Review:-

There are many grounds on which an application for review of a judgment may be made which
are as follows:-

i. Discovery of new and important matter or evidence Order 47 Rule 1:- The first ground
for an application of review is the discovery of new evidence. Whenever applicant discovered
new fact or important matter evidence after exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the decree was passed,
application of review is permissible.
ii. Mistake Apparent on the face of record:- The second ground for review is a mistake or an
error apparent on the face of the record. Such error may be one of fact or of law. Mistakes can
be said to be an error apparent on the face of record if it is not self-evident and requires an
examination or argument to establish it.
iii. Other sufficient reason:- The last ground for review is “any other sufficient ground”, but
actually it has not been defined in the code. However, relying on the judgment of the Privy
Council and the Federal Court, the Supreme Court has held that the word “any other sufficient
reason” must mean “a reason sufficient on grounds, at least analogous to those specified in the
rule”.

Difference between Review and Appeal

I. Review is mostly concerned with the correctness of the legal matters of a decision

Whereas an appeal is mostly concerned with the correctness of the decision itself.

II. Section 114 and Order 47of CPC deals with Review,

Sections 96 to 112 and Orders 41 to 45 of CPC deal with appeals.

III. Review is filed in the same court

Whereas appeal is filed in a higher court.

IV. Appeal is a statutory right of the individual

Whereas review is a discretionary right of the court.

V. Procedural irregularity, impropriety, irrationality, and illegality form the basis of a review

Whereas there can be grounds of dissatisfaction or disappointment for filing an appeal.

VI. An appeal is a request to change or modify the decision or verdict

 Whereas review is a request to look into the legality of the ruling.

Conclusion:

The power of reviewing of its own judgment is conferred on the court. Section 114 and Order 47
of Civil procedure Code provides the right to review the judgment. Section 114 provides only right to
review the judgment and order 47 of CPC provides limitations and conditions. Article 137 of the Indian
Constitution allowed the Supreme Court to review its own orders and judgment. The objective behind
this power is to ensure justice. It is rightly said that “Law has to bend before justice.

Q no 20:What is an “Issue”? When the issues are framed? What are

the effects of non framing of issues in suit?

Introduction:-
Framing of issues is probably the most important part of the trail of a civil suit. For a
correct and accurate decision in the shortest possible time in a case, it is necessary to frame the correct
and accurate issues. Inaccurate and incorrect issues may kill the valuable time of the court. Siddhi
Chunilal vs. Suresh Gopkishan (2009(6) BCR 857) In this case, it was observed that if correct and
accurate issues were not framed, it leads to gross injustice, delay and waste of the court’s valuable time
in deciding the matter. Order 14 of the CPC deals with framing of issues.

Definition of issues:-
Issues mean a single material point of fact or law in litigation that is affirmed by one
party and denied by the other party to the suit and that subject of the final determination of the
proceedings.
When issues are framed?

When plaint is presented to the court the case is set in motion. Subsequently the written
statement is filed by the other party. After that issues are framed. The day on which the issues are
framed is termed the day of “first hearing of the suit”. On the first day of the suit the court shall
ascertain from each party whether he admits or denies the allegation in the plaint.

It is after “the first hearing of the suit” from the parties, reading the plaint and the written
statement, and ascertaining on what material proposition of fact or law the parties are at variance, the
court frame issues. The right decision in any case dominantly rests on the correctness of the issues
[Link] the defendant makes no defence in the first hearing of the suit, there is no need to frame the
issues. Issues are framed to avoid surprises in the trial and enable the parties know what points they
need to provide evidence on. The averments not denied in the written statement are taken as admitted.

The issues may be framed by the Court from all or any of the following materials—

i. Allegations made on oath by the parties, or by any persons present on their behalf, or made by
the pleaders of such parties;
ii. Allegations made in the pleadings or in answers to interrogatories delivered in the suit;
 iii. The contents of the documents produced by either party.

The court can even examine witnesses or documents not brought before it, before framing the
issues if it is not possible otherwise. For bringing them before the court seven days adjournment is
possible. The court can amend, add or delete issues at any time before passing a decree if such changes
are necessary in the interest of justice.

Duty of the court in framing issues:

It is the duty of the court to frame proper issues. The judge must apply his mind and understand
the facts of the case when framing issues. If the court frames improper issues, the parties can move the
court for framing proper issues. Framing of issues largely depends on literary skill of the judge. Issues
should be precise, crystal clear and to the point.

The court may examine the witness or inspect the documents before framing or amending the
issues. If the parties agree to a question of fact or law in issue between them, they may state it in the
form of an issue and the court can issue judgment on the issue.

The framing of issues is the crucial part of the trial. Only on laying down the foundation of the
case with proper issues, is it possible for the court to go along the right lines and come to the right
judgment in a case.

The stage of framing issues is an important one. It is on that day the scope of the trial is determined by
laying the path on which a trial should proceed. Omission to frame an issue is an irregularity, but not a
material one to vitiate the proceedings if it does not affect the merit of the case. Even if wrong issues
were framed, the decree would not be set aside unless it is a prejudicial one.

Conclusion:-

From the above discussio it can be said that the issues are very important not only for
the parties but also for the Court. Parties are required to prove or disprove the issues framed by the
court, not the pleading. On the other side, court is also bound to give decision on each framed issue.
Therefore, the Court is not to decide those matters on which no issues have been framed.

1. Difference between Appeal and Revision

i. An appeal lies to a Superior Court from every original decree unless expressly barred.
 But a revision to High Court is available only in those cases and against such
orders where no appeal lies.

ii. A right of appeal is one of substantive nature conferred by the statute.

There is no such right of revision because revisional power is purely discretionary.

iii. A Court of appeal can, in the exercise of its powers, set aside the findings of facts of subordinate
Courts.

The High Court or the revisional Court cannot, in the exercise of its revisional powers, set
aside the findings of facts of subordinate Courts.

iv. An appellate jurisdiction can be exercised only through a memorandum of appeal filed before
the Appellate Court by the aggrieved party and cannot be exercised suo motu.

The revisional jurisdiction can be exercised suo motu as well.

v. An application for appeal is maintainable on legal grants as well as on question of fact.

An application for revision is maintainable on the ground of jurisdictional error.

vi. An appeal abates if the legal representative of the deceased are not brought on record within
the time allowed by law.

A revision may not abate and the High Court has a right to bring the proper parties
before the Court at any time.

Q no 2: Difference between first Appeal or Appeal and Second

Appeal.

i. Sections 96 to 99-A, 107 and Order 41 deal with First appeal.

On the other hand Section 100 to 103 and Order 42 deal with Second Appeal,

ii. A first appeal lies against a decree passed by a court exercising original jurisdiction,

A second appeal lies against a decree passed by a first appellate court,

iii. The first appeal can be admitted on the grounds of question of fact, and question of law, or on
a mixed question of fact and law,

But the second appeal can only be admitted only on the point of ‘ substantial question of
law’.

iv. The first appeal can be entertained by a subordinate Court which may or may not be a High
Court,
 The second appeal can only be entertained by the High Court,

v. The Memorandum of first appeal must set out the grounds of objections to the decree
appealed from.
But in Second Appeal it needs not set out the grounds of objections to the decree
appealed from.

Q no 3: Difference between Review and Revision

i. Review refers to the re-examination and re-evaluation of a case previously decided on by the
same court.

Revision refers to the power of court at a higher level of hierarchy to revise the judgment
of its subordinate courts.

ii. Review power is mentioned in Section 114 of the Civil Procedure Code of India (1908) and
Article 137 of the Constitution (for the Supreme Court).

The provision of Revision is mentioned in Section 115 of the Civil Procedure Code of India (1908).

iii. Review is an intra-court provision, that is, it can be filed only in the court that passes the
original decree.

Revision is an inter-court provision, that is, it is filed against the decision of one court in the
other, higher-level court.

iv. The Review petition can only be filed if either no appeal has been filed earlier or appeal is not
allowed by the judgment.

The Revision petition is filed in case of misuse of jurisdictions by a subordinate court.

v. The court entertains a Review if any new evidence or erroneous misinterpretation of any fact is
discovered.

The court entertains a Revisionif any uneven or improper or unfair decree by the
subordinate courts.

vi. Any Review petition must be filed within a period of 30 days after the court’s decree is passed.

Any Revision petition must be filed within a period of 90 days after the court’s
decree.

vii. The Supreme Court agreed to review its verdict on Sabarimala Case.
A Revision was filed in Amir Hasan v. Sheo Baksh Singh.
Q no 4: Difference between Set-off and Counter Claim

i. Set-off is been defined in rule 6 order 8 of CPC

Whereas counter claim is been defined in 6A-6G of order 8

ii. Set off has 2 types, one is equitable set-off and other is legal set off.

But Counterclaim has no such classification.

iii. Set off should be made up from the same transaction

Whereas a counter-claim need not arise out of the same transaction.

iv. The amount of set-off must be recognized at the date of suit

Whereas in counter claim at the date of the written statement.

v. Set-off is a defence to plaintiff’s action

whereas counterclaim is cross action.

Q no 5: Difference between Legal set-off and Equitable Set-off

i. In a legal set-off, the amount claimed must be an ascertained sum of money,

While in an equitable set-off, the claim is allowed even in regard to an unascertained sum of
money.

ii. In a legal set-off, the Court is bound to entertain and adjudicate upon the plea when raised.

In the case of an equitable set-off, however, it is not obligatory on the Court to

adjudicate upon it and the defendant cannot claim it as a matter of right.

iii. In a legal set-off, it is not necessary that the cross-demands arise out of the same
transaction,

But in an Equitable set-off, it is mandatory that the cross-demands arise out of the same
transaction.

iv. In a legal set-off, the amount claimed to be set off must be legally recoverable and not time
barred

But in Equitable set-off even if the claim is barred by time and there is a fiduciary relationship
between the parties then the court can entertain it.

v. In a legal set-off, the court fees are required because a separate suit could have been filed
but due to the convenience of the defendant and the court, it was merged with the claim of
the plaintiff.
 However, court fees aren’t required in case of equitable set-off.

vi. If the defendant’s claim is barred at the date of the written statement but not barred at the
date of the suit, the defendant can get an equitable set-off to the extent of the plaintiff’s
claim,

In a legal set-off, the whole claim is admissible and the defendant can even get a decree
for the balance.

Q no 6: Difference between Review and Appeal

VII. Review is mostly concerned with the correctness of the legal matters of a decision

Whereas an appeal is mostly concerned with the correctness of the decision itself.

VIII. Section 114 and Order 47of CPC deals with Review,

Sections 96 to 112 and Orders 41 to 45 of CPC deal with appeals.

IX. Review is filed in the same court

Whereas appeal is filed in a higher court.

X. Appeal is a statutory right of the individual

Whereas review is a discretionary right of the court.

XI. Procedural irregularity, impropriety, irrationality, and illegality form the basis of a review

Whereas there can be grounds of dissatisfaction or disappointment for filing an appeal.

XII. An appeal is a request to change or modify the decision or verdict

Whereas review is a request to look into the legality of the ruling.

Q no 7: Difference between Necessary Party and Proper Party

a. Necessary party is one whose presence is indispensable to the constitution of the suit,

Whereas, in case of a proper party, it is not so.

b. A necessary party is without whom no effective order can be passed,

Whereas, A proper party is one, in whose absence an effective order can be passed.

c. In absence of necessary party, no decree can be passed.

In the absence of a proper party a decree can be passed.

 d. The court may dismiss the case in the absence of necessary parties, as it will not be able to make
an effective decision.

But in case of Proper party it not same. In other words it cannot be dismissed.

e. Example : A suit is filed by the house owner against a tenant. The tenant is a necessary party. A
sub-tenant is only a proper party.

Q no 8: Difference between Procedural Law and Substantive Law

A. Substantive law is about the definition of people’s rights, duties and power,

While procedural law is about prescribing the form and order by which the law will be
enforced.

B. Substantive law defines how the facts in a case will be handled,

While procedural law defines the step-by-step process that the case will go through.

C. Substantive law cannot be applied to non-legal contexts,

While procedural law can be applied to non-legal contexts.

D. Substantive law defines how the case is handled, and how a crime is to be charged,

While procedural law describes the manner in which a case will proceed.

E. Substantive Law related to the matters outside the court,

Procedural Law related to the matters inside the court,

F. Substantive Law is governed by the act of Parliament

While Procedural Law is governed by the Statutory Law

Q no 9: Distinction between suit and appeal

a. Suit, broadly speaking is a legal case calling for proceedings by a plaintiff against the defendant,
to redress the grievance or make good the loss suffered, in a civil court.

An appeal is a matter taken to a higher court against the judgement delivered by a lower
court for further evaluation and judgement.

b. A suit is where a cause of action is created and issues are disputed on questions of both facts
and law.
 An appeal only reviews and corrects proceedings in a case which already is constituted, but
does not create a cause.

c. A suit is an attempt to archive an end via a legal producer instituted in a court for someone
claim.

An appeal is continuation of a suit.

d. A suit is filed in the trial courts.

An appeal is filed in an appellate court for purpose of reviewing the decision of court.

Q no 8. Legal Disability

Section 6 of Limitation Act, 1963 lays down legal disability as an exception to the limitation period.
If a person who is entitled to institute a suit or an application, at the time when the prescribed period is
running, is a minor, insane, or an idiot, such person may file the suit or application within the same
period once such disability has ceased to exist.

Further, if a person is affected by two disabilities at once, or if, before one disability could
cease, he is affected by another, then he may file a suit or application once both the disabilities have
ceased to exist. Also, if a person’s disability causes him to die, then a legal representative of such person
is entitled to file the suit or application.

Kinds of Legal Disability:

Section 6(1) of the Limitation Act, 1963 provides three types of legal disability. These are -

a) Minor: As per section 3 of the Indian Majority Act, 1875 a person becomes major when he
attains the age of 18 years. For the welfare of the child, the court appoints the guardian until
he/she attains the age of majority
b) Insane: It is explained in one of the cases named SK Yadav v State of Maharashtra, and the
Supreme Court, in this case, stated that there is no specific way to check the insanity of the
person. It can only be determined preceding, accompanying, and after the event’s behaviors.
c) Idiot: Idiocy is when the person is not able to count the days of the week, unable to tell the
days of the week, has non-sane memory since birth and is unable to count twenty.

Rules related to Legal Disability under the Limitation Act, 1963

The rules related to legal disability are enshrined under sections 3,6,7,8 and 9 of the Limitation
Act, 1963. Section 3 is the most crucial section which provides for the time period in which a person can
file a suit beyond the concept of limitation which stops the person from filing the suits. Section 4-24
contains the exceptions in case of extraordinary situations. There are three grounds available on which a
person can file a suit beyond the periods of limitation i.e. minor, insane, and lunatic. Section 8 relates to
section 6(2) in which the concept of multiple disabilities is discussed and this section 8 states that the
time period of limitation is 3 years after the death of that very person or ceasing of his disability. Section
9 states that once the period has begun, no further disability can reschedule its time period.

Rules enshrined under CPC related to Legal Disability

As per Order VIII, Rule 5(1) if a specific charge is not filed the suit shall stand dismissed and if the
defendant has specifically denied or failed to recognize something then it will be admitted specifically
except against those persons who are suffering from legal disability.

Section 6(3) is to be r/w Order 22 which says that the legal representative can be a party to the suit
on the behalf of the deceased plaintiff. Also as per Order 22, if no legal representative of the deceased is
left then the court can appoint the administer general or such other officer as it thinks fit to represent
his estate.

Conclusion

After analyzing the various aspects of legal disability under Limitation Act and Code of Civil
Procedure it can be said that there are some situations under which a person can file a suit or move an
application after the expiration of limitation period and it also provides us the facility of filing a suit if a
person dies before the said date. It also provides a remedy if there is no legal representative. One of the
defensive mechanisms is used to keep an eye on the people so that they cannot misuse it.

Q no 9: Sufficient Cause

The term sufficient cause is not defined under the Limitation Act. It means a cause beyond the
control of the party. It should be Interpreted in the light of the definition 'good faith' given in Section
2(h) of the Limitation Act i.e. 'nothing shall be deemed to be done in good faith which is not done with
due care and attention'. The doctrine of “Sufficient Cause” for time extension is the same as the
condonation of delay. In order to seek condonation of delay, one must show the “sufficient cause” of
delay.

The sufficient cause has to be considered with pragmatism and of course with justice
oriented approach but 'any cause' cannot be construed as 'sufficient cause'. The words 'sufficient cause'
must generally receive a liberal construction so as to advance substantial justice when no negligence or
inaction or want of bona fides is imputable to appellant. Example: Imprisonment, illness, heavy rain,
strike, bandh, wrong advice by; the advocate or his clerk are the examples of sufficient cause.

Sufficient cause for non-appearance of the parties:

Basing on different judgments, the following are the grounds to condone delay under sufficient
cause-

i. Personal illness (illness of the party), his wife's or child's etc.

ii. Delay due to accident was accepted as sufficient cause.
 iii. Delay due to non-supply of information to party by counsel in ex parte decree is sufficient cause
for condonation of delay.
iv. Delay in getting certified copy of the judgment and decree is sufficient cause to condone the
delay in appeal.
v. The imprisonment of a party may constitute a sufficient cause for excusing delay in preferring an
appeal.
vi. Mistake by a lawyer not due to negligence is a good ground for condoning the delay.
vii. Mistake of Court is sufficient cause to condone the delay.
viii. Pendency of writ petition before Apex Court is sufficient ground for condoning the delay in
availing of those remedies.

State (NCT of Delhi) v. Ahmed Jaan, AIR 2008

The petitioner had filed an appeal for condonation of delay, however the file got mixed up in the
Registry of High Court. The question before the court was whether to allow delay in filing and re-filing of
appeals. In this case, it was held that what counts is not the length of the day but the sufficiency of a
cause i.e. the Court should follow a pragmatic and rational approach in explaining every single day’s
delay. The delay was condoned and appeal thereby dismissed.

Q no 10: Condonation of Delay

Condonation of Delay finds its mention in Section 5 of the Limitation Act. The condonation
of delay means the extension of prescribed time in certain cases subject to sufficient cause. The concept
of condoning a delay is primarily preferred to the applications and appeal and does not cover the suits.
The rationale behind the doctrine not including the suit is that this doctrine is regarded as an exception
to the general rule that is Bar of limitation under the legislation and hence, it does not include suit.

General principles regarding condonation of delay

The Supreme Court in the case of Collector Land Acquisition v. Mst. Katiji & ors, AIR 1995 Guj 29,
has laid down some guiding principles which the Courts must follow while dealing with the issue of
condonation of delay. They are as follows:

i. The Court must ensure that the party has not filed the appeal late, to somehow benefit from
late filing. There must be no vested interest in the late filing.
ii. Merits of the matter are to be heard only if the Court is satisfied by the sufficient cause and the
delay has been condoned. On the refusal of condonation of delay, the appeal stands rejected.
iii. The Court doesn’t need to take a pedantic approach and examine every detail. That will merely
cost more of the Court’s and party’s time. However, the decision must be in a pragmatic and
rational manner.
iv. If the situation arises wherein the Court has to choose between the technical considerations and
substantial justice. The latter should be chosen, no injustice should be done for a bona fide
mistake.
 v. The Court should not presume that the delay in filing was deliberate. It must keep an open mind
and consider all the reasons for the delay before deciding.

Exceptions to Condonation of Delay – Section 5

There are certain exceptions relating to the ambit of the doctrine of condonation of delay (Section
5):-

i. The doctrine is applicable to Criminal Proceedings only.

ii. The doctrine does not include “suit” and only covers appeals and applications.
iii. Other than an application under any of the provisions of Order XXI of the Code of Civil
Procedure, 1908. The doctrine covers all appeals and applications.

State (NCT of Delhi) v. Ahmed Jaan, AIR 2008

The petitioner had filed an appeal for condonation of delay, however the file got mixed up in the
Registry of High Court. The question before the court was whether to allow delay in filing and re-filing of
appeals. In this case, it was held that what counts is not the length of the day but the sufficiency of a
cause i.e. the Court should follow a pragmatic and rational approach in explaining every single day’s
delay. The delay was condoned and appeal thereby dismissed.

Q no 12: Suit by or Against Corporation

Order 29 of the Civil Procedure Code deals with the suit by or against corporation. In suits
by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the
secretary or by any director or other principal officer of the corporation who is able to depose to the
facts of the case.

Service on corporation:

Subject to any statutory provision regulating service of process, where the suit is against a corporation,
the summons may be served-

a) on the secretary, or on any director, or other principal officer of the corporation,

b) or by leaving it or sending it by post addressed to the corporation at the registered office, or if
there is no registered office then at the place where the corporation carries on business

STATE AMENDMENTS:

Uttar Pradesh: In its application to the State of Uttar Pradesh, in Order XXIX, rule 2, insert the following,
after clause -
 “(aa) on its corporation pleader in the district where the Court issuing summons is located, if one
has been appointed and the appointment has been notified to the District Judge under rule 10 of Order
XXVII, or.” [U.P. Act 57 of 1976]

HIGH COURT AMENDMENT

Karnataka.-In Order XXIX, after rule 2, insert the following rule, namely;-

"2A. Where the suit is against a local authority the Court in fixing the day for such authority to
answer the plaint shall allow a reasonable time for the necessary communication with any department
of the Government and for the issue of the necessary instruction to the pleader of the authority, and
may extend the time at its discretion." [Vide R.O.C. 2526 of 1959, dated 9th February, 1967.]

Power to require personal attendance of officer of corporation:

The Court may, at any stage of the suit, require the personal appearance of the secretary
or of any director, or other principal officer of the corporation who may be able to answer material
questions relating to the suit.

Q no 13: Summary Suit

Summary suit or summary procedure is given in order XXXVII of the Code of Civil Procedure,
1908. Summary procedure is a legal procedure used for enforcing a right that takes effect faster and
more efficiently than ordinary methods. Its object is to summarise the procedure of suits in case the
defendant is not having any defence. A summary suit can be instituted in High Courts, City Civil Courts,
Courts of Small Causes and any other court notified by the High Court. High Courts can restrict, enlarge
or vary the categories of suits to be brought under this order.

Object

The Gujarat High Court in outlining the object of summary suits opined that the sheer purpose
of enacting Summary Suits is to give impetus to commerce and industry by inspiring confidence in
commercial population that their causes in respect of money claims of liquidating amounts (ascertained
amount) would be expeditiously decided and their claims will not hang on for years blocking their
money for a long period.

The procedure of Summary Suits:

Rules 2 and 3 provide the procedure of summary suits. Under rule 2 after the summons of the
suit has been issued to the defendant. The defendant is not entitled to defend Summary suit unless he
enters an appearance. In default of this, the plaintiff will be entitled to an ex parte decree which is on a
different footing to an Ex Parte decree passed in ordinary suits.

In the case that the defendant appears, the defendant must apply for leave to defend within
ten days from the date of service of summons upon him and such leave will be granted only if the
affidavit filed by the defendant discloses such facts as may be deemed to entitle him to defend. The
cases where leave to defend should and shouldn’t be granted have been analyzed subsequently.
Institution of summary suits

In order to institute a suit under summary procedure, the nature of suit must be among the
following classes:- Suits upon bill of exchange, hundies and promissory notes

Suits for recovering a debt or liquidated demand in money, with or without interest,
arising:-

a. On a written contract, or
b. On an enactment (the recoverable sum should be fixed in money or it should be in the
nature of a debt other than a penalty), Or
c. On a guarantee (here the claim should be in respect of a debt or liquidated demand
only)

Conclusion: To sum up everything, summary suits are a unique solution to help prevent unreasonable
obstructions by the defendant. Summary suits are beneficial to commercial businesses as the plaintiff
would be entitled to a judgment if the defendant doesn’t have a substantial defense. Order XXXVII
ensures that the defendant does not prolong the litigation.

Q no 14: Notice u/s 80

Section 80 of the Code of Civil Procedure, 1908 states that ‘No suits shall be brought
against the Government, including the Government of the State of Jammu and Kashmir, or against a
public officer, in respect of any act purporting to be done by such public officer in his professional duties,
until two months have passed after notice in writing has been delivered to, or left at, the Government or
public officer’s office.’

The essential requirements of S. 80:

The essential requirements of S. 80 are as follows-

i. First, the addressee should be identified and must have received the communication;
ii. Secondly, there should be no vagueness or indefiniteness about the person giving the notice,
who must also be the person filing the suit and the notice must also give the details which are
specified in S. 80; and,
iii. Thirdly, the two months' time allowed must expire before the suit is laid. Once these
requirements are fulfilled minor details like the misdescription of the person to whom the
communication is addressed should not make it an improper notice which does not comply with
the requirements of S. 80, C.P.C

Object of Notice:

Underlying object of section 80 is to provide:

 i. An opportunity to the Government or public officer to consider the legal position and to settle
the claim forwarded by the prospective plaintiff if it appears to be just and proper.
ii. It is expected from the government unlike private parties to consider the matter objectively and
make an appropriate decision in two months after obtaining proper legal advice. It saves public
money and time and is in public interest.
iii. The legislative intent behind this provision is that public money not be wasted for unnecessary
litigation. The section guides the Government or a public officer to negotiate just claims and to
settle them if well-founded without adopting an unreasonable attitude by inflicting wasteful
expenditure on public exchequer.

CASE LAWS:

It was noted in State of Maharashtra v. Chander Kant that notice should be issued in all cases relating
to the first class of cases. In second-class situations, however, notice is required only if the action relates
to any act purporting to be carried out by such a public officer in discharge of his duties, and not
otherwise.

Q no 15: Interpleader Suit

Section 88 read with Order XXXV of the Code of Civil Procedure, 1908 deals with
interpleader suits. An interpleader suit is one in which the real controversy/dispute is not between the
plaintiff and the defendant, but is rather between the defendants only, who inter-plead against each
other. The hallmark of an interpleader suit is the fact that, in an interpleader suit, the plaintiff is not
really interested in the subject-matter of the suit. The primary and the foremost object of an
interpleader suit are to have the claims of rival defendants adjudicated, for, in an interpleader suit,
there must be some debt, or, some money, or, other property in dispute between the defendants only.
The plaintiff in an interpleader suit must be in a position of impartiality/non-arbitrariness.

Who May Institute an Interpleader Suit?

In National Insurance Co. Ltd. vs Dhirendra Nath Banerjee And Anr (1937), it was observed
that a person who has no interest in any debt, the sum of money or property except the charges or cost
and such person is willingly ready to pay or deliver the property to the rightful claimant may file an
interpleader suit.

Conditions for Instituting an Interpleader Suit:

Following conditions must be satisfied before instituting an interpleader suit:

i. There must be some debt sum of money or other property movable or immovable in dispute.
ii. There must be two or more persons claiming it against each other.
iii. The person from whom such money or property is being claimed must not be claiming an
interest therein other than the charges and costs.
iv. Such a third person must be ready and willing to pay or deliver it to the rightful claimant.
 v. There must be no suit pending wherein the rights of the rival claimant can be properly
adjudicated.

Conclusion

From the above discussion we have see that interpleader suit means the suit which was
filed by the plaintiff on behalf of defendants because the actual owner of the property or debt dies and
plaintiff who is in the indirect possession of the property can file a suit on behalf of defendants, who
claim for the ownership of the property. This is considered as an important part of the Code of Civil
Procedure.

16. POWERS OF APPELLATE COURT

i. Power to decide a case finally- Section 107(l)(a) and Rule 24 of Order 41 enable the appellate
court to dispose of a case finally. Where the proof on record is adequate to allow the appellate
court to pronounce a decision, the case may eventually be decided, notwithstanding that the
judgment of the court of appellate court occurred solely on some other basis than that on which
the appellate court continues.
ii. Power of remand- Section 107(1)(b), Rule 23 of Order 41 of the Code states that if the trial court
has decided the case on a preliminary point without documenting findings on other issues and if
the court of appeal reverses the decree thus passed, it may send the case back to the court of
appellate court to decide other issues and reach a decision. An appellate court can order the
lower court to reconsider and retry the case by passing an order of remand
iii. Power to frame issues and refer them for trial- Section 107 (1)(c), Rules 25 and 26 provides that
where the lower court has omitted to frame any issue or to try any issue or to determine any
question of fact, which is crucial to the just decision of the case upon merits, the appellate court
can frame issues and refer them for trial to the lower court and direct that court to take the
additional evidence required.
iv. Power to take additional evidence- Section 107(1)(d), Rules 27 29, as a general rule, an appeal
shall be decided by the court of appellate court on the facts adduced by the parties before the
court of appeal and no further evidence shall be accepted for the purposes of the appeal. The
fundamental principle of admission of additional evidence is that it should be sufficient for the
person demanding admission of additional evidence to prove that such additional evidence may
not have been admitted as evidence at first instance with the best efforts. There should be an
opportunity for the party affected by the admission of additional facts to contradict such
additional evidence. The additional evidence must be relevant for the determination of the
issue.
v. Power to modify decree- Rule 33 of Order 41 allows an appellate court to make whatever
decision it deems fit, not only between the appellant and the respondent but also between two
respondents. It empowers an appellate court not only to give or refuse relief to the appellant by
allowing or dismissing the appeal, but also to give any other such relief to the respondents as
the case may require.
17. CROSS OBJECTIONS
Order 41 Rule 22 is a special provision which allows the respondent who has not appealed
against the decree to object to the decree by filing cross-objections in the appeal filed by the other
party. However, the respondent's filing of cross- objections is discretionary and voluntary. The provision
is permissive and encouraging and not mandatory or peremptory. An appeal by a respondent in which
the plaintiff has little involvement should not be viewed as a cross-objection. The challenge is brought by
the appellant against the respondent, and the cross-objection by the respondent against the appellant
would be an objection. Cross appeals can be filed on the following grounds by the respondent-

i. if he could have filed an appeal against any part of the decree

ii. if he is aggrieved by a finding in the judgment, even though the decree is in his favor because of
some other finding.

The terms of Order 41 Rule 22 allow for the right to file cross-appeals only where an appeal is
filed and even when the appeal is accepted by the court of appeal and a notice is issued to the
respondent. Only after an appeal is accepted and the court orders notice to be given to the respondent
should the process of filing cross-objections begin.

Therefore, no cross objections can be brought where no appeal has been filed by the
appellant or an appeal has been filed but has not been accepted.