UNIT 2

1. INSTITUTION OF SUITS ------- LECTURE 1

2. STAGES OF A CIVIL SUIT -------- L1
 Filing of plaint and interlocutory application
 Filing of written statement
 Frame of issues
 Recording of evidence
 Argument
 Judgement and decree
3. Parties to the suit – joinder, misjoinder and non-joinder (Order 1, Rule 1 to 13) ---L1
4. Frame of suit – inclusion of whole claim and relinquishment of part of claim, joinder of
COA, objections to misjoinder (Order II, Rules 1 to 7) -----L2
5. Pleadings – fundamental and other rules of pleadings (Order 6, Rules 1 to 18) ----- L2
6. Plaint and its content, return and rejection of plaint (Order 7, Rules 1 to 17) -----L2
7. Issue of summons and service of summons (order 5, Rules 1 to 30)
8. Apperanace of parties and consequences of non- appearance (Order 9, rule 1 to 14) ---L1
9. Rules governing written statements, counterclaim and set-off (order 8, Rules 1 to 10) ---L1

10. Issues – kinds of issues-

 Issue of law
 Issue of fact and
 Mixed issues of fact and law,
Framing of issues, amendment, striking out of issues(order 14, rule 1 to 7) 1. ---L1
11. Hearing of the suit and examination of witness (Order 18, Rule 1 to 19) ----L2

1. GENERAL
Sections 26 to 35-B and orders 1 to 20 of the (First) Schedule deal with the procedure relating to suits.
Order 1,2 and 4 provide for parties to suit, frame of suit and institution of suit.

2. SUIT: MEANING
o The term “suit” has not been defined in the code.
o According to the dictionary meaning, suit refers to any proceedings by one person or persons
against another or others in a court of law wherein the plaintiff pursues the remedy which the
law affords him for the redress of any inquiry or the enforcement of a right, whether at law or
in equity.
Ordinarily, a suit is a civil proceedings instituted by the presentation of a plaint.

3. ESSENTIALS OF SUIT
There are four essentials of a suit:
 Opposing parties
 Subject-matter in dispute
 Cause of action and
  Relief.

4. PARTIES TO SUIT: ORDER 1

Order 1 deals with the parties to a suit, the first essential of a suit. It also contains provisions for
addition, deletion and substitution of parties, joinder, misjoinder and non-joinder of parties and
objection as to misjoinder and non-joinder.
o KARNATAKA CIVIL RULES OF PRACTICE : - 6. DESCRIPTION OF
PARTIES.-
1. The contending and opposing parties shall be described as
 Plaintiff and Defendant respectively in Suits
 Appellant and Respondent in Appeals,
 Decree-holder and Judgment-debtor in Execution Cases and
 Petitioner and Opponent in all other proceedings.
(2) The proceedings before appellate and revisional courts, the ranks held by the respective
parties in the lower courts, shall be indicated within brackets in the cause title.

o JOINDER OF PARTIES

The question of joinder of parties may arise either as regards the plaintiffs or as regards the
defendants. An act may be done by a single individual and may adversely affect another
individual. In that case, the question of joinder of parties does not arise.
Thus, when A assaults B, B can sue A for tort, as it individually affects him. But on the other
hand, the joinder of plaintiff or defendant arises only when an act is done by two or more persons,
or it affects two or more persons.
Therefore, if A assaults B and C, or A and B assault C, the question of joinder of plaintiffs or
defendant arise.

o JOINDER OF PLAINTIFFS: RULE 1

Rule 1 provides for joinder of plaintiffs. It states that all persons may be joined in one suit as
plaintiffs if the following two conditions are

i. the right to relief alleged to exist in each plaintiff arises out of the same act or transaction; and
ii. the case is of such a character that, if such persons brought separate suits, any common
questions of law or fact would arise.
 The word "and" between clauses (a) and (b) makes it clear that both the above conditions should
be fulfilled."
Iswar Bhai v. Harihar Behera, The primary object of Rule 1 is to avoid multiplicity of
proceedings and unnecessary expenses.

o ILLUSTRATIONS.
a) A enters into an agreement jointly with B and C to sell 100 tins of oil. A
thereafter refuses to deliver the goods. Here both, B and C, have each of them a
right to recover damages from A. The said right arises out of the same
transaction, namely, the breach of agreement; and common question of law and
fact would also arise. B and C, therefore, may file a suit jointly as plaintiffs
against A for damages.
b) A agrees to sell and deliver 100 tins of oil to B at a particular rate on 1 January
1991. He also agrees to sell and deliver a like quantity of oil on the same day at
the same price to C. B and C cannot join as plaintiffs in one suit against A as the
transactions are different.

o JOINDER OF DEFENDANTS: RULE 3

It states that all persons may be joined in one suit as defendants if the following two conditions
are satisfied:
i. the right to relief alleged to exist against them arises out of the same act or transaction; and
ii. the case is of such a character that, if separate suits were brought against such persons, any
common question of law or fact would arise."

o NO JOINDER IF DELAY IS CAUSED – RULE 2 & 3A

R.2: Power of Court to order separate trials- In case the Court finds that any joinder of
plaintiffs may embarrass or delay the trial in the suit, the court may allow the plaintiffs to elect
either to continue or seek separate trials or may itself suo motu order separate trials or may even
make such order as may be expedient.
R.3A: Power to order separate trials where joinder of defendants may embarrass or delay
trial- The Court may order separate trials or make such other order as may be expedient in the
interest of justice where it appears to it that the joinder of defendants may embarrass or delay the
trail of the suit.

o NECESSARY AND PROPER PARTIES

There is an essential distinction between a necessary party and a proper party to a suit.
 A necessary party is one whose presence is indispensable to the constitution of the suit,
against whom the relief is sought and without whom no effective order can be passed.
 A proper party is one in whose absence an effective order can be passed, but whose presence
is necessary for a complete and final decision on the question involved in the proceeding.
 In other words, in absence of a necessary party no decree can be passed, while in absence of a
proper party a decree can be passed it relates to the parties before the court. His presence,
however, enables the court to adjudicate more "effectually and completely",
Two rests have been laid down for determining the question whether particular party is a
necessary party to a proceeding."
 There must be a right to some relief against such party in respect of the matter involved in the
proceeding in question; and
 It should not be possible to pass an effective decree in absence of such a party,
Examples
 in a suit for partition, all sharers are necessary parties.
 in an action against selection and appointment by an authority, candidates who are selected
and appointed are directly affected and, therefore, they are necessary parties.
 a subtenant is only a proper party in a suit for possession by the landlord against his tenant.
 grandsons are proper parties to a suit for partition by sons against their father.
 a local authority for whose benefit land is sought to be acquired by the Government is a
proper party in land acquisition proceedings.

o NON-JOINDER OR MISJOINDER OF PARTIES: RULE 9

Non-joinder - Where a person, who is a necessary or proper party to a suit has not been joined as
a party to the suit, it is a case of non-joinder.
Misjoinder of parties - Conversely, if two or more persons are joined as plaintiffs or defendants
in one suit and they are neither necessary nor proper parties, it is a case of misjoinder of parties.

 T.N. PUBLIC SERVICE COMMISSION V. A.B. NATARAJAN, The general rule is that
a suit cannot be dismissed only on the ground of non-joinder or misjoinder of parties.
 Nor a decree passed by a competent court on merits will be set aside on the ground of
misdescription of the defendant."
 However, this rule does not apply in case of non-joinder of a necessary party.

Jagan nath Vs Jaswant singh If the person who is likely to be affected by the decree is not
joined as a party in the suit or appeal, the suit or appeal is liable to be dismissed on that ground
alone.
 B. Prabhakar Rao v. State of A.P, where all the affected persons had not been joined as parties
to the petition, and some of them only were joined, the Supreme Court took the view that the
interests of the persons who were not joined as parties were identical with those persons who were
before the court and were sufficiently and well represented and, therefore, the petition was not
liable to be dismissed on that ground.

o OBJECTIONS AS TO NON-JOINDER OR MISJOINDER OF PARTIES: RULE

13
 All objections on the ground of non-joinder or misjoinder of parties must be taken at the
earliest opportunity, otherwise they will be deemed to have been waived.
 Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman
Educational Trust, But if the objection as to non-joinder of necessary party has been taken
by the defendant at the earliest stage and the plaintiff fails to join or declines to add the
necessary party, he cannot subsequently be allowed in appeal to rectify the error by applying
for amendment.

o STRIKING OUT, ADDING OR SUBSTITUTING PARTIES : RULE 10

(i) Adding or substituting parties

If after the filing of the suit, the plaintiff discovers that he cannot get the relief he seeks without
joining some other person also as a plaintiff or where it is found that some other person and not the
original plaintiff is entitled to the relief, as prayed for, an application for addition or substitution of the
plaintiff can be made. Such an application, however, should be filed within a reasonable period.
The object underlying this provision is to save honest plaintiffs, believing bona fide in the
maintainability of their claim being non-suited on a mere technical ground. The provision, therefore,
must be liberally constructed so as to advance the cause of justice. Hence, the power to implead a
party can also be exercised by the court Suo moto.

Robin Ramjibhai Patel v. Ananadibai Rama, to bring a case within this sub- rule, the following
three conditions must be satisfied:
1. The suit must filed in the name of the wrong person as plaintiff.
2. Such mistake must be bona fide; and
3. The substitution or addition of the platiff is necessary for the determination of the real matter
in dispute.
Illustrations:
1. C, the agent of A, under a bona fide mistake files a suit against B in his own name. The court can
substitute the name of principal A for that of the
original plaintiff C.
2. A joint Hindu family firm files a suit under a bona fide mistake in the name of the firm although the
provisions of Order 30 relating to filing of suits by firms do not apply to such a firm. The court may
allow substitution of the names of the members of the Hindu joint family firm as plaintiffs.
3. A sues B for possession of a house. B contends that since A has transferred the house to C, he has
no title to sue and the suit is, therefore, not maintainable.
A maintains his right contending that no transfer was made, but the contention is found to be false.
Thereupon, A applies for adding C as a co-plaintiff. The application requires to be rejected since the
mistake was not found to be bona fide.
Such amendment may be allowed by the court at any stage of the suit or even at the appellate stage
and upon such terms and conditions as it thinks just. No person can be added as a plaintiff without his
consent. - 10(3)
(ii) Striking out or adding parties
Sub-rule (2) of Rule 10 empowers the court to add any person as a party to the suit on either of the
two grounds:
(i) Such person ought to have been joined as a plaintiff or a defendant, and is not so joined; or
(ii) Without his presence, the question involved in the suit cannot be completely decided.
The purpose of this provision is to bring before the court, at the same time, all the persons interested
in the dispute so that the dispute may be finally determined at the same time in the presence of all the
parties without the delay, inconvenience and expense of several actions and trials and inconclusive
adjudications. This provision, thus, confers wide discretion on the court to meet with every case of
defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on
record. Addition of parties is, however, a judicial discretion which is required to be exercised
judiciously.
(iii) Power and duty of court
The provisions of Rule 10(2) of Order I confer very wide powers on the court regarding joining of
parties. Such powers have to be exercised on sound judicial principles keeping in mind all the facts
and circumstances of the case.
Gurmit Singh Bhatia v. Kiran kant Robinson, two considerations especially will have to be kept in
mind before exercising powers, namely,
(i) the plaintiff is a dominus litis. He is the best judge of his interest. It is, therefore, for him to choose
his opponent from whom he claims relief and, normally, the court should not compel him to fight
against a person whom he does not want to fight and from whom he claims no relief; and
(ii) if the court is satisfied that the presence of a particular person is necessary to effectively and
completely adjudicate all the disputes between the parties, irrespective of the wishes of the plaintiff,
the court may exercise the power and join a person as party to the suit.

The power may be exercised by the court at any stage of proceedings either upon an application of the
parties or even Suo moto and on such terms and conditions as may appear to the court to be just.
(iv) TEST
In Razia Begum v. Anwar Begum, A sought a declaration that she was the legally-wedded wife of B.
One C claimed to be another married wife of P=B and sought to be added as a party defendant. The
prayer was granted since the declaration sought for concerned the status of marriage and legitimacy of
children and would affect the parties for generations to come. Thus, the test is not whether the
plaintiff agrees to adding a party as a defendant or not, but whether the relief claimed by the plaintiff
will directly affect the intervener in the enjoyment of his rights.
The court also has the authority to strike out any party improperly joined either as plaintiff or as a
defendant in a suit.
o TRANSPOSITION OF PARTIES

In transposition, a person who is already on record as a plaintiff or a defendant seeks his transposition
from one capacity to another capacity; i.e. from plaintiff to defendant or vice versa.
For adding or substituting plaintiffs following conditions must be fulfilled:
i. The suit has been filed in the name of wrong plaintiff
ii. Such mistake must be bona fide;
iii. The substitution or addition of the plaintiff is necessary for the determination of the
real matter in dispute.

Since primary object of Order 1 Rule 10 of the Code is to avoid multiplicity of proceedings, there is
no reason why the doctrine of addition or striking out parties does not apply to transferring the parties
from one side to the other side. A court can, therefore, order transposition of parties in an appropriate
case. This can be done either on an application by a party or Suo motu.
No such transportation, however, can be allowed it alters the character of the suit or causes prejudice
to the opposite party.
o REPRESENTATIVE SUIT :- RULE 8

Rule 8 deals with the representative suit which enables filing of a single suit on behalf of other
persons interested in subject-matter of the suit. Thus, it is a rule of convenience enacted to avoid
multiplicity of proceedings. General rule of litigation is that all person interested in a suit must be
joined as parties to it. Order I Rule 8 provides an exception to this rule.

 When there are numerous person either as plaintiff or defendant having the same interest in
one suit, then one of them may file or defend in a suit with the permission of the court, it is
called Representative Suit.
 In another words, A suit by one or more persons under the rule on behalf of themselves and
others having the same interest in the suit is called a Representative Suit.
 OBJECT:
T.N HOUSING BOARD V. T.N. GANAPATHY, The object underlying this provision is really to
facilitate the decision of questions in which a large number of persons are interested without recourse
to the ordinary procedure.
Order 1 Rule 8 of the code has been framed is to save time and expense, avoid multiplicity of suits
and prevent harassment of parties.
  ENABLING PROVISION:
It is merely an enabling provision. It does not compel an individual to represent body of persons.
 INTERPRETATION
The rule as to representative suits is based on convenience and is intended to avoid multiplicity of
proceedings and also to save unnecessary expenses. Hence it should be interpreted and applied
liberally.
 CONDITIONS
For the rule to apply, the following conditions must be fulfilled:
1. The parties must be numerous.
The word numerous is by no means a term of art. It implied a group of persons such as would make it
convenient to implead all of them individually. The word is not synonymous with ˜numberless' or
˜innumerable'. The number must be definite for the Court to recognize as non-impleaded parties to
the suit. Thus under this provision the body of persons represented must be sufficiently definite.
2. There must be the same interest or community of interest in all such persons.
The second requirement for the maintainability of the representative suit is that the person on whose
behalf the suit is instituted must have the same interest. The interest must be common to them all or
they must have a common grievance which they seek to get redressed. Community of interest is,
therefore, essential and it is a condition precedent for bringing a representative suit.
The explanation added by the amendment act of 1976 clarifies that such persons need not have the
same cause of action. Again, it is not necessary that the interest must arise from the “same
transaction”. Even if the persons who are represented in a representative suit have separate cause of
action or there are separate transactions, a suit under Order 1 Rule 8 can be filed if all of them have
the same interest.
In T.N HOUSING BOARD V. T.N. GANAPATHY, residential buildings were allotted by the housing
board to the applicants who belonged to the low – income group. After settlement of price, excess
demand by filing a suit in a representative capacity. It was contended that such a suit in a
representative capacity was not maintainable as separate demand notice were issued against each of
the allottees, giving rise to separate COA. Negative the contention the SC held that all of them had
the same interest and, therefore, the suit was maintainable.
2. The necessary permission of the court must have been obtained.
If this essential condition is not fulfilled, the suit does not become a representative one. The court has
direction to grant permission to a person to sue in a representative capacity. It cannot, however, ipso
facto grant such permission merely on the basis of averments made in the plaint. In deciding whether
such leave is to be granted, the principal consideration that should weigh with the court is whether it is
satisfied that there is sufficient community of interest as between the plaintiffs or the defendants, as
the case may be, to justify the adoption of the procedure laid down in Rule 8.
The proper course to obtain permission before the suit is filed. But it may be granted after filing of the
suit or even at an appellate stage by allowing amendment of plaint. Where a plaintiff intends to sue on
behalf of others, it is the plaintiff who should apply for leave. Where numerous defendants having the
same interest are sued and it is sought to be defended by one of them on behalf of others, such
application should be made by that defendant.
No particular form has been prescribed by the Code for grant of permission. Such permission may be
express or implied and may be gathered from the proceedings of the court in which the suit is filed.
Thus, where the court orders publication of notice in a newspaper, the court must be deemed to have
granted the permission. Under sub-rule (I)(6), where there are numerous persons having the same
interest in the suit, the court may direct that one or more of such persons may sue or be sued or may
defend such suit on behalf of, or for the benefit of, all persons so interested.
4. Notice to all the persons interested in the suit must be given at the expense of plaintiff.
As stated above, where a person sues or is sued, or defends a suit on behalf of himself and others, any
decree that may be passed in the suit is binding upon them all, unless such decree has been obtained
by fraud or collusion. It is, therefore absolutely necessary that the notice of the suit should be given to
all the parties who would be bound by the decree, for otherwise a person might be prejudicially
affected by such decree even though he was not on record and not aware of the suit. The issue of
notice of the institution of the suit is, thus, peremptory, and if it is not given, the decree will bind only
those parties who are on record.
It is the duty of the court to take care that proper notice is issued which Would provide sufficient
information to the persons interested in the suit so ne they might apply for becoming parties to the
suit. It is also the duty of the court to see that the notice is published in a newspaper which the persons
interested are likely to read. This is particularly necessary in view of the fact that the decision in a
representative suit becomes res judicata not only against the persons who are on record but also
against them who are not on record and yet covered under this rule.

 ADDITION OR SUBSTITUTION OF PARTIES

Sub-rule (3) of Rule 8 provides that any person on whose behalf a suit is filed or defended under sub-
rule (1) may apply to the court to be added as a party to the suit. Such person must show that the
conduct of the suit is not in proper hands and that his interests will be seriously affected to his
prejudice if he is not joined as a party to the suit. The reason is that considerable delay may be caused
in filing a fresh suit by such party and the cost of litigation will also be increased. Such application
must be made without delay. Such person can only be added as a co-plaintiff or a co-defendant but
cannot be substituted for the original parties. But sub-rule (5) as added by the Amendment Act of
1976 now provides that where any person suing in a representative capacity or defending a
representative suit does not proceed with due diligence in the suit or defense, the court may substitute
in his place any other person having the same interest in the suit.
In an appropriate case, the court may also permit transposition of parties.

 WITHDRAWAL OR COMPROMISE
Under sub-rule (4), no part of the claim in a representative suit can be abandoned under sub-rule (1),
and no such suit can be withdrawn under sub-rule (3) of Rule 1 of Order 23 and no agreement,
compromise or satisfaction can be recorded in any such suit under Order 23 Rule 3, unless the court
has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-
rule (2) either by personal service or by public advertisement. Similarly, Order 23 Rule 3-B as
inserted by the Amendment Act of 1976 provides that no agreement or compromise can be entered in
a representative suit without the leave of the court.
 CONDUCT OF SUIT: RULE 8-A
Rule 8-A empowers the court to permit a person or body of persons interested in any question of law
in issue in any suit to present his or its opinion before the court and to take part in the proceedings in
the suit. This power is discretionary and hence a person or body of persons even though interested or
concerned with a question of law arising in the suit cannot claim to present his or its opinion or to take
part in the proceedings of the suit as of right. Under Rule i1, the court may give the conduct of a suit
to such person as it deems fit, while Rule 12 provides that the plaintiffs or the defendants may
authorize one or more of them to appear, plead or act for them.
 DECREE
A decree passed in a representative suit is binding on all persons on whose behalf, or for whose
benefit, such suit is instituted or defended." It also operates as res judicata.'

5.ORDER II – FRAME OF SUIT

o INCLUSION OF WHOLE CLAIM: RULE 1 & 2

Every suit must include the whole of plaintiff’s claim in respect of the COA, and, as far as practicable,
all matters in dispute between the parties be disposed of finally. The intention of legislation
underlying the provisions appears to be that as far as possible all matters in dispute between the
parties relating to the same cause of action should be disposed of in the same suit so as to prevent
further litigation.
o "AS FAR AS PRACTICABLE"

The words "as far as practicable" indicate that in each case the court will have to see whether it was
practicable for the plaintiff so to frame his suit as to include a cause of action which he had omitted or
intentionally relinquished. Thus, this provision is more in the nature of a general policy statement than
a mandatory requirement.
o SPLITTING OF CLAIM

Order 2 Rule 2101 lays down that every suit must include the whole of the claim to which the plaintiff
is entitled in respect of the cause of action and where the plaintiff omits to sue for or intentionally
relinquishes any portion of his claim, he shall not afterwards be allowed to sue in respect of the
portion so omitted or relinquished.
o OBJECT
The provision of Order 2 Rule 2 is based on the cardinal principle of law that a defendant should not
be vexed twice for the same cause. The principle contained in this provision is designed to counteract
two evils, namely,
(i) splitting up of claims; and (ii) splitting up of remedies.
Virgo Industries (Eng). (P) Ltd. v. Venturetech Solutions (P) Ltd., stated that Order 2 Rule 2 is
based on “cardinal principal that the defendant should not be vexed twice for the same cause”

o INTERPRETATION

The provisions of Order 2 Rule 2 are penal in nature and divertive in effect. They should, therefore, be
constructed strictly. A plea of Order 2 Rule 2 is highly technical and deprives a party to a legitimate
right otherwise available to him. Hence, it should not be lightly upheld. Such plea should be raised at
the earliest opportunity.

o ILLUSTRATION

(1) A lets a house to B at a yearly rent of Rs 1200. The rent for the whole of the years 1905, 1906 and
1907 is due and unpaid. A sues B in 1908 only for the rent due for the year 1906. A shall not
afterwards sue B for the rent due for 1905 or 1907.
(2) A advances loan of Rs 2200 to B. To bring the suit within the jurisdiction of court X, A sues B for
Rs 2000 only. A cannot afterwards sue for Rs 200.
(3) A sues for Rs 200. Against this claim, B claims set-off for Rs 200 being part of Rs 1200 due to B
by A but omits to counterclaim the balance of Rs 1000. B cannot afterwards sue A for Rs 1000.
(4) A sues B for possession alleging that B is tenant in arrears. The suit is dismissed on the ground
that B is mortgagee in possession. A subsequent suit by A against B for redemption is not barred.
(5) A sues B for rent. The suit is dismissed on finding that A was not the landlord but A and B were
tenants-in-common. A subsequent suit by A against B for partition of property is not barred.
o CONDITIONS

Coffee Board v. Ramesh Exports (P) Ltd., To make the rule applicable, the following three
conditions must be satisfied, namely:
i. The second suit must be in respect of the same cause of action as that on which the
previous suit was based.
In order to apply the provisions of Order 2 Rule 2 to bar the second suit, it must be proved that the
second suit must have been based on the same cause of action on which the pervious suit was
based. The COA should not merely be similar, but it must be the same.
As mulla states, “Rule 2 of order 2 does not require that when several causes of action from one
transaction, the plaintiff should sue for all of them in one suit. What the rule lays down is that
 there is one entire COA, the plaintiff cannot split the COA into parts so as to bring separate suits
in respect of those parts.
Like res judicata, a plea of bar of order 2 rule 2 must be established by the defendant by placing
before the court, the plaint of the pervious suit and other evidence for proving the identity of
cause of action in both the suis. The court cannot take cognizance of such plea suo motu.
ii. In respect of that cause of action, the plaintiff was entitled to more than one relief; and
The rule applies only where the plaintiff is entitled to more than one relief in respect of the same
cause of action and he omits to sue for all such relief. Thus, where the plaintiff files a suit for
damages for breach of contract and omits to claim a portion of damages for which he is entitled, a
sub-sequent suit for such portion is barred.
Similarly, a suit be a coparcener challenging mortgage of certain coparcenary properties is a bar
to a subsequent suit in respect of other properties included in the same mortgage transaction. Such
relinquishments of claim need not be express. It may be implied in the conduct of the plaintiff.
This rule, however, does not apply when the right to relief in respect of which a subsequent suit is
brought, did not exist at the time of the previous suit, or in the earlier suit the petitioner could not
have claimed the relief which he sought in the subsequent suit.

iii. Being thus entitled to more than one relief, the plaintiff without leave of the court
omitted to sue for the relief for which the second suit has been filed.
This rule only applies when the leave of the court is not obtained. Therefore, if the omission has been
with the permission of the court, the subsequent suit for the same relief in respect of the same COA is
not barred. Such leave need not be express and it may be inferred from the circumstances of the case.
It can be obtained at any stage.
The power to grant leave is discretionary, and, normally, exercise of such discretion will not be
interfered with by a superior court. The question whether leave should be granted or not will depend
upon the facts and circumstances of each case and no rule of universal application can be laid down.

o TEST

State of Maharashtra v. National Constructions. Co, The test for finding out whether a subsequent
suit be barred because of the previous suit is whether the claim in the second suit is in fact, founded
on a cause of action which was the foundation of the former suit. If the answer is in the affirmative,
the bar of Order 2 Rule 2 would apply. But if it is in the negative, it would not be attracted.
o PRINCIPLES

In Mohd. Khalil v. Mahbub Ali, after considering several cases on the point, the Privy Council laid
down the following principles governing bar to a subsequent suit under this rule:
(1) The correct test in cases falling under Order 2 Rule 2, is "whether the claim in the new suit is in
fact founded upon a cause of action distinct from that which was the foundation of the former suit".
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed
in order to support his right to the judgment.
(3) If the evidence to support the two claims is different, then the causes of action are also different.
(4) The causes of action in the two suits may be considered to be the same if in substance they are
identical.
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant
nor does it depend upon the character of the relief prayed for by the plaintiff. It refers... to the media
upon which the plaintiff asks the Court to arrive at a conclusion in his favour.

o APPLICABILITY TO OTHER PROCEEDINGS

The provisions of Order 2 Rule 2 apply only to suits and not to appeals, execution proceedings,
arbitration proceedings or to a petition under Article 226 of the Constitution of India.
o JOINDER OF CLAIMS: RULES 4-5

Rules 4 and 5 provide for joinder of claims. Rule 4 lays down that in a suit for the recovery of
immovable property, a plaintiff is not entitled, without the leave of the court, to join any claim,
except:
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof.
(b) claims for damages for breach of any contract under which the property or any part thereof is held;
and
(c) claims in which the relief sought is based on the same cause of action.
Rule 5 deals with suits by or against three classes of persons, viz., executitors, administrators and
heirs. It provides that no claim by or against the aforesaid persons in their representative capacity shall
be joined with claims by or against them personally in the same suit, except:
(a) where the personal claims arise with reference to the estate, he represents; or
(b) where he was entitled to or liable for, those claims jointly with the deceased whom he represents.
The primary object of these provisions is to prevent a representative from intermingling the assets of
his testator with his own estates.
o JOINDER OF CAUSES OF ACTION: RULES 3, 6

Rule 3 deals with joinder of causes of action. This rule enables joinder of several causes of action in
one suit in certain circumstances subject to the provisions of the Code. (Rules 4 and 5 of Order 2 and
Rules I and 3 of Order I.) It contemplates the following four types of situations:
(i) One plaintiff, one defendant and several causes of action
Where there is only one plaintiff and one defendant, the plaintiff is at liberty to unite in the same
suit several causes of action. But if it appears to the court that the joinder of causes of action may
embarrass or delay the trial the is otherwise inconvenient, the court may order separate trials’
(ii) Joinder of plaintiffs and causes of action
Where there are two or more plaintiffs and several causes of action, the plaintiffs may unite such
causes of action in one suit against the same defendant if they all are jointly interested. But this
provision must be read with Order i Rule i. Thus, where there are two or more plaintiffs and two or
more causes of action, they may be joined in one suit only if the following two conditions are
fulfilled:
(1) the causes of action must have arisen from the same act or transaction; and
(2) common questions of law or fact must have been involved.
Therefore, where the plaintiffs are not jointly interested in several causes of action which have been
joined in one suit and the right to relief does not arise from the same act or transaction or where
common questions of law or fact are not involved, the suit will be bad for misjoinder of plaintiffs and
causes of action.
(iii) Joinder of defendants and causes of action
Where there is one plaintiff and two or more defendants and several causes of action, the plaintiff may
unite in the same suit several causes of action against those defendants, if the defendants are jointly
interested in the causes of action. But this provision also must be read subject to Order I Rule 3, and
therefore, two or more defendants can be joined in one suit, provided the following two conditions are
fulfilled:
(I) the relief claimed must have been based on the same act or transaction; and
(2) common questions of law or fact must have been involved.
Where, in one suit, two or more defendants have been joined against whom the causes of action are
separate and therefore they are not jointly liable to the plaintiff in respect of those causes of action and
the right to relief claimed is not based on the same act or transaction or where common questions of
fact or law are not involved, the suit will be bad for misjoinder of defendants and causes of action,
technically called as multifariousness.
(iv) Joinder of plaintiffs, defendants and causes of action
Where there are two or more plaintiffs, two or more defendants and several causes of action, the
plaintiffs may unite the causes of action against the defendants in the same suit only when all the
plaintiffs are jointly interested in the causes of action and the defendants are also jointly interested in
the causes of action. If the plaintiffs are not jointly interested in the causes of action, the suit will be
bad for misjoinder of plaintiffs and causes of action. On the other hand, if the defendants are not
jointly interested in the causes of action, the suit will be bad for multifariousness. And if neither the
plaintiffs nor the defendants are jointly interested in the causes of action, the suit will be bad for
double misjoinder, i.e. misjoinder of plaintiffs and causes of action and misjoinder of defendants and
causes of action.
(v) Objections as to misjoinder of causes of action: Rule 7
All objections on the ground of misjoinder of causes of action must be taken at the earliest
opportunity, otherwise they will be deemed to have been waived. 134 Similarly, no decree or order
under Section 47 of the Code can be reversed or substantially varied in appeal, inter alia, on account
of any misjoinder or non-joinder of causes of action not affecting the merits of the case or the
jurisdiction of the court.

INSTITUTION OF SUIT : ORDER 4 & SECTION 26

Section 26 : Institution of suits :
1. Every suit must be instituted by the presentation of a plaint or in such other manner as may be
prescribed by the rules made by HC.
2. In every plaint, facts shall be proved by affidavit. ~ this was added in the amendment, 1999
because some HC mandates the requirement of affidavit while some not , therefore to bring
the uniformity this was added.
The expression “plaint” has not been defined in the code, but it means “a private memorial tendered
to a court in which a person sets forth his cause of action; the exhibition of an action in writing.
Order IV of the CPC outlines the commencement of a suit by plaint.
It states that: (Rule 1)
1. Every suit must be instituted by the presentation of a plaint to the Court or any official
designated on its behalf.
2. Every plaint must comply with the rules outlined in Orders VI and VII.
3. A plaint is not considered to be duly instituted unless it complies with the criteria stated under
sub-rules (1) and (2).
Generally, the presentation of a plaint must be on working day and during the office hours. However,
there is no rule that such presentation must be made either at a particular place or at a particular time.
After the presentation, the plaint will be scrutinised by the stamp reporter. If there are defects, the
plaintiff or his advocate will remove them.
Rule 2: Thereafter, the particulars of a suit will be entered by the court in a book kept for the said
purpose, called the register of civil suits.

PLEADINGS (ORDER 6)
Rule 1: Pleading is defined as plaint or written statement.
According to Mogha’s Law of pleading, “Pleadings are statements in writing drawn up and filed by
each party to a case, stating what his contentions will be at the trial and giving all such details as his
opponent needs to know in order to prepare his case in answer.”

OBJECT
 The whole object of pleadings is to bring parties to definite issues and to diminish expense
and delay and to prevent surprise at the hearing.
  A party is entitled to know the case of his opponent so that he can meet it.
 In other words, the sole object of pleadings is to ascertain the real disputes between the
parties, to narrow down the area of conflict and to see where the two sides differ, to preclude
one party from taking the other by surprise and to prevent miscarriage of justice.

BASIC RULES OF PLEADINGS: RULE 2

From Sub-rule (1) of Rule 2 analysis, the following general principles emerge:
i. Pleadings should state facts and not law.
ii. The facts stated should be material facts.
iii. Pleadings should not state the evidence; and
iv. The facts should be stated in a concise form.

(1) FACTS AND NOT LAW

Manoj v. Shanti: the first principle of pleadings is that they should state only facts and not law. It
is the duty of the parties to state only the facts on which they rely upon for their claims. It is for
the court to apply the laws to the facts pleaded.
(2) THE FACTS STATED SHOULD BE MATERIAL FACTS
The second principle of pleadings is that they should contain a statement of material facts and
material facts only.
The expression "material facts" has not been defined in the code, means all facts upon which the
plaintiff's cause of action or the defendant's defense depends, or, in other words, all those facts
which must be proved in order to establish the plaintiff's right to relief claimed in the plaint or the
defendant's defense in the written statement.
In Udhav Singh v. Madhav Rao, the SC has defined the expression “material facts” in the
following words:
“All the primary facts which must be proved at the trial by a party to establish the existence of a
COA or his defense are material facts.”

(3) Facts and not evidence:

The facts are of two types :
(A) Facta Probanda: the facts required to be proved (material facts); and
(B) Facta Probantia: the facts by means of which they are to be proved.
The pleadings should only contain Facta Probanda.
In other words, the pleadings should contain a statement of material facts on which the party relies but
not the evidence by which those facts are to be proved.
(4) CONCISE FORM
The pleadings should be drafted with sufficient brevity and precision. Defendant must know what
case he has to meet. He cannot be kept guessing what the plaintiff wants to convey by a vague
pleading. Therefore, pleadings must be precise, specific and unambiguous.
 The words "in a concise form" are definitely suggestive of the fact that brevity should be
adhered to while drafting pleadings.
 Of course, brevity should not be at the cost of excluding necessary facts.
Rule 2 (2): every pleading shall be divided into paragraphs, numbers consecutively and every
allegation should be contained in separate paragraphs.
Rule 2 (3): Dates, sums and numbers should be expressed in figures as well as in words.

OTHER RULES OF PLEADING:

(Rule 5 has been omitted )
(1) Rule 4-Particulars to be given where necessary: -
Wherever misrepresentation, fraud, breach of trust, willful default or undue influence are pleaded in
the pleadings, particulars with dates and items should be stated.
What particulars are to be set out in the pleadings must depend upon the facts of each case. As a
general rule, so much certainty and particularity should be insisted upon as is reasonable, having
regard to the circumstances and the nature of the acts.
(2) Rule 6: Condition Precedent
The performance of a condition precedent need not be pleaded since is implied in the pleadings. Non-
performance of a condition precedent, however, must be specifically and expressly pleaded.
(3) Rule 7: Departure-
No subsequent pleading shall contain any new ground of claim or contain any inconsistent fact to
the previous pleading except by way of amendment under Rule 17.
(4) Rule 8: Denial of Contract-
It provides that a bare denial of a contract alleged by the opposite party shall be construed. Denial
of facts of contract and the legality or sufficiency in law of such a contract must be specifically
denied.

(5) Rule 9: Effect of document to be stated- Wherever the contents of any document are
material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible,
without setting out the whole or any part thereof, unless the precise words of the document or
any part thereof are material.

(6) Rule 10: Malice, Knowledge, etc- Wherever it is material to allege malice, fraudulent
intention, knowledge or other condition of the mind of any person, it shall be sufficient to
allege the same as a fact without setting out the circumstances from which the same is to be
inferred.
 (7) Rule 11: Notice- Wherever it is material to allege notice to any person of any fact, matter or
thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms
of such notice, or the circumstances from which such notice is to be inferred are material.

(8) Rule 12 : Implied contract or relation : Implied contracts or relations between persons may
be alleged a fact, and the series of letters, conversations and the circumstances from which
they are to be inferred should be pleaded generally

(9) Rule 13- Presumption of Law : Facts which the law presumes in favour of a party or as to
which the burden of proof lies upon the other side need not be pleaded.
 Ex : - Section 118 & 119 of NI Act – holder of cheque presumed to be owner of the
cheque.
 Hindu joint family property

Rule 15: Verification of pleadings- Every pleading when writing and signed as required, must
be verified at the foot of the plaint or written statement i.e. after the signature of the party, and if
there are more than one party then it must be verified by any one of the parties.
 Furthermore, the rules provide for, the manner in which the verification shall be written i.e.,
 It shall specify by paragraph and numbers of the pleadings, of which the party knew
and of which it has reason to believe on the information received, and
 It must also state the date and the place on which the signature is placed for
verification.
 Another important requirement of the pleadings is that it must be duly supported by an
affidavit of the person verifying.
Consequences of not following these Rules of Pleading :- Rule 16,17 & 18
Rule 16: Striking out pleadings- The power provided under this rule may be exercised by the
court either suo motu or on the application of any of the parties. The striking out here means that
the paragraphs will not read as the part of the pleadings and thus no evidence shall be given to its
proof. This striking out may be ordered at any stage of the proceedings.
The court will allow striking out or amending certain matters in any pleading which are as follows
i. Which may be unnecessary, scandalous, frivolous or vexatious, or
ii. Which may tend to prejudice, embarrass or delay the fair trial or
iii. otherwise an abuse of the process of the court.
This is also called a compulsory amendment. However, it is an exception to normal practice that a
court cannot direct parties as to how they should prepare their pleadings. The power to strike out
pleadings is extraordinary in nature and must be exercised by the court sparingly and with
extreme care, caution and circumspection
 (10) Rule 14: Pleading to be signed-
This rule talks about the requirement of signature so as to take responsibility of the facts being
stated by the litigant in his pleading. Pleading shall be signed by the party (litigant) or by a duly
authorized agent, who is authorized by the party to sign as such. The pleading shall also be signed
by the pleader of the party, if engaged.
A party to suit should supply his address. He should also supply the address of the opposite party.
Every pleading should be verified on an affidavit by the party or by one of the parties or by a
person acquainted with the facts of the case.

AMENDMENT IN PLAINT: RULE 17

According to this rule, the court may allow any party to a suit to amend his pleading as may be just
for the purpose of determining the real question in dispute between the parties. This power is
discretionary which must be exercised in a sound manner.
Before allowing an amendment a court should consider the following four points:
1. Interest of justice
2. Determination of real question in controversy between the parties. 3. Necessary to prevent
multiplicity of suits.
4. Party exercise due diligence
Above consideration has to be taken into account while deciding the question of amendment of
pleading.
 There was an amendment in C.P.C. which has been enforced in 2002 - On this point, Proviso
to Rule 17 itself mention that the court should not allow amendment after the commencement
of trial unless it comes to the conclusion that despite due diligence, the matter could not have
been raised by the party before such commencement

Rule 18: Failure to amend after order- Where a pleader after obtaining leave to amend does not
amend his pleading within the time specified or within 14 days (when no time is specified), he shall
not be permitted after such time to amend his pleading unless a time is extended by the court, in
regards to the facts and circumstances of the case.
 PLAINT – ORDER 7
The term Plaint has not been defined in the Code. However, it can be defined as a statement of claim
by presentation of which the suit is instituted. It is pleading of the plaintiff. Order VII lays down rules
relating to plaint. Rules 1-8 of Order VII deals with particular required in a plaint.
The Karnataka High Court made an attempt at defining what a plaint is in the case of Girija Bai v.
Thakur Das (1967):
“A plaint can be said to be a statement of claim, a document, by presentation of which the suit is
instituted. Its object is to state the grounds upon which the assistance of the court is sought by the
plaintiff. It is the pleading of the plaintiff.”

Rule 1 of Order VII contents that a plaint must contain certain particulars required to be stated in the
plaint:
1. Name of the court (For e.g. in the Matter of Civil Judge Junior Division) in which the matter
is to be tried [Rule 1(a)],
2. The name, description and place of residence of plaintiff [Rule 1(b)],
3. The name, description and place of residence of defendant [Rule 1(c)],
4. The fact of any of the party being a minor [Rule 1(d)],
5. The cause of action (Pleadings) [Rule 1(e)],
6. Facts showing that the court has jurisdiction [Rule 1(f)],
7. Relief claimed by the Plaintiff, simply or in alternative [Rule 1(g), 7 & 8],
8. Where the Plaintiff has allowed set-off or relinquished a portion of his claim, the amount so
relinquished [Rule 1(h)],
9. The valuation of the suit [Rule 1(i)],
The plaintiff must state in the plaint the valuation of the subject-matter of the suit for the purposes of
pecuniary jurisdiction of the court and court fees.
 for example, in a suit for declaration or in a suit for injunction or for possession of
immovable property. In such a case, the plaintiff should distinctly state the valuation
of the suit for the purpose of jurisdiction of the court and for the purpose of court
fees.
RULE 2 – In money suit :- In a money suits, as a general rule, where the plaintiff seeks for recovery
of specific amount, the precise amount must be stated in the plaint. For e.g. the amount claimed must
not be any uncertain numbers i.e. approx Rs. 10,000, etc. The exact amount must be stated.
However, when the plaintiff sues for mesne profits or for unsettled accounts or for movables where
the value cannot be estimated by due diligence, the approximate amount may be claimed in the plaint
Rule 3 : Where the subject matter of the suit is immovable property : Where the subject matter is
an immovable property, a description of the property sufficient to identify the same .
Rule 4 :- When plaintiff sues as representative:- If the suit is filed in representative capacity, the
fact showing that the plaintiff has an actual existing interest in the subject matter and he has taken
steps that may be necessary to enable him to file such a suit.
Rule 6 - Ground of exemption from limitation law:
where the suit is barred by limitation, it is necessary for the plaintiff to show the ground of exemption
in the plaint. The court may grant exemption on such grounds if it thinks fit. But the proviso
empowers the court to permit the plaintiff to rely on a new ground for exemption if it is not
inconsistent with the grounds mentioned in the plaint.
Rule 7-8 : Relief
Every plaint must state specifically the relief claimed by the plaintiff either simply or in the
alternative. Where the relief is founded on separate and distinct grounds, they should be so stated.
Where the plaintiff is entitled to more than one relief in respect of the same cause of action, it is open
to him to claim all or any of such reliefs. But if he omits, except with the leave of the court, to sue for
any particular relief, he will not afterwards be allowed to sue for the relief so omitted.
The general relief usually prayed for by the plaintiff:
“The plaintiff prays for such further or other relief as the nature of the case may required”
Relief not founded on pleadings cannot be granted. No decision can be based on grounds outside the
pleadings of the parties.
The suit cannot be dismissed merely on the ground that the plaintiff has claimed a larger relief than he
entitled to. But the lesser relief to which the plaintiff is entitled will be granted in his favor.
Rule 9: Procedure on admitting Plaint- This rule provides that in the event of the court issuing
summons to the defendant, the plaintiff will be directed to present as many copies of the plaint as
there are defendants, in the court, within 7 days of the order issuing summons. The plaintiff must also
furnish the fees for issuing such summons.

Return and rejection of plaint

Return of plaint: Rules 10, 10-A, 10-B
Rule 10 : Where at any stage of the suit, the court finds that it has no jurisdiction, either territorial or
pecuniary or with regard to the subject-matter of the suit, it will return the plaint to be presented to the
proper court in which the suit ought to have been filed. However, the court cannot dismiss the suit.
Rule 10-A prescribes the procedure to be followed by a court before the plaint is ordered to be
returned to be presented to the proper court.
The judge returning the plaint should make endorsements on it regarding
(i)the date of presentation;
(ii) the date of return;
(iii) the name of the party presenting it; and
(iv) reasons for returning it.

When the plaint is filed in the proper court, after getting it back from the wrong court, it cannot be
said to be a continuation of the suit and the suit must be deemed to commence when a plaint is filed in
the proper court.
 Order 43 Rule 1(a)The order returning the plaint is appealable.
 Section 14 of the Limitation Act, 1963 The endorsement under Sub-Rule 2 shall be
subject to limitation i.e. if plaintiff prosecutes bona fide in a wrong court that period
shall be excluded from limitation.

Rule 10 A: Power of court to fix a date of appearance in the court where plaint is to be filed
after its return- in the event, the defendant appears, the court is under the duty to intimate to the
plaintiff its decision before returning the plaint. And when the plaintiff if so intimated,
 he may apply to the court to ask for the proper forum in which the suit must be filed and also
to fix the date of appearance in that court and to give notice of such date to the defendant.
Although the plaintiff is allowed to appeal against the order of return, but in case the application as
mentioned above is filed such appeal is barred

Rule 10 B: Power of appellate court to transfer of suit to the proper Court- In the event of filing
an appeal against the order of return, if the Appellate Court confirms such order, it may direct the
plaintiff to file the plaint in the proper court, subject to limitation and may also fix a date of
appearance before such court (the court to which it is sent need not issue fresh summons unless
required).

In ONGC v. Modern Construction Co. the Supreme Court held that when a plaint is filed in the
proper court after getting returned from the wrong court, it cannot be said to be said to be a
continuation of the suit. The suit must deemed to commence when the plaint is filed in the proper
court.
Rejection of plaint: Rule 11, 12 & 13 :
This provision is mandatory in nature. If any of the grounds specified in clauses (a) to (e) are made
out, court is bound to reject the plaint. The plaint will be rejected in the following cases:
a. Non-disclosure of cause of action- If the plaint does not disclose any cause of
action, the court will reject it. The power to reject a plaint on this ground should be
exercised only if the court comes to the conclusion that even if the allegations set
out in the plaint are proved, the plaintiff would not be entitled to relief.
Reddy v. Reddy; in order to reject the plaint on this ground, the court must look at the plaint and at
nothing else.
b. Undervaluation of the relief claimed and failure to correct after direction.
c. Insufficiency of stamp paper and if it is not corrected within given time.
d. Suit is barred by any law including law of limitation. But if question of limitation is
connected with the merits of the case, it will be decided with other issues (Arjan
Singh v. UOI)
e. It is not filed in duplicate. It means that the plaint has to be filed in duplicate
otherwise it will be rejected. Even Order IV Rule 1 clearly indicates that for
institution of suits the plaint has to be filed in duplicate.
f. Plaintiff fails to present requisite copies of the plaint with summons as required by
Rule 9. It means the plaintiff is under obligation to present copies of plaint for each
defendants and requisite fees for summons within 7 days.
It must be noted here that under Rule 11(b) and (c) there is no automatic rejection of plaint. If the
court comes to a conclusion that relief claim is undervalued or plaint is insufficiently stamped, then
the court is required to give sufficient time to the plaintiff to correct the valuation and deposit the
requisite court fee. If upon giving sufficient time the plaintiff fails to correct the same, then the power
under these rules is to be exercised.

This rejection can be done at any stage before the conclusion of trial, and the ground on which it
should be rejected must be considered by the simple reading of the plaint only and not on the basis of
allegations made by the defendant in his written statement and not also on the basis of application for
rejection.

g. Other grounds
The grounds mentioned in Order 7 Rule 11 are not exhaustive. On other relevant grounds also a plaint
can be rejected. Example, if the plaint is signed by a person not authorized by the plaintiff and the
defect is not cured within the time granted by the court, the plaint can be rejected.

Rule 12: Procedure on rejecting Plaint- Where a Plaint is rejected the Judge shall record an order to
that effect with the reasons for such order.

Rule 13: Where rejection of plaint does not preclude presentation of fresh plaint- The rule
provides for the consequence or a remedy for the order of rejection, wherein the plaintiff is allowed to
institute a fresh plaint in respect of the same cause of action in the proper court subject to limitation.
Therefore, although being a decree, Res-Judicata does not apply on such orders. Thus the rejection of
plaint being a deemed decree, the plaintiff has two remedies in case of rejection of plaint which are as
follows
a) It is a decree and thus appealable under Order 41.
b) Plaintiff may bring a fresh suit in respect of same cause of action

SUMMONS : SECTIONS 27-29; ORDER 5

(1) Meaning:
When the plaintiff files a suit, the defendant has to be informed that the suit has been filed against
him, and that he is required to appear in the court to defend it. The intimation which is sent to the
defendant by the court is technically known as “summons”.
Though the summons has not been defined in the Code, according to the dictionary meaning
(Concise Oxford English Dictionary) “A summons is a document issued from the office of a court
of justice, calling upon the person to whom it is directed to attend before a judge or officer for a
certain purpose.”
(2) Object of issuing summons
When a suit is filed by the plaintiff against the defendant and a relief is claimed, the defendant must
be given an opportunity as to what he has to say against the prayer made by the plaintiff. This is in
consonance with the principal of natural justice as no one can be condemned unheard (audi alteram
partem). if the defendant is not served with the summons, a decree passed against him will not bind
him.
(3) Summons to Defendants :
Section 27 of CPC stipulates that where a suit has been duly instituted by filing a plaint, the first duty
of the court is to issue summons calling on the defendant to appear and answer the claim and such
summons may be served in a manner prescribed in the rules mentioned in Order V and on such day
not beyond 30 days from the date of the institution of the suit.
Section 28: Service of summons where defendant resides in another state : If the summons to be
served in an another state must be sent for service through the court of that state and it will so be
served according to the rules in force in the state in which it is sent to. The court to which it is sent
must serve it as it is issued by that court and return it to the court issuing it along with the proceedings
therein.
Section 29: Service of foreign summonses
Section 29 provides for the situation when any of the following courts:
1. Civil or Revenue court to which Civil Procedure Code does not apply.
2. Civil or Revenue court established by the authority of Central Government outside India.
3. Civil or Revenue court outside India to which this section would apply. has issued certain summons
and is intended to be served in the territory to which Civil Procedure Code applies. It provides that it
may be sent to the courts to which Civil Procedure Code applies and may be severed by them as if it
was issued by such courts.

(4) Essentials of summons

The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are:
• Every summon must be signed by the judge or any other officer whom he appoints to do so on his
behalf.
• It must be sealed properly.
• The court will not issue any summons to the defendant if he has appeared before the court at the
time of the institution of the plaint and admits the plaintiff’s claim.
• After summons are issued, the defendant is required to file written statements within 30 days. If he
fails to do so, he has to provide reasons, and if the court is satisfied, it can extend the time period to
file written statements to not more than 90 days.
• Another essential element of summons is that every summon must be accompanied by a copy of the
plaint.
• The format of a summons must be according to the prescribed form given in Appendix B of the First
Schedule under the code.
(5) Contents of summons :
Order V Rule 5: Summons to be either to settle issues or for final disposal
The summons may be issued for settlement of issues or for final disposal of the suit and the court
shall at the time of issuing the summons specify for what purpose summons are being issued and
it must contain a direction accordingly. The Court of Small Causes shall issue summons for final
disposal only.
Order V Rule 6: Fixing day for appearance of defendant: The following factors should be
looked into while fixing the date for appearance
1. The current business day of the court,
 2. The place of residence of the defendant,
3. Time necessary for service of summons,
4. Sufficient time to enable defendant to prepare his defence.
Order V Rule 7: Summons to order defendant to produce documents relied on by him : It shall
be ordered to the defendant in the summons to produce all the document or copies thereof
specified in Order VIII Rule 1 A to produce on which he intends to rely in his support.
Rule 8: On issue of summons for final disposal, defendant to be directed to produce his
witnesses: In the summons for final disposal of the suit the defendant shall be directed to
produce all the witness upon whose evidence he relies for his defence at the day fixed for
appearance.
(6) Appearance in person: Rule 3
The Court shall order the defendant and the plaintiff to appear on the same day as specified, in
person, if it is so required.
Therefore, a defendant to whom a summons has been issued, may appear: (Rule 1(2))
(1) In person; or
(2) By a pleader duly instructed and able to answer all material questions relating to the suit, or
(3) By a pleader accompanied by some person able to answer all such questions

(7) Exemption from appearance in person : Section 132-133; Rule 4

Rule 4: No party shall be ordered to appear in person unless:
1. He resides within local limits of courts’ jurisdiction.
2. Where he resides within 50 miles from the court-house, or
3. Beyond such jurisdiction but within 200 miles from the court and where 5/6th distance can be
covered by Railways or steamers or other public conveyance.
There are certain provisions where there is an exemption from personal appearance, such as
Section 132, in case of certain women no appearing in public like Pardanashin lady,
Section 133, in case of other person who are entitled to exemption under the code like President,
Vice-President, etc.
(8) Mode of service of summons: Rule 9 -30
The service of summons is of primary importance as it is a fundamental rule of the law of procedure
that a party must have a fair and reasonable notice of the legal proceedings initiated against him so
that he can defend himself. The problem of service of summons is one of the major causes of delay in
the progress of the suit. It is common knowledge that defendants will try to avoid service of
summons.
Salem Advocate Bar Association v. Union of India; The law commission considered the problem
and it was felt that certain amendments were necessary in that direction and a defendant can be served
by a plaintiff or through modern means of communication. Accordingly, amendments were made in
the code in 1976, 1999 and 2002.
The code prescribes five principal modes of serving a summon to a defendant:
 1. Service of court - Rule 9
2. Service by plaintiff (Dasti Summons) - Rule 9A
3. Personal or Direct Service -Rule 10-16, 18
4. Substituted Service Rule 17, 19-20
o (i) without the order of the court

o (ii) with the order of the court.

5. Service by Post

o INTRODUCTION:

Rule 10: Mode of Service: Service of the summons shall be made by delivering or tendering a copy
thereof signed by the judge or such officer as he appoints in this behalf, and sealed with the seal of the
court.
Rule 11: Service on several defendants- Where there are two or more defendants, service shall be
made on each of them.
o MODES OF SERVICES:

1. Rule 9: Delivery of summons by Court-

This rule provides for the manner in which the summons must be served, that if the defendant or his
agent is a resident within the jurisdiction of the court, such summons shall be served either by officer
of the court known as process server or bailiff or by such courier services as are approved by the
court.
Furthermore, Sub-Rule 3 provides for the manner in which the summons may be served.
The service of summons may be made by delivering or transmitting a copy to the defendant or his
duly authorized agent by:
(a) Registered Post acknowledgement due, or
(b) Speed Post or courier service approved by the High Court or the District
Court, or
(c) Any other means of transmission like fax message or electronic mail service, etc.
o The service of summons under this sub-rule 3 shall be made on the expenses of the plaintiff.

Sub-rule(4) : If the defendant is residing out of the jurisdiction of the court sending summons then
such summons shall be served according to sub-rule 3 except by registered post acknowledgement
due and provisions of rule 21 does not apply.
Sub-rule (5)Where the summons if returned back to the court with the endorsement that the defendant
or his agent refused to accept the summons when tendered or transmitted to him, the court shall
declare that the summons had been duly served on the defendant.
Salem Advocate Bar Association v. UOI; where summons is properly addressed, prepaid and duly
sent by registered post acknowledgement due (RPAD) there will be a presumption of valid service of
summons even in the absence of an acknowledgement slip.
2. Rule 9A: Summons given to the plaintiff for service
on the application of the plaintiff’s is allowed to served the summons personally to the defendant.
Such summons must be sealed and signed. They are in addition to service of summons by the court.
The plaintiff must take the acknowledgement from the defendant and shall endorse a return by stating
the time and manner of service of original summons. Such summons may be served by the court by
re-issue and in a normal manner. These summon are known as Dasti Summons.
Salem Advocate Bar Association v. Union of India; though there can be no objection in giving an
opportunity to the plaintiff to serve summons on the defendant, there should be sufficient safeguards
to avoid false report of service of summons. High Courts should make appropriate rules or issue
practice directions to ensure that the provisions are properly implemented and there is no abuse of
process of law.
3. Personal or Direct Service [Rule 10-16, 18]
Rule 12: Service to be on defendant in person when practicable, or on his agent- The summons must
be served to the defendant in person or to his authorised agent.

Rule 13: Service on agent by whom defendant carries on business- When the suit relates to any
business or work and is against a person not resident within the jurisdiction of the court issuing
summons, such summons may be served upon any manager or agent who personally carries on such
business or work and is within the local limits of the court.

Rule 14: Service on agent in charge in suits for immovable property- In a suit to obtain a relief
with respect to an immovable property or for suit for compensation over such property, it would be
sufficient that the summons is served upon the agent who is in charge of the property.

Rule 15: Where service may be on an adult member of defendant’s family- In cases where the
summons cannot be served due to absence of defendant for a reasonable time and the agent also is not
available to receive summons, then such service may be made to an adult member residing with the
defendant. It can be served both on male or female but only on adult member of the family.
Explanation :-In such cases a servant is not considered the family member of the defendant. Also
when adult female members of defendants refused to receive suit summons, a conclusion can be
drawn that summons are served on defendants

Rule 16: Person served to sign acknowledgement- The serving officer shall require the signature of
the person accepting the summons to an acknowledgement of the service endorsed on the original
summons.

Rule 18: Endorsement of time and manner of service- The serving officer in all cases where the
summons has been served under Rule 16, shall endorse or annex on the original a return stating the
time and manner of service and name or address of the person identifying the person or witnessing the
delivery.

4. Substituted Service [Rule 17, 19-20]

Substituted service means the service of summons by a mode which is substituted for the ordinary
mode of service of summons. For ordering substituted service as per Order 5 Rule 20, CPC it must be
shown that the respondent/defendant is keeping out of the way for the purpose of avoiding service or
that for any other reason, the summons cannot be served in the ordinary way.
Basant singh v. Roman Catholic Mission; Since, it is not regular mode of service, it should not
normally be allowed and can be effected only as a last resort.
There are two modes of substituted service of summons:
 (a) Service without the order of the court
 (b) Service with the order of the court
Rule 17 Service without the order of the court- when substituted service can be made on the
defendant without the order of the court:
i. Refusal of acknowledgement- Where the defendant or his agent refuses to sign the
acknowledgement.
ii. Absence of defendant- Where the serving officer, after due and reasonable diligence, cannot
find the defendant who is absent from his residence at the time of service of summons and
cannot be found within a reasonable time and
iii. there is no authorized agent nor any other person on whom such service can be made.
When one of the above two circumstance exist, the service of summons can be made by affixing a
copy on the outer door or some other conspicuous part of the house in which the defendant ordinarily
resides or carries on business or personally works for gain.
Procedure after such service: After affixing such copy of summons as stated above, the serving
officer shall then return the original to the court issuing summons with a report endorsed thereon
stating
(a) The fact about affixing the copy;
(b) The circumstances under which he did so;
(c) The name and address of the person, if any, by whom the house was identified and in whose
presence the copy was affixed.
Laxmibai v. Keshrimal jain; Since in this mode the service is effected without an order of the court,
therefore, the declaration by the court about the due service is essential.

Rule 19- Examination of Serving officer :- further provides that if the court is satisfied, either on
affidavit or examination on oath of serving officer, that the summon is duly served, it may either
declare the summons has been duly served or may make such inquiry as it thinks fit.
If the provisions of Rule 19 are not complied with, service of summons cannot be said to be in
accordance with law.
The Court, may make such further enquiry in the matter as it thinks fit; and shall either declare that
the summons has been duly served or order such service as it thinks fit .
Rule 20 - Service with the order of the court- If the court is satisfied that there is reason to believe
that defendant avoids service or for any other reasons, the summons cannot be served in the ordinary
way, in such case, the service may be affected in the following manner:
i. By affixing a copy of summons in some conspicuous place in the court house, and in the
house in which the defendant is known to have last resided, carried on business or personally
worked for gain, or (ii) In such other manner as it thinks fit. (Such service is an effective
service, even if the defendant is not the subscriber of the newspaper or is not reading it.)
ii. The court may order service of summon by advertisement in a daily newspaper circulating in
the locality in which the defendant is last known to have resided or carried on business or
personally worked for gain
iii. Rule 20(2)- Effect of substituted service of summons- provides that the substituted service
is as effective as personal service, and such defendant shall be deemed to be duly served in
accordance with law.
iv. The court shall fix a time for the appearance of defendant and give him reasonable
opportunity to appear before court.

Before more than a century ago, in Cohen v. Nursing Dass, it was stated,
"It is true that you may go to a man's house and not find him, but that is not attempting to find him.
You should go to his house, make enquiries and, if necessary, follow him. You should make enquiries
to find out when he is likely to be at home and go to the house at a time when he can be found. Before
service like this can be effected it must be shown that proper efforts have been made to find out when
and where the defendant is likely to be found —not as seems to be done in this country, to go to his
house in a perfunctory way, and because he has not been found there, to affix a copy of the summons
on the outer door of his house."
5. SERVICE BY POST:
It has been repealed by the CPC (AMENDMENT) ACT, 1976.

OBJECTION AS TO SERVICE OF SUMMONS:

An objection should be raised at the earliest possible opportunity. If it is not taken at that stage, it is
deemed to have been waived. ~ Bheru Lal v. Shanti Lal

SERVICE OF SUMMONS IN SPECIAL CASES – RULES 21-30

(a) Rule 21: Where the defendant resides within the jurisdiction of another court or in another
State, the summons may be sent to the court where he resides. Such court will serve summons
on the defendant.
 (b) Rule 22: Where the summons is to be served within the Presidency Towns of Bombay,
Madras and Calcutta, it may be sent to the Court of Small Causes within whose jurisdiction it
is to be served.

(c) Rule 25: Where the defendant resides out of India and has no authorised agent in India to
accept service, the summons should be addressed to the defendant at the place where he is
residing and sent to him by post, or courier service, or fax message, or Electronic Mail
Service, or by any other appropriate means, if there is postal communication between such
place and the place where the court is situate.

(d) Rule 26: Where the defendant resides in a foreign country, the service of summons may be
effected through the political agent there or a court established there with authority to serve
summons.

(e) Rule 27: Where the defendant is a public officer (not belonging to the Indian Military, Naval
or Air Forces), or is a servant of the railway company or local authority, the summons may be
served through the head of the department in which the defendant is employed.

(f) Rule 28: Where the defendant is a soldier, sailor or airman, the court shall send the summons
for service to his commanding officer.

(g) Rule 24: Where the defendant is in prison, the service of summons is to be made on the
officer in charge of the prison.

(h) Rule 29: Duty of person to whom summons is delivered or sent for service- (1) Where a
summons is delivered or sent to any person for service under rule 24, rule 27 or rule 28, such
person shall be bound to serve it if possible, and to return it under his signature, with the
written acknowledgement of the defendant, and such signature shall be deemed to be
evidence of service.
(2) Where from any cause service is impossible, the summons shall be returned to the court with
a full statement of such cause and of the steps taken to procure service, and such statement shall
be deemed to be evidence of non-service.
(i) Rule 30: Substitution of letter for summons- This rule provides situation when serving of
summons does not seem to be proper, and in such situation the court sends a letter to the
defendant, who is entitled to this form of calling due to the rank of such defendant requiring
such mark of consideration or respect. However, this does not mean that all the particulars
required in summons will not be mentioned in such letter as it will be treated in all respects,
as a summons. This letter may be sent by post or by special messenger.

FIRST HEARING – FRAMING OF ISSUES

o INTRODUCTION

The plaint and written statement constitute “pleadings”. The dispute between the parties thus becomes
clear. The court thereafter in the light of pleadings of the parties will frame “issues”.
Order 14 deals with issues. It is the thirst important stage after presentation of the plaint by the
plaintiff and filling of written statement by the defendant. It is known as the “First hearing”.
 o FIRST HEARING: MEANING

The expression "first hearing" has not been defined in the Code.
The first hearing of a suit means the day on which the court goes into the pleadings of the parties in
order to understand their contentions. As stated above, Stage I - the machinery of a court is set in
motion by the presentation of a plaint, which is the first stage in the suit. The second stage is the filing
of the written statement by the defendant.
Badami v. Bhali; The third important stage in the suit is the framing and settlement of issues and the
day on which such issues are framed is the first hearing of the suit."
In cases in which no issues need be framed, e.g., a small cause suit, the first hearing would be the on
which the trial starts.
Thus, the day on which the court applies its mind to the case either for framing issues or for taking
evidence can be said to be "the first day of hearing of the suit”.

o ISSUE: MEANING

According to the concise oxford English dictionary (2002) meaning, "issue" means a point in
question; an important subject of debate, disagreement, discussion, argument or litigation.
Howell v. Dering, In other words, an issue is that which, if decided in favour of the plaintiff, will in
itself give a right to relief; and if decided in favour of the defendant, will in itself be a defence.

o FRAMING OF ISSUES: ORDER 14 RULE 1

(1) Issues arise when a material proposition of fact or law is affirmed by one party and denied by the
other.
(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to
show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject-
matter of a distinct issue.

o OBJECT OF FRAMING ISSUES

The primary object of framing issues in a suit is to ascertain the controversy in the suit and rival
contentions between the parties.
In J.K Iron and Steel Co. Ltd v. Mazdoor Union; their lordship of the SC said, “Now the only point
of requiring pleadings and issues is to ascertain the real dispute between the parties, to narrow the
arear of conflict and to see just where the two sides differ.”

o KINDS OF ISSUES: RULES 1-2

Rule 1(4) enacts that issues are of two kinds:
(a) issues of fact; and
(b) issues of law. Issue,
however, may be mixed issues of fact and law.
Rule 2(1) provides that where issues both of law and fact arise in the same suit, notwithstanding that a
case may be disposed of on a preliminary issue, the court should pronounce judgment on all issues.
But if the court is of the opinion that the case or any part thereof may be disposed of on an issue of
law only, it may try that issue first, if that issue relates to
(i) the jurisdiction of the court; or
(ii) (ii) a bar to the suit created by any law for the time being in force.
For that purpose, the court may, if it thinks fit, postpone the settlement of the other issues until the
issues of law have been decided.

o PRELIMINARY ISSUE

An issue relating to
(i) jurisdiction of the court, or
(ii) bar to the suit created by law may be treated as preliminary issue.

Prior to the Amendment Act of 1976, Rule 2 of Order 14 required the court to decide issues of law as
preliminary issues. The position, however, has been changed after Amendment Act of 1976. Amended
Rule 2 of Order 14 now confers discretion on the court to try issues as to jurisdiction of the court or
bar to the suit as preliminary issues

o IMPORTANCE OF ISSUES

Issues are the backbone of a suit. The framing of issues, therefore, has a very important bearing on the
trial and decision of a case.
 Firstly, it is the issues framed and not the pleadings that guide the parties in the matter of
leading evidence. ~ J.K Iron case
 Secondly, the court cannot refuse to decide the point on which an issue has been framed and
evidence led by the parties, even if the point involved is not mentioned in the pleadings. ~
Victoria’s Girls School v. Board of Education
 Thirdly, the court should not frame an issue which does not arise in the pleadings.
  Fourthly, the issues must be confined to the material questions of fact or law (facta
probanda) and not on subordinate facts or evidence by which material questions of fact or law
are proved or disproved (facta probantia),
 Fifthly, issues settled by the court constitute crystallisation of the conflict or distillation of the
dispute between the parties to the lis and are in the nature of disputed questions of fact and/or
of law."
 Sixthly, one issue should cover only one fact or law in dispute between the parties.
 Finally, if the case goes in appeal, it must be dealt with by the appellate court on the issues
settled for trial.

o POWER AND DUTIES OF COURT

i. The duty to frame proper issues rests primarily on the court.
ii. The judge must apply his mind with due care, caution and diligence and understand the facts
of the case before framing issues.
iii. But the pleaders appearing for both the parties also should assist the court in framing the
issues.
iv. Issues must be specific and clear.

o RULE 3 MATERIALS FOR FRAMING ISSUES

The court may frame issues from all or any of the following materials:
a) allegations made on oath by the parties, or by any persons present on their behalf, or
statements made by the pleaders appearing for the parties;
b) allegations made in the pleadings or in answers to interrogatories; and
c) documents produced by the parties,

o RULE 4. COURT MAY EXAMINE WITNESSES OR DOCUMENTS BEFORE

FRAMING ISSUES.—
Where the Court is of opinion that the issues cannot be correctly framed without the examination of
some person not before the Court or without the inspection of some document not, produced in the
suit, [may adjourn the framing of issues to a day not later than seven days] and may (subject to any
law for the time being in force) compel the attendance of any person or the production of any
document by the person in whose possession or power it is by summons or other process.

o AMENDMENT OF ISSUES

Rule 5. Power to amend and strike out, issues.—(1) The Court may at any time before passing a
decree amend the issues or frame additional issues on such terms as it thinks fit, and all such
amendments or additional issues as may be necessary for determining the matters in controversy
between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to
be wrongly framed or introduced.

o OMISSION TO FRAME ISSUE:

Even though it is the duty of the court to frame proper issues, mere omission to frame an issue is not
necessarily fatal to the suit. Omission to frame an issue is an irregularity which may be or may not be
a material one. If such an omission affects the disposal of the suit on merits, the case must be
remanded to the trial court for a fresh trial.

Where the parties went to trail with full knowledge that a particular point was at issue, they have not
been prejudiced and substantial justice has been done, absence of an issue is not fatal to the case so as
to vitiate the proceedings.

o RULE 6 & 7 : Agreed Issues of Fact or Law and Court's Judgment Based on Agreement

If the parties to a suit agree on a question of fact or law to be decided between them, they may state it
as an issue in writing and agree that based on the court's decision on the issue, certain actions will
follow. These may include payment of a specified sum of money, delivery of disputed property, or
one party performing or refraining from an act. If the court, after inquiry, is satisfied that the
agreement was executed in good faith, that the parties have a substantial interest in the issue, and that
it is appropriate for trial, the court will record, try, and decide the issue as if it had framed it. Based on
the decision, the court will pronounce judgment according to the agreement, and a decree will follow
accordingly.

HEARING OF THE SUIT : ORDER 18

(a) Trial in open court: Section 153-B
Rule 19: As a general rule, the evidence of witnesses shall be taken orally in open court in presence
and under the personal direction and superintendence of the judge.
It is well-settled that, in general, all cases brought before the courts, whether civil, criminal or others,
must be heard in open court. Public trial in open court is undoubtedly essential for the healthy,
objective and fair administration of justice. Trial held subject to public scrutiny and gaze naturally
acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating
confidence of the public in the fairness, objectivity and impartiality of the administration of justice.

(b) Trial in camera

In certain cases, the court may hold a trial in camera when necessary to ensure justice. While public
trials are generally the rule to promote fair administration of justice, this principle is not absolute. If
following the rule of open trials could defeat justice, exceptions are allowed. The primary aim of
courts is the fair administration of justice, and when a conflict arises between public trial and justice
itself, justice must take precedence over publicity.
A.K Roy v. UOI; if there is a conflict between the claims of the administration of justice itself and
those of public trial, public trial must yield to the administration of justice.

(c) Right to begin and reply : Rules 1-3

The right to begin follows from the rules of evidence. Section 101 to 114 of the evidence act, 1872
deals with burden of proof. Section 102 of the act provides that the burden of proof lies on that party
who would fail if no evidence at all were given on either given.
Rule 1: According, as a general rule, the plaintiff has to prove his claim and, therefore, he has right to
begin unless the defendant admits the facts alleged by the plaintiff and contends that either on point of
law (e.g. res judicata, limitation, etc) or on some additional facts alleged by him, the plaintiff is not
entitled to any relief. In that case, the defendant has right to begin.
Rule 2: The party having the right to begin shall state his case and produce his evidence in support of
the issues which he is bound to prove. The other party shall then state his case and produce his
evidence, if any, and may then address the court generally on the whole case. The party beginning
may then reply generally on the whole case.
Rule 3: where there are several issues, the burden of proving some of which lies on the other party,
the party beginning may, at his option, either produce his evidence generally on those issues or
reserve it by way of answer to the evidence produced by the other party.
Rule 3-A: where a party wishes to be examined as a witness, he should first subject himself for
examination before other witnesses are examined.

(d) Recording of evidence: Rules 4-13

i. General
Rule 4: Radical changes have been made by the CPC (Amendment) Act, 2002 in relation to recording
of oral evidence of witnesses. Before the amendment, such evidence could be recorded “in open court
in the presence and under the personal direction and superintendence of the judge”. A lot of time of
the court was consumed in that process which was the main cause of delay in disposal of cases.
Under the new provision, oral evidence can now be recorded by the court commissioner. The court
commissioner may also record remarks respecting demeanour of witnesses. The report of the
commissioner shall be submitted to the court which shall form part of the record of suit.
ii. Appealable cases ~ Rule 5-12, 17,17-A, 18
in appealable cases, the evidence of each witness shall be taken down by the judge in the language of
the court or in English if parties or their pleaders do not object. it should be in the form of narrative
and shall be read over to the witness, interpreted to him and signed by the judge.
The court may (a) for any special reason, take down any particular question and answer, or any
objection to any question
(b)record such remarks as it thinks material respecting the demeanour of any witness;
(c) recall any witness at any stage of the suit who has been examined and put such questions as it
thinks fit;
 (d) permit any party to the suit to produce the evidences which was not within his knowledge or
could not be produced by him despite due diligence; or
(e) make local inspection and make a memorandum of any relevant facts observed at such inspection.
iii. Non-appealable cases ~ Rule 13
In non-appealable cases, the judge shall make or dictate directly on a typewriter or cause to be
mechanically recorded, a memorandum of the substance of the deposition of witnesses.
iv. Examination De Bene esse: Rule 16
Generally, witnesses are examined at the hearing of the suit. Rule 16, however, provides for
examination of a witness before the hearing, when he is about to leave the jurisdiction of the court or
other sufficient cause is shown to the satisfaction of the court why his evidence should be taken
immediately. This is called de bene esse examination and it is permitted to do justice between the
parties.
(vi) Evidence recorded by another judge: Rule 15
where a judge is prevented by death, transfer or other cause from conducting the trial of a suit, his
successor may deal with the evidence recorded by him and proceed with the suit from the stage at
which it was left.
Manikchand Dhariwal v. MSS Food Products, it has been held by the SC that the principle that “one
who hears must decide” applicable to quasi- judicial authorities does not apply to suit. “Hearing of the
suit” as understood under CPC is not confined to oral hearing. It begins when evidence in the suit
begin and is concluded by pronouncement of judgement. CPC contemplates that at various stages of
hearing of the suits, a judge may be transferred or may not be able to conclude the trial. In such a
situation, a successor judge may proceed with the suit from the stage his predecessor left.
(e) Oral Arguments: Rule 2(3-A, 3-D)
A court may permit a party or his pleader to argue a case orally. For such oral arguments, it is open to
the court to fix time limits, as it thinks fit.
(f) Written Statement: Rule 2 (3-A, 3-C)
A court may allow a party or his pleader to submit written arguments in support of his case. Such
written arguments shall form part of the record. A copy of such written arguments should be supplied
to the other side. Normally, no adjournment should be granted for submitting written arguments.

WRITTEN STATEMENT, SET OFF- COUNTER CLAIM

WRITTEN STATEMENT
o Introduction :-
Order 8 deals with rules relating to written statement.
Food Corporation of India v. Yadav Engineer & Contractors, Though the expression “written
statement” has not been defined in CPC , it means the pleadings of the defendant wherein defendant
deals with the facts alleged in the plaint. In it, he also pleads new facts and set up counter claim and
set-off. All the general rules of pleading mentioned in Order 6 apply to written statement.
o Who may file written statement :-

A written statement is filed by the defendant or his duly authorized agent. If there are several
defendants a common written statement can be filed by them. In such a case it must be signed by all
of them. As far as verification is concerned, it can be verified by any one defendant who is aware of
the facts of the case and is in the position to file an affidavit.
However, as per the doctrine of natural justice, every defendant can file a separate written statement
and that will not be binding on other defendants.
Order VIII Rule 1 – written statement: -Time limit for filing written statement:
 It is provides that the defendant shall within 30 days from date of service of summons file a
written statement.
 Proviso to Order VIII Rule 1states that if the defendant fails to file written statement within a
period of 30 days from date of service of summons. He shall be allowed to file the same on
such other day, but shall not be late than 90 days- from the service of summon .
Salem Advocate Bar Association v. Union of India, the court said that there can be discretion of the
court to allow the defendant to file written statement even after expiry of 90 days and there is no
restriction in Order VIII that after expiry of 90 days, further time cannot be extended or granted. In
this case, the Supreme Court held that court is empowered under Order VIII Rule 10 to allow the
defendant to file the written statement even after the expiry of 90 days. Such power can only be used
in exceptional circumstances and routine order cannot be passed.
Rule 1A: Duty of defendant to produce documents upon which relief is claimed or relied upon
by him
Along with the written statement the defendant must produce the documents upon which he relies for
his defense, if the documents are in his power or possession, and must exhibit it in the file by
providing the list of such documents specifically.
If the defendants fails to exhibits such documents along with a written statement, he will be restrained
from producing it as an evidence in his defense unless the court permits.
This rule does not apply to documents produced and handed for:
i. Cross examination of plaintiff’s witnesses, or
ii. Refreshing the memory of witnesses, respectively.
Rule 2: New facts must be specifically pleaded- It is a general rule of pleadings that all material
facts must be pleaded in pleadings. The defendant must state:
a) All matters which show that the suit is not maintainable, or
b) The transaction is either void or voidable in point of law, or
c) The facts showing illegality and other grounds of defence
d) Would raise issues of facts not mentioned in plaint like, fraud, limitation, release, payment,
performance
Udhav singh Vs Madhav Rao Scindia :
If the plea is not taken, it may lead the plaintiff to believe that the defendant has waived his right by
not relying on that point. And the defendant will not be entitled, as of right, to rely on any ground of
defense which he has not taken in his written statement.
Rule governing denial and deemed admissions Rule 3 to 5
Rule 3: Denial to be specific- The defendant must deny the truth of each allegation of fact
specifically of which he does not except damages. Denial generally will not be sufficient. Therefore, it
is not contemplated in the draft of a written statement that the defendant states generally that he denies
all the allegations in the plaint, but does so specifically pointing each and every paragraph.
Rule 4: Evasive denial- where a defendant wants to deny any allegations of fact in the plain, he must
do so clearly, specifically and explicitly and not evasively or generally.
Eg :- Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny
that he received that particular amount, but he must deny that he received that sum or any part thereof,
or else set out how much he received.
Rule 5: Specific denial- Rule 5 (1)provides for situation when the law presumes that an admission
has been made i.e. when any fact in the plaint is deemed to be admitted. The situations are:
(i) Fact not denied specifically or by necessary implication, or
(ii) Fact is stated not to be admitted in the written statement.
In other words, every allegation of fact in the plaint, not denied by the defendant shall be taken to be
admitted by the defendant.
However this Rule does not apply in the case of a person under disability.
Rule 5 (2)Exparte :- This rule further provides that, where the defendant does not file a written
statement, the court may go on to pronounce a judgement based on the facts in the plaint without
obtaining proof of such facts or may call for proof of it. However, the court may in its discretion
require any fact to be proved except by admission reason being you cannot admit or denied at the
same time.
Courts should see that if the plaint contains certain disputed questions of facts which depicts two
different versions the court should require the plaintiff to prove the case. Such a situation would be
covered under ‘court may in its discretion require any such fact to be proved’ used in Order VIII Rule
5(2) or ‘make such order in relation to suit as it thinks fit’ used in Order VIII Rule 10

Modula India v. Kamakshya Singh;

It is not mandatory for the court to pass a decree in favor of the plaintiff merely because a WS has not
been filed.
Section 58 of Indian Evidence Act, 1872. - the fact admitted need not be proved. Among other
things, it provides that if the facts are admitted by any rule of pleadings in force then they are deemed
to be admitted. However, its proviso says that court may in its discretion required the fact admitted to
be proved otherwise.
Thereby if the defendant does not plead, the court shall pronounce judgement on the basis of plaint,
but the court may in its discretion require any fact to be proved. This sub rule not applies to person
under disability.
Sub-Rule 3: Court is exercising his jurisdiction under Proviso to Sub-Rule 1 & Sub-Rule 2 shall have
due regard whether the defendant could have engage a pleader or not.
Sub-Rule 4: Judgement is pronounced under this rule, the decree shall be drawn up in accordance
with judgement and decree shall bear the date on which judgement is pronounced.

SET-OFF [RULE 6]
"Set-off" means a claim set up against another. It is a cross-claim which partly offsets the original
claim.
Jyanti Lal v. Abdul Aziz; It is an “extinction of debts of which two persons are reciprocally debtors to
one another by the credits of which they are reciprocally creditors to one another.”
Where there are mutual debts between the plaintiff and the defendant, one debt may be settled against
the other. It is a plea in defense, available to the defendant. By adjustment, set-off either wipes out or
reduces the plaintiff's claim in a suit for recovery of money.
When can be claimed?
The language of Rule 6(1) is clear and unambiguous. It requires the defendant to claim set-off at the
first hearing of the suit.

Conditions
A defendant may claim a set-off, if the following conditions are satisfied:
(i) The suit must be for the recovery of money.
Ex, A sues B for Rs.20,000. B cannot set-off the claim for damages for breach of contract for specific
performance.
(ii) The sum of money must be ascertained.
Ex, A sues B on a bill of exchange for Rs.500. B holds a judgement against A for Rs.1000. the two
claims being both definite, pecuniary demands may be set-off.
(iii) Such sum must be legally recoverable.
Ex, A sues B for Rs.10,000. B cannot set-off any amount due to him towards salary for performing
illegal or immoral activities of A.
(iv) It must be recoverable by the defendant or by all the defendants, if more than
one;
A sues B and C for ₹1,000. B alone cannot claim set-off for a debt A owes him personally. For a valid
set-off, both B and C must have a joint right to recover the money from A.
 (v) It must be recoverable by the defendant from the plaintiff or from all the
plaintiffs, if more than one;
(vi) It must not exceed the pecuniary jurisdiction of the court in which the suit is
brought;
(vii) Both the parties must fill, in the defendant's claim to set-off, the same
character as they fill in the plaintiff's suit.
If A sues B as a business owner, B cannot claim a set-off for a personal debt that A owes to B
individually. The set-off must relate to the same business relationship in which A sued B.
EFFECTS OF SET-OFF
 When a defendant pleads set-off, he is put in position of plaintiff as regards the amount
claimed by him. So, there are two cross-suits which are tried together and the court
pronounces judgement in respect of both of them. The failure of plaintiff in the suit does not
affect the claim of a set-off by the defendant and decree may be passed in favour of
defendant if he is able to prove his claim.
 A separate suit number, however, is not given in a set-off.
 Where the plaintiff does not appear and his suit is dismissed for default, or he withdraws his
suit or he fails to substantiate his claim at the trail and his suit is dismissed, it does not affect
the claim for a set-off by the defendant and a decree may be passed in favour of the
defendant if he is able to prove his claim.
 Thus, it is clear that this claim has the same effect as of the plaint in a cross-suit to enable the
court to pronounce the judgement in both suits and the rule regarding the written statement
shall apply to a written statement filed by plaintiff in answer to claim of defendant.
 It must be remembered that:
o Rule 6 is not exhaustive and only contains legal set-off.

o Legal set-off can be claimed as a matter of right.

o The court fee is payable on claim of set-off.

o The particulars by way of set-off may be presented after the first hearing only with
the permission of the court.
Types
The law recognizes two types of set-off.
(i) Legal set-off; and
(ii) Equitable set-off.
1. Legal Set-off: (Order VIII Rule 6)- This claim of set-off is based on written statement and the
court pronouncing the judgement in money suit will also pronounce judgement on set-off.
2. Equitable set-off: [Order XX Rule 19(3)]- In contrast to legal set-off, equitable set-off may not be
for ascertained money and may not be even recoverable. For e.g. in a suit by servant against his
master for salary, the latter can claim set-off for the loss sustained by him due to negligence of
servant.
COUNTER CLAIM [ORDER VIII RULE 6A TO 6G]
Rules 6A-6G of Order VIII vide Amendment Act of 1976, which specifically provides for setting of
counter claim. Before the Amendment, no counterclaim or setoff could be claimed except in money
suits. The law commission of India, However, recommended to avoid multiplicity of proceedings,
right to the defendants to raise a plea of set-off in addition to a counterclaim in the same suit. The
provisions relating to counterclaim thus seek to save time of courts, exclude inconvenience to the
parties to the litigation.
It can be defined as a claim made by the defendant against the plaintiff in the suit filed by plaintiff. It
is a cause of action in favor of defendants against the plaintiff. It is independent and separate from the
plaintiff’s claim. The defendant may in addition to set-off, can also be plead by way of a
counterclaim.
Jyanti Lal v. Abdul Aziz; therefore, a counterclaim is substantially a cross-action.
Rule 6A
 Such right or claim must accrue either before or after the filing of the suit but before filing of
written statement or expiry of time limited to file written statement.
 The counter-claim must not exceed the pecuniary jurisdiction of the court. [Order VIII Rule
6A. (1) Proviso]
 The counter- claim shall have the same effect as a cross-suit to enable the court to pronounce
the judgement in both suits [Rule 6A (2)].
 The plaintiff shall file the written statement to answer the claim in counterclaim against him
[Rule 6A (3)].
 The counter-claim is in the nature of cross-suit so it should satisfy all the criteria of a suit and
rules as to the plaint that he shall apply mutatis mutandis to it. 
 The counter claim is treated as separate suit so it is deemed to be instituted on the day on
which it was filed and not on the day when original suit was filed, so it must be filed within
limitation period.
 The Court-fee is payable on counter-claim
[Rule 6B] Counter claim to be stated: - The defendant shall state, specifically in written statement,
any ground upon which he relies in support of his counter-claim.
Rule 6C]- Exclusion of counter claim: [This rule gives the plaintiff a right to apply to the court to
restrain the adjudication of the counter-claim in his suit and that it must be raised in an independent
suit.
[Rule 6D]Effect of discontinuance of suit: - The stay or dismissal of the plaintiff’s suit does not
affect the maintainability of counter claim. The counter claim shall be proceeded with and since it is a
cross suit it will be decided on its own merits.
Rule 6E- Default of plaintiff to reply to counter-claim: Where the Plaintiff fails to reply to a
counter-claim made by defendant, a judgement may be pronounced against such plaintiff in relation to
the counter-claim or any other order also be made.
Rule 6F- Relief to defendant where counter-claim succeeds: Where the counter-claim or set-off is
claimed in any suit and on the hearing it is found that any balance is due to the plaintiff or the
defendant, the court may give judgement in the favour of the party entitled to such balance.
Rule 6G- Rules relating to written statement to apply: The rules relating to written statement by a
defendant shall apply to a written statement filed in answer to a counter-claim.
Rule 7- Defence or set-off founded upon separate grounds: - The distinct grounds of defence or
set-off or counter-claim must be stated separately or distinctly

Section 3(2)(b) of Limitation Act, 1963 stipulates that any claim by way of a set-off or a counter-
claim shall be treated as a separate suit and shall be deemed to have been instituted
1. in the case of a set-off, on the same date as the suit in which the set-off is pleaded.
2. in the case of a counter-claim, the date on which the counter-claim is made in the court

Difference between Set-off & Counter-claim

Set-off Counter-claim

It is a statutory defence to a plaintiff’s action. It is substantially a cross action.

It must be for an ascertained sum of money or, A counter-claim need not be for ascertained sum
if equitable set-off, arise out of same of money neither it should arise out of same
transaction. transaction.

It is a ground of defence to be plaintiff’s action, It is a weapon of offence, a sword enabling a

a shield which would afford an answer to defendant to enforce a claim against the
plaintiff’s claim in whole or in part. plaintiff.

In legal set-off the amount must be recoverable The amount must be recoverable at the date of
at the date of the suit. the written statement or the cause of action must
have arose before the filing of written statement.

Other provisions
Rule 8- New ground of defence: Any new ground arose after the institution of the suit or the
presentation of set-off or counter claim is a written statement, may be raised subsequently by the
parties concerned.
Rule 9- Subsequent Pleading: - The general rule is that after pleading there is no subsequent pleader
but Order VIII Rule 9 says that any submission by the parties to the court, by way of or in the nature
of a pleading after plaint and written statement will be called as a subsequent pleading. It is presented
as follows:
(i) By way of set-off or counter-claim, only with the leave of the court, or
(ii) By way of an additional written statement.
However, the court has the power to allow a written statement or additional written statement any
time from any of the parties and the time period fix for it is 30 days
Rule 10 Procedure when party fails to present written statement called for by court: Where the
party fails to file written statement within the period fixed by the court under Rule 1 and Rule 9, the
court shall pronounce judgement against him or make such order as it thinks fit and a decree shall be
drawn accordingly.
In Salem Advocate Bar Association v. Union of India, it was held that the provisions of rule 10 are
discretionary and not mandatory.