CPC NOTES

Module 1- Introduction and Concepts

●​ How to institute a case

●​ File a plaint to initiate a suit.
●​ Notify the other side that a case has been filed.
○​ The opposing party can file a caveat, asking to be informed immediately if a case
is filed against them.
●​ Alternatively, the plaintiff can directly serve the defendant.
●​ Pleadings
○​ Pleadings are documents filed before the suit.
○​ A plaint is filed by the plaintiff to commence the suit.
○​ After service, the plaintiff files a statement, possibly accompanied by a
counterclaim.
●​ Pre-trial stages
○​ Admission or denial
■​ Parties file documents relied upon, admitting or denying their contents and
related facts.
○​ Discovery
■​ Understand the opposing side's case, including strengths and weaknesses.
■​ Discovery may help avoid trial through settlements. (A general practice in
the US where trial commences at discovery stage ending with a settlement,
but is uncommon in India)
○​ Settling of issues
■​ Based on pleadings and pre-trial stages, courts frame specific issues for
the trial.
■​ This provides structure and avoids irrelevant discussions.
■​ At this stage the trial is deemed to have begun.
●​ Evidence
○​ Evidence can be documentary or otherwise.
○​ Some documents may surface later and require admission or denial.
○​ Summons are issued for witnesses, served like other legal notices.
○​ Oral statements are replaced by affidavits for convenience nowadays.
○​ Types of evidence
○​ Documentary evidence
○​ Witness evidence
■​ Witnesses give a narrative during examination-in-chief, followed by
cross-examination by the opposing side.
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 ○​ Expert evidence
■​ Forensic analysis, fingerprinting, etc., may be contested using other
experts.
●​ Oral hearings
○​ This is the courtroom argument phase, based on records presented to the court.
●​ Judgment and decree
○​ Judgment is announced in open court.
○​ A detailed decree, summarizing the trial outcome, follows.
●​ Interim relief
○​ Temporary orders protect the subject matter during lengthy trials.
●​ Post-judgment
○​ The decree must be executed by the winning party.
○​ The aggrieved party can appeal, continuing the trial process.
○​ Res judicata prevents filing the same case in the same court.
●​ This process defines the life cycle of a civil trial.
●​ Why do civil trials take so long?
●​ Processing time
●​ Lack of automation leads to delays.
●​ Adjournments
●​ Inefficient time management.
●​ Backlog and shortage of judges
●​ India has 10 judges per million people, compared to 50 in the UK and 100 in the US.
●​ Referenced in the 246th Law Commission Report.
●​ Adversarial nature of the system
●​ Lawyers drive the process, leading to longer arguments and delays.
●​ Unlike in France, Indian judges have limited roles in fact-establishment.
●​ Absence of strict time management, like the US's case management meeting, adds to
delays.
●​ Relationship between judges and lawyers
●​ Judges are passive in the common law system, with lawyers leading cases.
●​ Lawyers prioritize their clients, often leading to prolonged oral arguments.
●​ Jurisdictional requirements when filing a suit
●​ The case must meet territorial, subject matter, and pecuniary jurisdiction criteria.
●​ The opposing side can challenge jurisdiction through their written statement.
●​ Court’s preconditions for jurisdiction
○​ Res subjudice (Section 10 CPC)
■​ Ensures the matter is not already pending in another court.
■​ This can be waived.
○​ Res judicata (Section 11 CPC)
■​ Prevents the case from being decided again if already adjudicated.
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 ■​ This cannot be waived.
○​ Limitation period
■​ The case must be filed within the time specified by the Limitation Act.
■​ Cases exceeding this period cannot be waived.
○​ Court fees
■​ Filing fees are proportional to the case's subject matter (ad valorem).
■​ The registry checks for defects in filing, including unpaid fees, before
forwarding the matter to the court. This cannot be waived.
●​ HIERARCHY OF COURTS
●​ Supreme Court
●​ Highest court in India; established under Part V, Chapter IV of the Constitution.
●​ Functions as the Federal Court and guardian of the Constitution.
●​ High Courts
●​ Operate under Article 141 and follow precedents set by the Supreme Court.
●​ India has 28 High Courts covering 28 states and 8 union territories.
●​ District Courts
●​ Function under the administrative control of High Courts.
●​ Handle civil and criminal cases and are supervised by the High Court of their state.
●​ Aim to decentralize the judiciary and serve individuals in remote areas.
○​ Civil Courts
○​ Principal Civil Court
■​ Original jurisdiction in civil matters; hears appeals from subordinate
courts.
○​ Subordinate Civil Courts
■​ Civil Judge (Senior Division)
■​ Handles higher-value disputes and appeals from Junior Division
courts.
■​ Civil Judge (Junior Division)
■​ Handles lower-value disputes; original jurisdiction in minor civil
matters.
■​ Jurisdictional value varies by state, typically disputes involving ₹2
lakh to ₹5 lakh.
■​ Small Causes Courts
■​ Focus on minor civil disputes like rent or small debt recovery.
■​ Simplified procedures for quick resolution.
■​ Jurisdiction generally for cases below ₹1 lakh to ₹5 lakh, varying
by state.
■​ Governed by the Provincial Small Causes Courts Act, 1887.
■​ Key Differences

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 ■​ Small Causes Courts: Specialized, simplified procedures for
minor disputes.
■​ Civil Judge (Junior Division): Broader jurisdiction with formal
CPC procedures.
○​ Criminal Courts
■​ District-level criminal courts address criminal offenses as per the Criminal
Procedure Code (CrPC).
○​ Appeals
■​ Small Causes Courts: Appeals to District Courts or as specified by state
law.
■​ Civil Judge (Junior Division): Appeals to District Court, High Court, and
possibly Supreme Court.
■​ Appeal is continuation of process, so matter has not closed
○​ Legislation Governing Civil Courts
■​ CPC standardizes the process across various civil courts.
■​ Provincial Small Causes Courts Act, 1887 governs Small Causes Courts.
●​ Village Courts / Nyaya Panchayats
●​ Quasi-judicial bodies handling minor civil and criminal cases in rural areas.
●​ Established under Part IV, Article 40 of the Constitution to promote self-governance.
●​ Informal procedures focus on compromise and amicable resolutions.
●​ Jurisdiction covers disputes with monetary values typically up to ₹1 lakh to ₹2 lakh.
●​ Focus on local issues, customary practices, and quick resolution.
●​ Decisions can be appealed to subordinate courts, following this hierarchy:
○​ Nyaya Panchayat → Subordinate Court → High Court → Supreme Court
●​ Additional Specialized Civil Courts
●​ Family Courts: Handle family-related matters like divorce, child custody, and
maintenance.
●​ Consumer Courts: Address consumer disputes and grievances:
○​ District Forum → State Commission → National Commission
●​ Labour Courts: Deal with labor and employment disputes.
●​ Commercial Courts: Handle commercial disputes of specified value.
●​ Tribunals, mostly established post-independence, were originally created to bring
specialization to revenue matters. Historically, the legal system consisted of civil courts
handling both administrative and revenue matters. Over time, administrative and revenue
matters were carved out from the civil domain and assigned to tribunals.
●​ While tribunals are argued to bring specialization, there are several issues with
tribunalisation. The paucity of resources means funds are diverted away from courts
without sufficient investment in tribunals, raising questions about the efficacy of this
approach. Tribunals often operate informally, displaying impatience with procedural

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 safeguards, which can lead to random outcomes and the fragmentation of the legal
system.
●​ Jurisdiction under the CPC: refers to the authority a court has to hear and decide cases.
●​ There are three main types of jurisdiction:
●​ Territorial Jurisdiction: Refers to the court's authority to hear cases within a specific
geographic area. According to Section 1, this jurisdiction extends to the whole of India,
except Jammu & Kashmir and certain northeastern regions (which had a special status
and informal judicial systems). It also includes any courts set up by the central
government. A court can only decide cases within its designated territorial jurisdiction
and cannot hear cases that fall outside its geographic boundaries. The location of the
dispute and the residence of the parties often determine which court has territorial
jurisdiction.
●​ Authoritative (Subject Matter) Jurisdiction: Refers to the court's authority to hear
specific types of cases. For example, under Section 9, only courts with the appropriate
subject matter jurisdiction can decide civil suits, which include cases related to civil
liberties or rights. Each court is authorized to deal with certain kinds of issues based on
the nature of the case. For example, family courts hear family-related matters, while
commercial courts handle business disputes.
●​ Pecuniary Jurisdiction: Relates to the value of the dispute. It determines the financial
limit above which cases must be filed in higher courts. If the case involves a lesser
amount, it must be started in the lower courts. For example, a district court may handle
cases involving sums up to a certain limit, while cases with higher values might need to
be filed in a high court. It is a procedural rule that does not invalidate the jurisdiction of a
higher court. A decree passed by a higher court cannot be considered without jurisdiction;
it is simply an irregularity. The consequences of such irregularities are addressed under
Section 99, which examines the effect of a pecuniary jurisdiction defect.
●​ Impact of an Arbitration Clause on Court's Jurisdiction​
The presence of an arbitration clause in a contract can significantly impact the court's
jurisdiction. If the parties have agreed to resolve disputes through arbitration, the civil
court may be precluded from hearing the matter. Courts will examine the validity and
scope of the arbitration clause to determine if it applies to the current dispute. If the
clause is valid and covers the issue in question, the court may stay the proceedings and
refer the matter to arbitration instead.
●​ Courts generally adhere to the principle that, if an arbitration agreement exists and is
applicable to the dispute, parties must resolve the issue through arbitration rather than
litigation. This is in line with Section 8 of the Arbitration and Conciliation Act, 1996,
which mandates that courts refer matters to arbitration when there is a valid agreement to
arbitrate.

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Ambalal Sarabhai Enterprises Ltd. vs. K.S. Infraspace LLP and Ors. 2019(13) SCALE575

●​ Facts:​
An agreement to sell a piece of land was entered into on February 14, 2012. Later, in
October 2017, the rights under this agreement were assigned to another party. A suit was
filed in the Commercial Court in 2018 to enforce the execution of a Mortgage Deed. The
defendants argued that the case did not qualify as a "commercial dispute" under Section
2(1)(c) of the Commercial Courts Act, 2015, and sought the plaint's return under Order
VII Rule 10 of the CPC.
●​ Issue:​
The issue was whether the immovable property involved was being used solely for trade
or commerce, as required under Section 2(1)(c)(vii) of the Commercial Courts Act, 2015,
to decide if the Commercial Court had jurisdiction to hear the suit.
●​ Analysis:​
The Supreme Court examined Section 2(1)(c)(vii) of the Commercial Courts Act, 2015,
which defines a commercial dispute as one arising out of agreements related to
immovable property used exclusively in trade or commerce. In the case at hand, there
was no indication that the immovable property was being used exclusively for trade or
commerce at the time the agreement was made. The agreement and the plaintiff did not
mention the commercial use of the property as of the date of the agreement. The Court
further observed that the purpose of the Commercial Courts Act is to resolve genuine
commercial disputes efficiently, and not every case with a high value or filed in the
commercial court should be treated as a commercial dispute. A strict interpretation of the
Act is necessary to ensure that only disputes fitting the commercial dispute definition are
entertained by commercial courts.
●​ Held:​
The Supreme Court directed the Commercial Court to return the plaint to be presented in
the appropriate court with jurisdiction. It concluded that the suit did not involve an
immovable property being used exclusively for trade or commerce, and thus, the
Commercial Court did not have jurisdiction over the matter.
●​ Significance:​
This judgment highlights the importance of ensuring that only disputes genuinely
qualifying as "commercial disputes" under the Commercial Courts Act, 2015, are
adjudicated in commercial courts. It reinforces that a strict interpretation of the law is
essential to avoid clogging the commercial court system with non-commercial cases. The
decision also emphasizes that the legislative intent is to ensure efficiency in handling
commercial disputes, and not to divert all high-value or potentially expedited cases to
commercial courts.

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 Module 2- Jurisdiction

Preliminary Jurisdiction

SECTION 9: SUBJECT MATTER JURISDICTION

●​ This involves the initial examination of a case to determine whether the court has the
legal competence to hear the dispute. This includes assessing factors such as subject
matter, territorial jurisdiction, and pecuniary limits. Before delving into the merits of the
case, the court first decides whether it has the proper jurisdiction to handle the matter.
●​ Courts follow the standard procedure under the CPC, which allows for jurisdictional
objections to be raised at various stages of the case (including during interim relief
applications).
●​ Suits of Civil Nature​
Suits of a civil nature refer to disputes that involve private rights and obligations between
individuals or entities, rather than criminal matters. These can include property disputes,
contractual issues, family disputes, tort claims, etc.
●​ Expressly Barred Suits​
The key difference between expressly and impliedly barred suits is that expressly barred
suits are those where a specific law directly prohibits civil courts from hearing the case.
In contrast, impliedly barred suits occur when a dispute is handled by a specialized forum
or tribunal, and civil courts are effectively excluded from jurisdiction due to the presence
of these alternative mechanisms.
●​ Order XIV Rule 2 allows courts to deal with legal issues in a suit in a specific order.
When a case involves both legal and factual issues, the court may choose to resolve a
legal issue first if it is crucial to the outcome of the case, particularly when the issue
relates to the court’s jurisdiction or a legal bar to the suit, such as a time limit or other
statutory restriction. If the court decides on the preliminary legal issue first, it may
postpone the resolution of other issues until after the legal matter is settled. However,
even if the case is disposed of based on a preliminary legal issue, the court must
eventually pronounce judgment on all the issues raised in the case.
●​ In cases of doubt about jurisdiction, whether related to subject matter, territory, or
pecuniary limits, the presumption should favor the court's jurisdiction. For example, if a
new tribunal is set up for agricultural disputes but there is uncertainty whether a case falls
under its scope, the matter should be heard by the civil court unless there is a clear
restriction. Similarly, in cases involving pecuniary jurisdiction, the court should assume it
has jurisdiction unless it is evident that the case exceeds the court's financial limits. Only
a preliminary examination is needed to determine jurisdiction.

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Aspect Inherent Lack of Jurisdiction Irregular Exercise of Jurisdiction

Authority Court does not have the authority to Court is otherwise incompetent to
hear the subject matter. grant relief.

Origin Arises from the defect of Subject Arises from the defect of pecuniary
Matter Jurisdiction jurisdiction or Territorial
Jurisdiction.

Cure Defect is not curable because the Defect is curable as it does not
court is not a competent forum for affect the root of the matter
the matter. (exception: fraud).

Effect on Order Resultant decree or order is null and Decree or order passed is deemed
void. valid.

When Objections Can Be Raised Can be raised at any stage of the Must be raised at the earliest
suit; can be challenged in collateral opportunity during the trial (before
proceedings or through a new suit. the settlement of issues); failure to
raise is deemed a waiver.

●​ Collateral proceedings: are legal actions secondary to the main case, addressing issues
like challenging the validity of a decree or its execution. Instead of contesting the
underlying judgment, a party may initiate these proceedings to dispute the execution
process. These proceedings focus on specific enforcement issues without reopening the
entire case and are separate from appeals, targeting matters that affect the fairness or
constitutionality of the original proceedings.
●​ As per Section 28 of the Indian Contract Act, 1872, any agreement that ousts the
jurisdiction of a court is null and void. However, if the parties agree to submit disputes to
a specific court with concurrent jurisdiction, through a forum selection clause, it does not
oust the jurisdiction of other courts. Instead, it creates a bar preventing the parties from
moving to other courts, based on the principle of estoppel by agreement. This means that
the parties are bound by their agreement to litigate in the selected forum and cannot
challenge the jurisdiction of that court later.
●​ Jurisdictional defects related to territorial or pecuniary errors must be raised before
framing issues, unless the error was unintentional.

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 ●​ For example, if parties agree to confer jurisdiction to a non-jurisdictional court through
an exclusive jurisdiction clause and obtain a decree, but it is later found that they did so
with fraudulent intent to misuse the law, the court can declare the decree void. The court
may also impose penalties or dismiss the suit for vexatious litigation.
●​ Such jurisdictional defects cannot be waived or cured after framing issues, as they strike
at the court's very authority, and cannot be corrected by consent (as per Kiran Singh v.
Chaman Paswan).
●​ As per Order 7, Rule 1, the jurisdiction clause must be included in the plaint. If omitted,
the plaintiff may be returned for correction or rejected, depending on the nature of the
jurisdictional defect.
●​ If the defendant objects to the jurisdiction selected by the plaintiff, the burden of proving
that the chosen jurisdiction is invalid falls on the defendant

Kiran Singh & Ors v Chaman Paswan 1954 AIR 340 : 1955 SCR 117

●​ Facts: The case involved a dispute over the jurisdiction of a trial court to entertain a suit.
The appellants challenged the court's jurisdiction, arguing that the value of the subject
matter exceeded the pecuniary limits of the court's jurisdiction.
●​ Issue: The central issue was whether a decree passed by a court without jurisdiction is a
nullity and whether it can be challenged at any stage of the proceedings.
●​ Analysis: The Supreme Court analyzed the principle that any decree passed by a court
without jurisdiction is void and cannot create any legal rights. The Court emphasized that
defects in jurisdiction, whether territorial, pecuniary, or subject-matter related, strike at
the very authority of the court to pass any decree. The Court further stated that such a
defect cannot be cured even by the consent of the parties involved.
●​ The Court also highlighted that addressing jurisdictional issues promptly is essential to
prevent unnecessary litigation and conserve judicial resources.
●​ Held: The Supreme Court ruled that a decree passed by a court without jurisdiction is a
nullity and can be challenged at any time, even in collateral proceedings or during
execution. The Court emphasized the need for jurisdiction to be established before
proceeding to the merits of the case, ensuring judicial efficiency and preventing
unnecessary use of resources. So the court did not declare the decree as null and void as it
did not affect the merits of the case.

Territorial Jurisdiction

SECTION 20: It is a residuary clause, meaning S16 takes precedence over Section 20.

Khandesh Spinning & Weaving v Mool Jaith & Co 1948 (50) BOM LR 49

●​ Facts: This case revolves around the interpretation of Clause 12 of the Letters Patent,
which is pari materia to Section 16. The appellant, Khandesh, is a company, and the
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 Mool Jaith are former agents of the company. The agency was terminated in November
1940, buy land in Jalgaon, which was purchased using Khandesh's money, stood in the
agents' names. Khandesh filed a suit for declaration, seeking to declare documents in its
name and establish ownership of the land.
●​ The trial court dismissed the suit, ruling that the court lacked territorial jurisdiction
because the land was in Jalgaon. The trial court further stated that, since it could not
decide the primary issue of land ownership, it could not entertain ancillary matters related
to the land.
●​ The appeal was made to a Division Bench, which questioned the territorial jurisdiction of
the Bombay High Court, as the defendants were situated there and the deed of land had to
be executed within its jurisdiction. This case essentially revolves around the
interpretation of Clause 12 of the Letters Patent and its relationship to Section 16 of the
CPC.
●​ Issue: The central issue in this case is whether the suit is one "for land," and if so,
whether the Bombay High Court has the jurisdiction to adjudicate the matter.
Specifically, the court had to determine whether the suit is "substantially related to land,"
and if the High Court has jurisdiction over such suits when the primary question is not
land ownership but involves ancillary matters, such as contractual issues.
●​ Analysis: The court considered three interpretations of "suit for land" in the context of
Clause 12, which are:
●​ Suit for the recovery of land – directly related to the possession or ownership of land.
●​ Suit substantially related to land – involves issues related to land but may not directly
concern ownership or possession.
●​ Suit concerning land – involves issues like rights or title related to land.
●​ The court referred to English equity practices, noting that while English courts
traditionally exercised jurisdiction over land within their territorial jurisdiction, they
could also decide ancillary issues, such as contractual disputes, even if the land was
outside their jurisdiction. The court found that the facts of the case had no specific
connection to the locality of the land in Jalgaon. The suit, being contractual in nature, was
not a suit for land. The question of land ownership was ancillary to the main issue of the
contract between Khandesh and the agents.
●​ The court emphasized that a suit could be "substantially related to land" if the issue of
land ownership is central to the case. In this case, however, the central issue was the
contract, and the question of land ownership was incidental to the contractual dispute. As
a result, the High Court could exercise jurisdiction over ancillary issues related to the
contract, even if the main issue concerned land.
●​ The court also discussed the concept of "equitable powers," where even if territorial
jurisdiction over land was absent, a court could still decide related matters like debts or
other equitable issues if the defendant was within its jurisdiction. This was in line with
the practice of English equity courts.
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 ●​ Held: The suit was filed by a principal against their agent to investigate the affairs of the
agency and charge the defendants with misconduct. The plaintiff's request for the transfer
of lands bought by the defendant in Jalgaon to the plaintiff’s name was not an
independent claim about the land title but was related to the defendant’s agency, as it was
claimed that the defendant used the plaintiff's funds to acquire the land. This created a
personal equity between the parties arising from the agency contract. Under the proviso
to Section 16 of the CPC, the court could act in personam on the conscience of the
defendants, who were within the court's jurisdiction. Therefore, the Bombay High Court
had jurisdiction to hear the case.

Harshad Chimmanlal Modi v DLF Universal (2005) 7 SCC 791 (Immovable Property)

●​ Facts: Harshad Chimanlal Modi, the plaintiff (Adv Indu Malhotra), filed a suit against
DLF Universal Ltd. & Anr. (Adv Mukul Rohtagi)for specific performance of a contract
involving the purchase of a flat developed by the defendant in Gurgaon, Haryana. The
plaintiff sought possession of the flat and other reliefs. The suit was filed in the Delhi
court, but after 8 years of filing the written statement, the defendants wanted to file for an
amendment under Order 6 Rule 17 that Delhi does not have jurisdiction and the lower
courts allowed.
●​ Issue: The central issue was whether the Delhi court had territorial jurisdiction to
entertain the suit for specific performance and possession of immovable property situated
in Haryana.
●​ Analysis: The plaintiff argued that since the agreement was executed in Delhi and the
defendant had its registered office there, part of the cause of action arose in Delhi, giving
the court jurisdiction. The defendant, however, contended that under Section 16 of the
CPC, suits related to immovable property must be filed in the court within whose
jurisdiction the property is situated. Since the flat was in Gurgaon, Haryana, the
defendant asserted that the Delhi court lacked jurisdiction. The court examined Section
16, which specifically applies to immovable property, and Section 20, which allows suits
based on the defendant’s residence or business operations or where part of the cause of
action arises.
●​ Indu Malhotra argues that the defendant waived the jurisdiction requirement due to an
8-year delay in raising the objection. She claims that despite the plot being in Gurgaon,
the contract was signed in Delhi, establishing a connection to Delhi and justifying the
choice of jurisdiction. She further invokes the Section 16 proviso, arguing that the
defendant’s presence in Delhi (where DLF's headquarters are located) should allow the
case to be heard there, as the provision permits lawsuits where the defendant resides.
Malhotra also draws on the historical context of the proviso, likening it to English
common law, where courts could assert jurisdiction based on personal obedience even
outside their territorial jurisdiction.

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 ●​ Mukul Rohatgi counters that jurisdiction should be based on the connection to the matter,
emphasizing that the plot is in Gurgaon, not Delhi, and the case is purely domestic. He
argues that the plaintiff cannot invoke Section 20 without first meeting the requirements
of Section 16, and stresses that the correct provision for jurisdiction is Section 16(D).
Rohatgi also points out that the Section 16 proviso should only apply when all other
jurisdictional avenues have been exhausted, which is not the case here. He further argues
that Section 21 cannot be used to grant jurisdiction if the Delhi court does not have the
authority under Sections 16-20.
●​ The court needs to decide whether Delhi courts can assert jurisdiction, considering both
the contractual choice of jurisdiction and the defendant's presence in Delhi, or if the case
should be heard in Gurgaon based on the connection to the property.
●​ Held: The Supreme Court held that Section 16 of the CPC, which deals specifically with
suits related to immovable property, takes precedence over Section 20. Therefore, the suit
concerning immovable property in Gurgaon should have been filed in the court within
whose jurisdiction the property was located, i.e., in Haryana. The Delhi court did not
have territorial jurisdiction to hear the case. Held neither proviso to S16 applies and nor
the S20, what is applicable is S16d as the question was of right of interest
●​ Significance: The case reinforced the importance of Section 16 of the CPC in
determining jurisdiction for suits involving immovable property. It clarified that
irrespective of where the agreement was executed or where the defendant resides or
conducts business, suits concerning immovable property must be filed in the court within
whose jurisdiction the property is situated.

Swastik Gases v IOCL (2013) 9 SCC 32

●​ Facts: Swastik Gases Ltd (Plaintiff) and the Indian Oil Corporation (Defendant) was
engaged in the business of manufacturing, storing, and distributing petroleum products.
The Plaintiff was appointed as an agent to market these products in Jaipur. However, the
Plaintiff faced difficulties in selling the products, leading to disputes between the parties.
Despite attempts at an amicable settlement, the Defendant filed a suit in the Rajasthan
High Court. However, the agreement between the parties contained an exclusive
jurisdiction clause, stating that the courts in Kolkata would have exclusive jurisdiction
over disputes. The Rajasthan High Court, citing this clause, dismissed the Plaintiff’s plea
and directed them to approach the Kolkata High Court.
●​ Issue: The main issue was whether the exclusive jurisdiction clause in the agreement,
which designated Kolkata as the sole forum for disputes, was enforceable.
●​ Analysis: The Plaintiff appealed to the Supreme Court, arguing against the exclusive
jurisdiction clause. The Supreme Court, in its majority judgment, applied the maxim
Expressio unius est exclusio alterius, meaning that when a particular thing is expressly
mentioned, others from the same category are excluded. The Court held that since the
agreement clearly stipulated that only the courts at Kolkata had jurisdiction over disputes,
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 this provision was binding, and the Plaintiff was required to approach the Calcutta High
Court. The Court noted that the exclusive jurisdiction clause was a clear intention of the
parties and must be respected.
●​ Held: The Supreme Court upheld the validity of the exclusive jurisdiction clause in the
agreement and dismissed the Plaintiff’s appeal. The ruling reinforces the principle that
when parties expressly agree to a specific court's jurisdiction, that court’s authority
prevails over others, as long as the clause is clear and unequivocal. It also clarifies that
such clauses are binding, and courts must respect the parties' intent as expressed in the
agreement. The basic principle in matters of jurisdiction is that when two courts have
jurisdiction over a dispute, the parties involved can choose one court. However, this
choice must align with the jurisdictional limits defined by the CPC. For example, a court
in Chennai cannot be selected if it has no connection to the dispute or the parties. The
Supreme Court, in the case of Hakam Singh, upheld the principle that when two courts
have jurisdiction, parties can choose one. This case also focused on the interpretation of
clauses and how they should be enforced. The Court emphasized that the substance of the
contract should be examined over its form, meaning that when reading a clause, one must
consider the entire agreement to understand whether the jurisdictional choice is exclusive
or non-exclusive. Under Section 28 of the Indian Contract Act, any contract that limits
access to courts is prohibited, but choosing a specific court for jurisdiction does not
violate this provision. Thus, the Court held that choosing Kolkata as the designated forum
for dispute resolution does not go against Section 28 of the ICA or public policy under
Section 23 of the ICA, as long as the parties are not barring access to the courts entirely.
●​ In this context, the Court ruled that since Kolkata was chosen, the application had to be
filed there, and not in Jaipur. The issue of one party having an advantage in Kolkata, due
to their presence there, was countered by the fact that the parties had agreed to Kolkata as
the forum. This case is distinct from international cases, like Modi Entertainment, where
parties can freely choose any forum. In India, however, the choice of court is limited to
one of the courts that the CPC provides jurisdiction over, narrowing the scope for forum
selection in domestic cases.

Adcon Electronics Pvt Ltd v Daulat AIR 2001 SC 3712: (2001) 7 SCC 698 (Suit for Land)

●​ Facts: On July 12, 1986, Adcon Electronics Pvt. Ltd. (defendant) agreed to sell a
property, Vithal Bhavan in Indore, to Daulat (plaintiffs). A memorandum was executed
on August 1, 1987, to further formalize the agreement. Disputes arose regarding the
performance of the agreement, leading Daulat to file a suit in the Bombay High Court
seeking specific performance of the contract and a declaration that the agreement was
still binding. The suit was filed with the leave of the Bombay High Court under Clause
12 of the Letters Patent, which grants original jurisdiction to the High Court in certain
cases. The defendant challenged the Bombay High Court’s jurisdiction, arguing that since

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 the suit concerned immovable property, it should fall under the category of "suit for land"
as per Clause 12, which deals with suits relating to immovable property.
●​ Issue: Whether a suit for specific performance of a contract for the sale of immovable
property, without a specific prayer for possession, is considered a "suit for land".
●​ Analysis: The Court noted that while the contract was related to immovable property, a
suit for specific performance is primarily focused on enforcing the terms of the contract
and does not necessarily involve a direct claim for possession or title to the land. The
Court referred to Section 22 of the Specific Relief Act, 1963, which allows for specific
performance of a contract for the sale of immovable property without a requirement for
possession. The Court further noted that a "suit for land" typically involves a direct claim
to possession or title to the land itself, which was not the case here.
●​ Held: The Supreme Court ruled that a suit for specific performance of a contract for the
sale of immovable property, without a specific prayer for possession, does not fall under
the category of a "suit for land" as per Clause 12 of the Letters Patent (Section 16 of
CPC). The Court upheld the Bombay High Court's decision that the leave granted to the
plaintiffs was proper, as the suit was primarily about the enforcement of the contractual
agreement rather than a claim for land. The appeal by Adcon Electronics Pvt. Ltd. was
dismissed.

Scope of Section 9 - Civil Nature

Horil v Keshav & Anr (2012) 5 SCC 525

●​ Facts: The appellant, Horil, filed a suit in the court of Munsif, Karwi, seeking to declare
a decree passed by the Assistant Collector as fraudulent, invalid, and not binding on him.
The decree, dated April 25, 1979, was based on a compromise allegedly signed by the
appellant's father, Chunkai, on October 7, 1971. Horil claimed that Chunkai’s signature
was forged and that Chunkai had already passed away by the time the decree was issued.
He further argued that no notice was served on Chunkai, who neither appeared in the
proceedings nor signed the compromise petition, and sought to have the decree declared
void from the outset.
●​ The appellant contended that the decree was based on a fraudulent compromise petition
and that the civil court had jurisdiction to declare the decree void due to fraud. In
contrast, the respondents argued that the suit was beyond the jurisdiction of the civil court
and should be tried by the revenue authorities. They cited Order XXIII Rule 3-A of the
CPC, which prohibits a fresh suit to set aside a decree based on a compromise. Here, he
was challenging the decree passed by a revenue court.
●​ Issue:
●​ Whether the civil court had jurisdiction to entertain the suit filed by the appellant
challenging the compromise decree. Whether the suit was barred under Order XXIII Rule
3-A.
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●​ Analysis: Order XXIII, Rule 3-A prohibits the filing of a separate suit to set aside a
decree based on a compromise. This rule prevents a party from reopening a matter
already settled by a compromise decree and promotes finality in legal proceedings.
According to this provision, the only available remedy for a party dissatisfied with a
compromise decree is to appeal or seek a review/revision under the appropriate CPC
provisions.
●​ However, the appellant's case involved allegations of fraud in the compromise. Section
341 of the U.P. Zamindari Abolition & Land Reforms Act makes the CPC applicable to
revenue court proceedings under the Act. The appellant argued that the fraud in the
compromise rendered the decree invalid and that the civil court had jurisdiction to
address the issue.
●​ The civil court has inherent jurisdiction to try all types of civil disputes unless
specifically barred by law. Since the revenue court had limited jurisdiction, the civil court
was competent to hear the suit, especially in cases involving allegations of fraud, which
the revenue court may not have the authority to address.
●​ Held: The court held that the civil court did have the jurisdiction to entertain the suit filed
by the appellant. The civil court, having inherent jurisdiction to hear all civil matters
unless specifically barred, could hear cases involving allegations of fraud. Since the
appellant was challenging the decree on the grounds of fraud, which questioned the
legitimacy of the compromise, the civil court had the authority to adjudicate the matter.
●​ As for the applicability of Order XXIII Rule 3-A, the court found that the appellant’s case
fell within the exception because it involved allegations of fraud, which could potentially
vitiate the compromise decree. Therefore, the civil court could entertain the suit and
examine whether the decree was obtained through fraudulent means.
●​ Jurisdiction of Revenue Courts
●​ The jurisdiction of revenue courts is governed by state-specific laws, such as the Uttar
Pradesh Zamindari Abolition and Land Reforms Act, which define their scope, typically
covering land and tenancy disputes. Civil courts generally have jurisdiction unless
explicitly excluded by law. In this case, the appellant challenged a revenue court decree,
claiming it was based on a fraudulent compromise. The challenge was not barred by
Order XXIII Rule 3-A, as this rule applies only to civil court decrees, not revenue court
decrees.
●​ The Supreme Court clarified that revenue courts handle land-related issues, while civil
courts address broader matters, including fraud. Although the CPC applies to revenue
court proceedings, revenue courts lack the authority to adjudicate complex issues like
fraud. Since the challenged decree came from a revenue court, Order XXIII Rule 3-A did
not apply. Moreover, no law restricted the civil court’s jurisdiction in this case, allowing
the appellant’s suit to proceed.

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Rev. P.M.A. Metropolitan v. Moran Mar Marthoma & Anr 1995 SCC Supl. (4) 286

●​ Facts: The dispute revolves around the Malankara Syrian Church and the election of
Moran Mar Marthoma as its Catholicos (head). The appellant, Most Rev. P.M.A.
Metropolitan, challenged the election, claiming it violated the church's constitution and
procedural norms. He sought intervention from civil courts, alleging improper conduct of
the election.
●​ Issue: The central issue was whether civil courts have jurisdiction under Section 9 of the
CPC to adjudicate disputes of an ecclesiastical nature involving religious and doctrinal
matters.
●​ Analysis:​
Under Section 9, civil courts have jurisdiction to hear all suits of a civil nature, unless
expressly or impliedly barred. The appellant argued that the dispute over the election of
the Catholicos involved civil rights, particularly the legal status of the election and church
office, and thus fell within the purview of civil courts. The appellant emphasized that the
church's constitution and procedural violations were issues that affected legal rights and
obligations.
●​ However, the respondent contended that the issue was purely ecclesiastical, involving
religious doctrine and the governance of the church, which civil courts should not
interfere with. He emphasized that religious matters, particularly those relating to
ecclesiastical office and authority, fall within the domain of the church, and civil courts
should respect the autonomy of religious institutions in these matters.
●​ The Court acknowledged that civil courts do not have jurisdiction over purely religious or
doctrinal issues. These issues, such as the interpretation of religious doctrines or
faith-based practices, should be decided by the religious authorities within the church.
However, the Court clarified that civil courts do have jurisdiction over disputes involving
legal rights or obligations, even if they arise within a religious context. In this case, the
validity of the election and its implications on the legal status of the Catholicos and the
church’s governance were civil matters.
●​ Held: The Supreme Court held that civil courts do have jurisdiction under Section 9 of
the CPC to decide disputes involving civil rights, even if they arise within a religious
context (Section 9 explanation 1). The Court emphasized that civil courts can intervene
when there is a legal dispute over the management of property, the validity of elections,
or the legal status of a position within a religious institution. However, the Court also
made it clear that civil courts should refrain from adjudicating purely religious or
doctrinal issues, such as the interpretation of religious texts or faith-based practices.
●​ In this case, since the dispute involved the validity of the election, which was tied to the
legal rights of individuals and the governance of the church, the Court held that the civil
courts had jurisdiction to adjudicate the matter.

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 ●​ Purely Religious Matter:​
A "purely religious matter" refers to a dispute or issue that is entirely related to religious
beliefs, practices, or doctrines, without involving any legal or civil rights. These matters
are typically spiritual in nature and do not have a direct impact on legal or property
rights.

Subject Matter Jurisdiction

Dhulabhai v State of M.P. (1968) 3 SCR 662

●​ Facts: Dhulabhai, a businessman, was subjected to a sales tax by the State of Madhya
Pradesh under the Madhya Bharat Sales Tax Act, 1950. He paid the tax under protest,
claiming that the tax was unconstitutional as it violated Article 301 of the Indian
Constitution. Dhulabhai filed a civil suit to recover the tax paid, arguing that the levy was
invalid due to the unconstitutional nature of the Act. The State, however, contended that
the civil court had no jurisdiction over such matters, as taxation issues were within the
purview of tax authorities and governed by the provisions of the Madhya Bharat Sales
Tax Act, 1950.
●​ Issue: The central issue was whether a civil suit could be maintained to recover taxes
paid under a law that was alleged to be unconstitutional or void.
●​ Analysis: The Court acknowledged that certain statutes may bar civil court jurisdiction in
matters relating to tax assessment, collection, or refund. However, the Court also noted
that civil courts retain jurisdiction when the statute in question is challenged on grounds
of unconstitutionality or when the provided remedy under the statute is inadequate.
●​ Held: In this case, since the tax was challenged as unconstitutional, Dhulabhai’s suit was
maintainable. The Court emphasized that if a statute provides a special remedy but it is
inadequate or the statute is unconstitutional, a civil suit can be filed to recover the tax
paid.
●​ Significance: This case is significant because it clarified that civil courts can entertain
suits to recover taxes collected under an invalid or unconstitutional law. This case relates
to a taxation matter, but para 35 of the judgment delivered by the Constitution Bench
discusses the meaning and scope of the words “express and implied bar” in relation to the
exclusion of subject matter jurisdiction of civil courts. When a statute grants finality to
the orders of special tribunals, the jurisdiction of civil courts is excluded. In such cases,
civil courts cannot entertain matters that fall within the jurisdiction of those tribunals. If
there is an express bar of the court’s jurisdiction in a statute, the adequacy or sufficiency
of the remedies provided under that Act may be examined to determine if the civil court's
jurisdiction is excluded. Furthermore, a challenge to the provisions of the Act as ultra
vires cannot be brought before tribunals constituted under that Act. However, if a
provision of the Act is declared unconstitutional or the constitutionality of any provision
is in question, such a matter can be brought before a civil court through a suit.
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 Objections to Jurisdiction

SECTION 21

Hiralal v Kalinath (1962) 2 SCR 747

●​ Facts:​
Hiralal wanted to buy shares of a company in Agra and hired an agent, Kalinath, to assist
in the deal. However, Hiralal did not pay Kalinath’s commission. Kalinath filed a suit for
the recovery of his commission in the Bombay High Court. Hiralal objected to the
jurisdiction, claiming that the suit was outside Bombay's territorial jurisdiction since the
cause of action arose in Agra. The court referred the matter to arbitration, and the
arbitrator ruled in favor of Kalinath. Hiralal challenged the arbitration award in the
Bombay High Court, but the court found no defect in the award and dismissed the
petition with costs. Hiralal’s subsequent appeal was also dismissed, and the award was
converted into a decree. The decree was transferred to the District Judge of Agra for
execution.
●​ Hiralal raised the same objection regarding jurisdiction under Section 47 and Section
151, but the objection was dismissed. He then appealed to the Allahabad High Court,
which also dismissed his appeal. Finally, Hiralal appealed to the Supreme Court.
●​ Issue:​
The primary issue before the Supreme Court was whether the appellant could challenge
the jurisdiction of the Bombay High Court during the execution proceedings after failing
to raise the objection during earlier stages of the case.
●​ Analysis:​
The Court referred to Section 21, which mandates that objections to territorial or
pecuniary jurisdiction must be raised at the earliest possible opportunity. The Court
explained that if the jurisdiction pertains to the subject matter of the suit (subject-matter
jurisdiction), it can be challenged at any stage. However, territorial and pecuniary
jurisdiction must be questioned as soon as possible, ideally during the written statement
or before the framing of issues in the trial. If the objection is not raised early on, the party
is considered to have waived it, and it cannot be raised later, especially once a decree has
been passed. The Court also held that even if the objection to jurisdiction was not raised
at the trial stage, it cannot be entertained later in the appeal or execution proceedings
unless it was not raised earlier due to a reasonable cause. Once the decree becomes final,
it cannot be set aside on jurisdictional grounds if no objection was raised during the trial
or appeal. This judgment leads to a liberal interpretation of the meaning of ‘waiver’ of
the right to object to jurisdiction under Section 21. It not only includes an omission to
raise an objection but also a positive act by the party to the suit, showing consent or
acceptance of the jurisdiction. Here he consented to the arbitral award so it was taken as a

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18
 waiver of objection so he could not now challenge the decree on the basis of irregularity
in jurisdiction.

Res sub-judice, res judicata

SECTION 10: STAY OF SUIT

●​ All sections in any act have to be read carefully as they contain principles. There is no
effect on the previously instituted suit, but only the second one
●​ If res subjudice occurs, the second case would not be thrown out of the court but will be
stayed.
●​ Pre-conditions are: Both cases will have to be from civil courts that have the jurisdiction
to grant the relief made. Suppose the second suit you filed involves something the first
court could not have tried. In that case, the second court stands at a higher position, and
res subjudice won’t apply. It doesn’t work between a court and a tribunal, as the section
uses the word "court" and tribunals have different jurisdictions. There has to be an
identity of the parties; they must be the same or legal heirs of the same parties for res
subjudice to apply to the second suit.
●​ The third condition is that the matter has to be directly or substantially the same. The
language of the code says "directly or substantially the same" rather than "exactly the
same."
●​ For example, if a company is registered in Delhi and another in Bombay, and they enter
into a contract, but the latter finds the quality not the same and stops payment, a specific
performance of the contract is filed, and the other party files for damages. There are two
suits, but are they the same matter? Two different reliefs have been sought, but we need
to decide whether there was a valid contract and if there was a breach. The question is
what is at the heart of the suit, if the content is the same for both.
●​ Finally, the first suit has to be pending, as if it is terminated, then there is no question of
res subjudice, but rather res judicata. "Stay" means the suit cannot go into trial, though
interim relief may be granted; the trial would be barred.
●​ This provision stops parallel proceedings, prevents opposing judgments, and prevents
courts of concurrent jurisdiction from conflicting. The good thing about S10 is that you
can waive it, as you are wasting time and money; however, the court may, at its
discretion, stop proceedings. Generally, you can waive it.
●​ The court can't know if there are parallel proceedings, as in common law, the court only
sees and hears what is presented to it.
●​ S10 is a mechanical rule; if someone asks why not stay the first suit if it is at an early
stage, the answer is that it cannot happen. It is a mechanical rule that the earlier suit
continues, and the later one stays. It is a rule of procedure.
●​ The CPC is an adjective law, i.e., procedural. When something is procedural law, you can
waive it, but the court won't allow it as it leads to a wastage of time.

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 ●​ Test for res subjudice: Whether the decision in the previously instituted suit would
operate as Res Judicata in the subsequent suit.
●​ If all conditions are not satisfied, the court can still stay proceedings in the interest of
justice under Section 151.
SECTION 11: RES JUDICATA

●​ In order for the principle of res judicata to apply, certain requirements must be met.
○​ First, the matter in the second suit must be the same as the matter in the first suit,
either directly or constructively. This means that the issue at hand in both suits
must be substantially the same.
○​ Second, the parties involved in the second suit must be the same as those in the
first suit or be claiming through the same title. This ensures that the same legal
parties are involved in both cases.
○​ Third, the parties in the original suit must have been litigating under the same title
as they are in the second, meaning they should have the same legal interest in the
subject matter.
○​ The court that heard the initial suit must also be competent to hear the subsequent
suit, ensuring that the prior court’s judgment was made by a court with proper
jurisdiction. The court’s decision in the original case must have been final and
conclusive, meaning it resolved the key issues and was not subject to further
appeal or modification.
●​ Additionally, under Order II Rule 2 of the CPC, a plaintiff is required to include all
claims based on the same cause of action in one suit. This rule prevents a plaintiff from
filing multiple suits for different reliefs stemming from the same cause of action.
However, it does not prevent a second suit based on a different, distinct cause of action.
Essentially, the rule ensures that the plaintiff must present all claims related to the same
issue in a single suit, thereby preventing the defendant from being repeatedly sued over
the same matter.
●​ A Tehsil, or a Tehsildar, falls under Section 11 because, as per Explanation VIII, it is
considered a court of competent jurisdiction for certain matters, particularly those
involving revenue disputes or land records. This means that if a Tehsildar has previously
adjudicated a matter within their jurisdiction, such as a land dispute, that decision can
prevent the same issue from being re-litigated in another court, as per the principle of res
judicata in Section 11.
●​ However, a Tehsildar's court does not fall under Section 10 of the CPC. Section 10
specifically applies to courts of competent civil jurisdiction and aims to prevent parallel
civil suits from being filed in different courts. A Tehsildar, while competent in matters of
revenue and land administration, is typically an administrative or revenue officer, not a
civil court judge. Therefore, proceedings before a Tehsildar are not considered "civil
suits" under Section 10.
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●​ Res judicata is a part of a wider body of procedural tools called estoppel.
●​ It is called estoppel by accord or judgment. S115 of the Evidence Act defines estoppel.
●​ Principles of equity: In England, there used to be two streams of law:
○​ Common law: Common customs of the Anglo-Saxon tribe.
○​ Principle of equity: Reason and logic applied to law, derived from canon and
civil law. They were applied in separate trials.
○​ If you wanted specific performance, you went to the court of equity or courts of
chancery. In 1873, they merged them and now they are called Royal Courts of
Justice, which have powers of both.
○​ All equitable powers have been transferred to the Royal Courts of Justice.
●​ Estoppel was a principle of equity. It is not confined to just CPC; it is found in
evidence, CPC, and even in contract and criminal law.
●​ There are many types of estoppel, forming a family of estoppels. Res judicata is just one
example, and S11 includes more types. S11 includes more than just res judicata.
●​ Judges have taken the view that S11 only records the principle.
●​ Unlike Section 10, S11 may apply to tribunals as well.
●​ In S11, the bar is that no court shall try the case, stopping the case wherever it is. In S10,
the suit 2 can't even go to trial.
●​ In S11, you need to have a decree on the substance of the issue. Alternatively, the other
party may withdraw, or one party may be removed, or the operation of law may stop the
case. These alone are not sufficient for res judicata to apply. The court has to decide the
issue on the merits for res judicata to come into play.
●​ S11 has two things: So, S11 is the whole family of estoppel hidden in one section:
○​ No court shall try any suit (res judicata).
○​ No court shall try any issue (issue estoppel).
●​ S11 includes different kinds of estoppel:
○​ Res judicata.
○​ Issue estoppel.
○​ Cause of action estoppel.
○​ Claim estoppel.
○​ Constructive res judicata (explanation 4).
○​ Relief estoppel (explanation 5).
●​ In S10, there is only “try any suit,” not “issue.”
●​ What happens to res judicata if the matter goes to appeal? Until the appeal is over, the
effect of res judicata does not come into play, as when the matter is under appeal, it is not
decided yet.
●​ Constructive Res Judicata: In a case about property ownership, you don’t argue about
the boundary line even though you could have. Later, you can’t file a new case just to
argue the boundary, it should have been included earlier.

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 ●​ Order 2 Rule 2: You file a case asking for rent due but don’t include damages for breach
of contract (from the same rental agreement). Later, you can’t file another case to claim
damages unless the court allows you to leave it out.

Concept Definition Key Focus Scope

Res Judicata A matter adjudicated by a competent Finality of judgment and Conclusive as to the rights of the
court and a final judgment rendered on prevention of re-litigation. parties on the same cause of action.
the merits, preventing further litigation
on the same cause of action.

Constructive Issues that should have been raised in the Extends the effect of Res Judicata Prevents relitigation of related
Res Judicata original case but were not are precluded to issues that were not directly matters or claims that could have
from being litigated in a subsequent suit. raised but should have been. been raised.

Estoppel Prevents a party from asserting a claim or Preventing a party from changing Can operate independently of a prior
defense inconsistent with their previous their legal position, focusing on judgment, based on the party's
position or representation, especially if it the consistency of their actions or conduct, representations, or claims in
misled the other party to their detriment. representations prior actions.

Order II Rule 2 If more than one relief is available in a Preclusion of later suits for claims Bars a second suit for claims related
suit but only some are claimed, the that could have been raised in the to the same cause of action if not
remaining claims must be filed in the original suit. raised in the original suit, unless
same suit or they are barred from being leave of court is granted.
filed later.

●​ If you have both a tribunal and a court, can their jurisdictions be concurrent?
●​ It is important to specifically plead matters in a case. Someone must decide whether all
the necessary elements have been checked. For example, when filing your written
statement, you may claim that the issue has already been decided elsewhere.
●​ If the first court did not have competent jurisdiction, the matter would not be considered
res judicata, as the decision would be null. "Liberty" in this context refers to procedural
permission. For example, if you plead a claim (ABC) and the court permits you to plead a
part (C) in front of another court, then res judicata would not apply. Liberty is usually
granted as a procedural matter. While liberty after a decree is not common, it can still
occur.
●​ Res judicata is not limited to co-plaintiffs or co-defendants; it applies to all parties
involved in the matter. It can also apply to various parts of the same proceedings. For
instance, if a preliminary decree has been issued and not challenged, you cannot
challenge the content of that decree in a later part of the same suit. Concurrency does not
depend on whether there is a right to appeal or not.
●​ In the first explanation, res judicata applies based on which suit is decided first, rather
than the order of filing. Section 10 of the CPC allows for the discretion of the party,
which can be waived. In the case where Court 1 and Court 2 are hearing the same case (A
v B), and Court 2 has the possibility of appeal, res judicata still applies. When the CPC
uses the term "appeal," it refers to appeals under the CPC and not SLPs.
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●​ The second explanation addresses why concurrency does not depend on the right to
appeal. Sometimes, appeals are treated as vested rights, meaning that not having an
appeal option could weaken the procedural position. This explanation clarifies that
concurrency is not affected by whether there is a right to appeal or not.
●​ The third explanation highlights the concept of sub silentio, meaning that everyone
remained silent. The logic here is that if there is a mistake and no one has pointed it out,
res judicata will not apply because there was no application of reasoning.
●​ The fourth explanation deals with constructive res judicata.
●​ The fifth explanation addresses prayer clauses in a plain. After listing the prayer clauses
(e.g., 1-8), if the court grants prayers 1-7 but not 8, it is assumed that the 8th prayer is
rejected. This does not mean the court is sub silentio; it simply means the court does not
wish to grant it.
●​ The sixth explanation pertains to representative suits, where a group is represented on
behalf of its members. In such cases, res judicata applies to the group.
●​ The eighth explanation considers whether certain actions violate the core principles of
Section 11. This is primarily concerned with pecuniary jurisdiction. It serves as a
deterrent to unnecessary litigation. This explanation also extends to territorial
jurisdiction, emphasizing that such issues should be raised at an early stage; otherwise,
they will not be entertained.
●​ CONSTRUCTIVE RES JUDICATA
●​ Constructive res judicata is a special category of res judicata. For example, if someone is
asked why they were late and they explain that the lift wasn’t working but later add that
the car was also gone for servicing, the omission of the car issue during the first
opportunity is their fault. This is something that should have been mentioned and not kept
silent about.
●​ What “might” or “ought to have raised” is for the court to decide. If, for instance, I do not
know whether my grandfather left a will, I couldn’t have raised that point, even if I
wanted to. This is a factual test, meaning there cannot be a hard and fast rule. Sometimes,
someone may be trying to broaden the scope of the suit by keeping quiet about something
at a later stage, which may benefit them but not the court’s time and resources.
●​ The term "might" presupposes that the party involved had knowledge of the ground for
attack or defense at the time of the previous suit. In other words, they must have been
aware of the cause of action available. If they did not know, constructive res judicata
would not apply. However, determining whether the person knew or not is a complicated
issue. The test here is whether, if the issue had been raised, the decree in the former suit
would have depended on it. The court will decide based on this.
●​ For something to constitute res judicata, it has to be a ground for attack or defense. For
example, if I go to the doctor with a stomach ache, I should tell him that I got kicked in
the stomach yesterday, as this is something I ought to have mentioned. Similarly, in court

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23
 cases, if someone purposefully keeps quiet in order to raise the issue later, that is their
fault.
●​ ISSUE ESTOPPEL
●​ Issues are the fundamental building blocks of a case, like the molecules that constitute it.
As litigation progresses, issues are framed, such as whether the defendant’s act
constitutes trespass, which is an example of a legal issue.
●​ In Suit 1, there are issues A, B, C, D, and E, while in Suit 2, the issues are X, Y, Z, C, and
W. The parties involved are the same, and the only common issue between the two suits
is C. In this case, Suit 1 would create an estoppel on issue C, meaning that the decision
made on this issue in Suit 1 would have a binding effect on the subsequent case. This
principle is known as collateral estoppel, which prevents the repetition of litigation on the
same issue.
●​ The purpose of collateral estoppel is to prevent the repeated harassment of parties by
making sure that once an issue has been decided, it is not litigated again.
●​ In legal terms, a claim refers to both the relief we seek and the cause of action. When res
judicata applies, these estoppels are activated, ensuring that previously decided issues
cannot be revisited in subsequent cases.
●​ FORUM NON CONVENIENS
●​ The concept of forum non conveniens (FNC) is sometimes discussed as forum
convenience. However, FNC is not explicitly mentioned in legal manuals.
●​ Section 10 applies only within India. But what happens when a matter involves both
Indian and foreign courts? For instance, if two companies have a contract for the sale of
goods, with one company, Blue, paying Red in the US, and Blue stops the payment,
leading Red to file a case in the US for specific performance while Blue files a case for
damages in an Indian court, there arises a question of jurisdiction.
●​ In such cases, if both parties were Indian, the doctrine of sub judice would apply,
meaning the case cannot be tried in two different courts simultaneously. However, since
one of the companies is foreign and the case is being heard in the US, two approaches can
decide the matter: lis alibi pendens and forum convenience.
●​ The first approach involves applying the principles of Section 10, meaning whichever
court hears the case first will lead, and the other court will pause its proceedings until the
first court issues a decree. This principle is more common in civil law countries rather
than common law countries.
●​ The second approach is forum convenience, where both courts decide which is the most
appropriate forum to resolve the dispute, based on certain criteria.
●​ The factors considered in determining forum convenience include: physicality of the
dispute, where the parties and witnesses are located, and the procedural advantages each
court offers. In international cases, determining physicality can be challenging as the
contract might have been signed in the UK, payments made from Singapore, etc. The best
procedural advantage would consider factors like the length of time a case might take; for
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 example, a US court may recognize that an Indian court could take ten years to resolve
the matter, putting the parties at a disadvantage. Additionally, the applicable law is
considered, parties in international contracts may choose the governing law, such as
Indian law or Californian law, and this can influence the decision of which court is more
appropriate. Public policy and unconscionable contracts also play a role.
●​ Unconscionable contracts, as recognized by English law, are often not enforceable, an
example being the "Merchant of Venice" case.
●​ This multi-factor test was evident in the Bhopal tragedy case, where India sought relief in
the US courts under the Alien Tort Claims Act. The question arose whether India or the
US was the more appropriate forum.
●​ The FNC test essentially asks whether the forum is convenient to resolve the matter,
using various factors outlined above. In cases where both courts believe their jurisdiction
is superior, a deadlock can occur.
●​ To overcome this, courts use an anti-suit injunction, which is a direction issued to one
party not to proceed with litigation in the foreign court. The anti-suit injunction is not
directed at the foreign court but at the party, prohibiting them from continuing in the
foreign court. In rare cases, if both parties receive anti-suit injunctions, it can create a
deadlock, further complicating the situation. This complexity is a key challenge in
international litigation, making it both expensive and intricate.
●​ In domestic cases, the concept of forum convenience does not apply, and the provisions
of Section 10 and Section 11 of the CPC would govern.
●​ However, FNC can be invoked in writ cases if one were to file a writ in different high
courts, like the Delhi High Court and the Bombay High Court.
●​ Courts generally appreciate jurisdiction clauses in contracts. FNC originated from
admiralty law, as ships are subject to different jurisdictions at different points. The US
frequently applies FNC because they do not have Section 10 jurisdiction between states.
●​ In terms of jurisdiction clauses, there are two types: exclusive and non-exclusive. Both
are enforceable, and if a party seeks to bypass a non-exclusive jurisdiction clause, they
must provide cogent reasons. If there is an identical subject matter, concurrency of courts,
and identity of parties, Section 10 applies in domestic matters, while lis alibi pendens or
forum convenience would apply in cases involving foreign parties. If a jurisdiction clause
is present, whether exclusive or non-exclusive, it is enforceable, and there is no need to
invoke lis alibi pendens or FNC. In cases where FNC is invoked, it is enforced through
an anti-suit injunction.

Hope Plantations Ltd vs Taluk Land Board Peermade & Anr 1999 (5) SCC 590

●​ Facts: In this case, the issue revolves around the application of the doctrine of res
judicata and estoppel in judicial proceedings. Res judicata prevents the re-litigation of the
same issue or cause of action once a final decision has been made. Estoppel, closely
related to res judicata, bars parties from reasserting a claim or issue that has already been
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25
 decided. These principles apply not only in court proceedings but also before
administrative authorities. The case emphasizes that once an issue has been decided, it
cannot be re-agitated in the same suit or in subsequent suits between the same parties.
The appeal also discusses Section 105, particularly regarding appeals and orders of
remand.
●​ Issue: The issue at hand is whether a party, after a final judgment on a matter, can
re-agitate or challenge the same issue in a subsequent stage of the same suit or in a new
suit. Specifically, it concerns the application of the principles of res judicata and estoppel
and whether an order of remand can lead to the reopening of decided issues.
●​ Analysis: In cases where an issue is decided, parties are prohibited from introducing new
arguments or evidence to challenge the decision; their only option is to appeal to a higher
court. Furthermore, Section 11 codifies res judicata but does not exhaustively cover all
aspects of the doctrine. The application of res judicata also extends to administrative
authorities, as they are bound by public policy principles of justice.
●​ Section 105 deals with objections that can be raised in an appeal, including errors,
irregularities, and defects in the order. It also addresses orders of remand, stating that
once an order of remand is not appealed, it becomes final, and the correctness of the
remand cannot be disputed later. This applies to the issue decided at an earlier stage of
the case, even if it was not the subject of the appeal.
●​ Held: The court held that the principles of res judicata and estoppel apply to prevent the
relitigation of issues that have been conclusively decided in the same suit or in
subsequent suits between the same parties. This includes not only judgments in judicial
courts but also decisions made by administrative authorities. Once an issue is decided, the
party cannot re-raise it, and if the decision is unfavorable, the only remedy is to appeal to
a higher forum. The court also reinforced that the order of remand does not allow for the
re-examination of issues that have already become final in earlier stages of the litigation,
as per the provisions of Section 105 of the CPC. Here issue estoppel was applicable and
Hope could not raise the issue with cardamom.

Aspi Jal v Khusboo Rustom (2013) 4 SCC 333

●​ Facts:
●​ At the heart of this case is Hanoo Manor, an old apartment building. Aspi Jal owns
Hanoo Manor, which he rented to the respondent for Rs 355 per month. Initially, the rent
was paid by the respondent's father, but now Aspi Jal is trying to evict the tenant, the
respondent's son. The issue of eviction is complicated by the Rent Control Act, which
makes it difficult to remove tenants.
●​ To avoid the stringent provisions of the Rent Control Act, the parties engaged in "leave
and license" agreements, which are common practice in metropolitan areas and typically
last for 11 months. This strategy allows landlords to sidestep the rent control act, which is
designed to protect tenants from arbitrary eviction.
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26
●​ In 2004, Aspi Jal filed the first suit against the respondent in the Small Causes Court for
eviction, citing a bonafide requirement for the property. This suit is still pending. A
second suit was filed in the same court in 2004 on the grounds that the property was not
being used by the tenant for several years. This suit is also still pending. A third suit was
filed in 2010, again in the same court, seeking eviction based on non-user for a
continuous period of six months immediately prior to the filing of the suit. The question
arose as to whether these suits were directly and substantially the same.
●​ In the third case, the tenant filed an application under Section 10, seeking to stay the suit
until the decision in the second case was reached. The court stayed the third suit, and
Aspi Jal appealed this decision to the High Court. The HC upheld the stay order, and
against this decision, Aspi Jal filed a Special Leave Petition in the Supreme Court.
●​ Issue:
●​ The primary issue is whether the third suit is barred by Section 10, given that it involves
the same parties and similar issues to the first two suits. Specifically, the question is
whether the matter in issue in the third suit is directly and substantially the same as in the
earlier suits, thus invoking the provisions of Section 10 to stay the third suit.
●​ Analysis:
●​ Section 10 is intended to prevent the filing of parallel suits on the same issue in different
courts to avoid conflicting findings. For Section 10 to apply, the entire subject-matter of
both suits must be identical. In this case, although all three suits concern the eviction of
the tenant based on non-user of the property, the time periods for which non-user is
alleged differ in each suit.
●​ The Rent Control Act allows eviction on several grounds, including non-use, and Aspi Jal
sought eviction in all three suits based on non-use of the property for various periods.
However, the courts must determine whether the subject matter of the suits is identical. In
this case, while the ground for eviction (non-user) is the same, the period of non-use
alleged in each suit is different.
●​ Shyam Divan, the appellant's counsel, argued that even if the second suit is unsuccessful,
it would not create a res judicata in the third case because the issues are different. Harish
Salve, representing the other side, pointed out that the suit is essentially an attempt to
multiply litigation, as the underlying issue of non-use is the same across all suits.
●​ The Supreme Court further examined the issue by referring to its earlier judgments,
including Mental Health cases, and clarified that Section 10 aims to prevent the filing of
parallel suits that would result in conflicting decisions. The court emphasized that the test
for applying Section 10 is whether the decision in the first suit would operate as res
judicata in the subsequent suit.
●​ The court acknowledged that while the grounds for eviction (non-user) are the same in all
three suits, the periods of non-user alleged differ. The court ruled that even if the second
suit results in a decision, it would not create res judicata in the third suit, as the ground

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27
 for eviction is based on different time periods under the Rent Control Act. Thus, the suits
are not based on the same subject-matter in their entirety.
●​ Held:
●​ The Supreme Court held that Section 10 of the CPC does not apply to stay the third suit.
Since the subject-matter of the suits is not entirely identical, Section 10 does not bar the
third suit. Therefore, the third suit may proceed independently of the earlier suits.
●​ The court clarified that Section 10 is not merely a directive provision but a mandatory
one, requiring a stay of the subsequent suit only when the elements of Section 10 are
satisfied. So this case relied on the complete identity of the subject matter!

Daryao v State of U.P. AIR 1961 SC 1457

●​ Facts:​
The petitioners were long-time tenants of a plot of land but were displaced in July 1947
due to communal unrest. When they returned in November 1947, they discovered that the
respondents had taken unauthorized possession of the land. In 1948, the petitioners filed
eviction suits, but the respondents appealed to the Board of Revenue, which ruled in their
favor in 1954, citing the U.P. Zamindari Abolition and Land Reforms (Amendment) Act
of 1953. The petitioners then appealed to the Allahabad High Court under Article 226,
but the court upheld the validity of the amended Act, leading the petitioners to withdraw
their case on March 29, 1955. Subsequently, on March 14, 1956, the petitioners
approached the Supreme Court under Article 32, raising the same arguments they had
previously brought before the High Court.
●​ Issue:​
The primary issue was whether the petitioners’ filing of a petition under Article 32 in the
Supreme Court was barred by the principle of res judicata, as the grounds of the petition
were identical to those raised in the earlier petition before the Allahabad High Court. The
respondents contended that the petition was barred because the earlier petition had
already been dismissed and was binding on the petitioners.
●​ Analysis:​
They contended that the petitioners had already raised the same grounds in their petition
before the Allahabad High Court, and since the petitioners did not appeal that decision,
the matter should be considered settled. The petitioners, however, argued that res judicata
did not apply because the petition before the Supreme Court was filed under Article 32,
which they claimed is a fundamental right, and thus, res judicata should not bar the
Supreme Court from hearing the case.
●​ The court, however, disagreed with the petitioners’ argument. It noted that although
Article 32 grants a fundamental right, the principles of res judicata apply to prevent a
party from repeatedly raising the same issues in subsequent petitions. The court
emphasized that if a writ petition filed under Article 226 is rejected by the High Court,
that decision is binding unless altered or reversed by an appeal or other legal means. The
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28
 petitioners had not appealed the High Court’s decision, and thus, the decision stood as
final.
●​ Held:​
The Supreme Court held that the petition under Article 32 was barred by the principle of
res judicata. Res judicata, traditionally applied in civil courts, can extend beyond the
CPC, including between writ petitions. While writs are administrative and not governed
by the CPC, res judicata is a public policy rule, akin to estoppel, which applies across
various courts, including tribunals and writ courts.

State OF UP v Nawab Husain

●​ Facts:​
N, a sub-inspector of police, was dismissed for corruption by the DIG. He challenged the
dismissal, claiming he was not given sufficient time to explain himself and filed an S419
application. He initially filed a writ petition in the Allahabad High Court, which was
dismissed. Subsequently, he filed a civil suit arguing that he was appointed by the IG, but
fired by the DIG, which he claimed was not permissible under Article 311 of the
Constitution, which protects public servants from being dismissed by someone lower in
rank. The trial court dismissed his argument, stating that the DIG had the authority to fire
him. The court did not address res judicata, dismissing the case based on the substantive
merits.
●​ Issue:​
The primary issue is whether N should have raised the argument in his writ petition, and
whether the dismissal of his writ petition and the previous judgment create a situation of
constructive res judicata, barring his civil suit.
●​ Analysis:​
The case centers on constructive res judicata, which was addressed in Daryao where it
was held that res judicata can apply beyond civil courts, including writ petitions. N’s civil
case was dismissed without considering res judicata, based on the substantive merits of
his claim. The Allahabad High Court and the Supreme Court, however, focused on the
application of constructive res judicata. Explanation 4 of Section 11, which deals with res
judicata, was cited, emphasizing that a cause of action merges with the decree once a
final decision is made. This prevents the same matter from being litigated again.
Additionally, the principle of merger states that an interim order merges into the final
order, meaning the cause of action no longer exists after a decision is reached.
●​ The court also noted that constructive res judicata applies to both writs and civil suits to
avoid vexatious and repetitious litigation, often referred to as "cantankerous litigants."
The doctrine of merger was invoked here, indicating that since N failed to raise his
argument in the earlier writ, it could not be re-litigated in the civil suit.
●​ Ruling:​
The Supreme Court held that the principles of constructive res judicata applied in this
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29
 case, and N's civil suit was barred. The court concluded that the matter N sought to raise
should have been brought up in his writ petition, and having failed to do so, he could not
now pursue it in the civil suit.

Modi Entertainment v WSG Cricket (2003) 4 SCC 341

●​ Facts:​
WSG, a company incorporated in Singapore, granted Doordarshan a license to broadcast
an ICC tournament in India, in exchange for a commission from the profits earned. The
contract specified that any disputes would be resolved in the London court, with
non-exclusive jurisdiction. After the telecast began, WSG complained that the signal was
being received in the Middle East, breaching the contract. WSG warned Doordarshan that
it would cancel the license unless the issue was fixed. This led to significant advertising
revenue losses for Doordarshan. As a result, Doordarshan filed a lawsuit in the Bombay
High Court seeking damages. Meanwhile, WSG filed a suit in the London court for
commission recovery. Doordarshan then sought an anti-suit injunction in the Bombay
High Court, asking for an order to stop WSG from pursuing the case in London, arguing
that the UK court was a forum non-conveniens (inconvenient forum). The matter was
then brought before the Supreme Court.
●​ Issue:​
Should an anti-suit injunction be granted to Doordarshan against WSG’s suit in the
London court?
●​ Analysis: The dispute hinges on the interpretation of the non-exclusive jurisdiction
clause in the contract between Modi and WSG, which specifies England as the preferred
jurisdiction. Modi contended that India was the forum conveniens (the more appropriate
forum), citing the significant connection to India due to Modi's operations and the
broadcasting rights being related to Indian markets.
●​ The Supreme Court applied the doctrine of forum non conveniens (FNC), considering
whether India was the more appropriate forum for resolving the dispute. The Court also
examined the principles governing the issuance of an anti-suit injunction, which are:
○​ Personal Jurisdiction: The Indian court has jurisdiction over the parties.
○​ Prima Facie Case: Modi must show that it has a strong case and that
irreparable harm will occur if the injunction is not granted.
○​ Balance of Convenience: The court must consider whether granting the injunction
would harm Modi more than WSG, and whether it is in the interests of justice.
○​ Comity: Respect for foreign proceedings; courts should not undermine other
courts' jurisdiction, particularly when proceedings are already ongoing in a
foreign country.
○​ The Court also clarified that in cases where there is no exclusive jurisdiction
clause, the court must consider various factors to determine the most appropriate
forum for the case. If the parties had an exclusive jurisdiction clause, the Indian
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30
 court would have to respect it unless there is a "strong cause" to depart from it,
such as frustration of the contract or extraordinary circumstances.
●​ Ruling: The Supreme Court ruled that the non-exclusive jurisdiction clause did not
automatically prevent the Indian court from hearing the case. It emphasized that the
Indian court could exercise jurisdiction if it determined that India was the forum
conveniens and there was a strong cause for the matter to be decided in India. In this
case, the Court granted the anti-suit injunction, considering that Modi had a valid prima
facie case and that the balance of convenience favored them. The Court also
acknowledged the need to respect foreign proceedings, but determined that India had a
sufficient connection to the dispute to assert jurisdiction. Thus, the Court granted relief to
Modi Entertainment, allowing the proceedings in India to continue and preventing WSG
from pursuing the matter in England.
●​ The concept of non-exclusive jurisdiction refers to a contractual preference, not an
alternative jurisdiction. It does not rely on the forum conveniens (FNC) test, but instead
reflects the parties' agreement to a preferred forum, which can be deviated from only
under exceptional circumstances. The Supreme Court reinforces that if a party chooses a
forum through a non-exclusive jurisdiction clause, refusing to honor this choice would
amount to aiding a breach of contract. Additionally, if a party argues that proceeding in
the chosen forum would be vexatious, such as in cases where the forum is inconvenient
or disproportionately burdensome, they must prove this assertion. The Court emphasized
that the burden of proof lies on the party claiming vexatiousness. In this case, the Court
ultimately refused to grant an anti-suit injunction, thereby requiring the parties to proceed
in the chosen forum, in this case, England.
●​ Usage of Doctrines within Indian Jurisdiction:
●​ The doctrine of forum non-conveniens is not applicable in domestic matters under the
CPC as per Section 10. However, Indian courts can invoke this principle when dealing
with foreign forums or while exercising their writ jurisdiction under Article 226 of the
Constitution of India. In the case of Horlicks v. Heinz (2009), it was held that the doctrine
doesn’t apply to civil suits within India but may apply to cases involving foreign forums
or in the exercise of discretionary writ jurisdiction. The court clarified that refusing to
exercise jurisdiction based on the forum non-conveniens doctrine is different from
dismissing a case due to an alternative remedy not being pursued.

Indian Bank v Maharashtra State Co-Operative Marketing Federation Ltd (1985) 5 SCC 69

●​ Facts:​
The Maharashtra State Co-Operative Marketing Federation arranged an irrevocable
Letter of Credit (LC) through Indian Bank to pay for a Rice Mill. Indian Bank filed a
summary suit in the Bombay High Court to recover money from the Federation under the
LC, while the Federation filed a separate suit against the bank to recover money and
sought to stay the bank's summary suit.
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31
 ●​ Issue:​
Does the summary suit filed by the bank violate Section 10, which bars the trial of a suit
if a matter is already pending between the same parties on the same issue?
●​ Judgment:​
Section 10 prohibits the trial of a suit that is already pending. However, the term "suit" in
Section 10 should be understood in the context of the specific procedure being used. The
legislative intent behind a summary suit is to ensure swift resolution of disputes. If the
objective and nature of the proceeding do not align with the intent of Section 10, the
principle of "Res Sub Judice" will not apply. In this case, since the summary suit is a
distinct type of proceeding aimed at quick resolution, the court ruled that Section 10 does
not apply and the summary suit could proceed.

National Institute of Mental Health and Neuro Sciences v Parameshwara

●​ Facts:
●​ Parameshwara, a senior pharmacist at an institute, was accused of stealing drugs from the
institute. As a result, he was fired and directed to pay the amount of money the institute
claimed to have lost as damages. Parameshwara, dissatisfied with both his dismissal and
the demand for repayment, filed a case.
●​ The proceedings were divided into two sets: administrative proceedings, where he was
fired and asked to pay the damages, and a civil case filed by the institute in 1995, seeking
to recover the alleged losses. Simultaneously, Parameshwara filed a case in the labor
court, questioning the justification of his termination. The primary issue in the labor court
was whether his dismissal was justified, while the civil case focused on the pecuniary
loss caused by his alleged actions.
●​ Despite the civil case potentially involving criminal elements, the institute pursued it as a
civil matter, emphasizing monetary damages rather than criminal charges. The labor
court, being employee-friendly, set aside Parameshwara's termination, but the company
chose not to reinstate him. Instead, the company filed a writ petition in the Kerala High
Court (KHC), challenging the reinstatement order. The civil case continued
independently.
●​ Parameshwara filed an application under Section 10 in the civil suit, arguing that the
matter was substantially the same as the issue in the writ case, and requested the civil
case be stayed until the writ court made a decision. The City Civil Judge dismissed his
application, but the KHC stayed the civil suit, allowing the case to proceed but
prohibiting a decree from being passed. Parameshwara, dissatisfied with this order, took
the matter to the Supreme Court through a Special Leave Petition.
●​ Issue:
●​ The central issue in this case was whether Section 10 applied to stay the civil suit in light
of the ongoing writ petition and the concurrent labor court proceedings. Additionally,
there was a question of whether Section 151 could be invoked to broaden the scope of
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32
 Section 10, as Parameshwara sought to prevent the civil suit from proceeding while the
writ court decided the matter.
●​ Analysis:
●​ In his application under Section 10, Parameshwara argued that the matter in the civil suit
was substantially the same as the matter in the writ petition, thus warranting a stay of the
civil suit. The City Civil Judge dismissed the application, and the KHC issued an order
staying the suit but not permitting a decree to be passed. This order raised concerns
regarding the proper application of Section 10, as it seemed to neither follow the
procedure of Section 10 nor resolve the issue effectively.
●​ The Kerala High Court's decision led to a Special Leave Petition (SLP) to the Supreme
Court, where the issue of Section 10’s applicability was debated. The Supreme Court
noted that the object of Section 10 is to prevent parallel trials between two civil courts.
However, in this case, the labor court, which is a tribunal dealing with industrial disputes,
is not considered a civil court under Section 10. Consequently, the first element of
Section 10 was missing.
●​ Furthermore, the Court emphasized that the two proceedings were not concurrent. The
labor court could not provide the same relief as the civil court; the civil court sought to
recover pecuniary damages, while the labor court could only address the issue of
reinstatement, not monetary compensation. Therefore, there was no concurrency between
the two proceedings, further justifying the non-application of Section 10.
●​ In relation to Section 151, Parameshwara argued that it was invoked because he was not
fully convinced that Section 10 would apply. The Supreme Court referred to the
precedent set in Manohar Lal Chopra v. Rai Bahadur Rao Seth Hiralal, where it was held
that for the sake of justice, the court could not extend Section 10 to cases outside its
explicit scope. The Court also observed that if a matter is already covered by an express
provision in the CPC, such as Section 10, it must be strictly applied, and the inherent
powers under Section 151 could not be used to bypass the clear provisions of Section 10.
●​ Ruling:
●​ The Supreme Court ruled that Section 10 did not apply to the case because the
proceedings were not between two civil courts and the proceedings were not concurrent.
The labor court, being a tribunal, could not provide the same relief as the civil court.
Additionally, the invocation of Section 151 was not justified, as the court could not
extend Section 10 beyond its prescribed scope. Therefore, the civil suit could proceed,
and the writ petition could continue independently. The Supreme Court’s ruling clarified
the proper application of Section 10 and Section 151, reinforcing the principle that
express provisions of the CPC must be strictly adhered to.

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 Module 3- Institution of Suit (Orders I, II, III, IV, V)

Parties to a suit
ORDER 1

●​ In a legal dispute, the parties to a suit are the individuals or entities involved in the case,
and they appear before the court for adjudication. There are typically two main types of
parties in a suit:
●​ Plaintiff: This is the person or entity who initiates the legal action by filing a suit in the
court. The plaintiff seeks a legal remedy or relief from the court for the issue at hand. The
plaintiff has the position of a dominus Litis, he is the driver of the litigation, he has a
range of discretion about litigation and what to do about it.
●​ Defendant: This is the person or entity against whom the suit is filed. The defendant is
the party that is defending themselves against the claims made by the plaintiff.
●​ These two parties are the main participants in most civil suits, though other parties may
also be involved, such as third-party defendants, intervenors, or interested parties
depending on the case
●​ A suit begins by filing a complaint under Section 26.
●​ A pro-forma respondent is a party included in a legal case as a proper party but does not
actively participate in the proceedings. Their inclusion is typically procedural, ensuring
that all entities potentially responsible are part of the case. For instance, if a suit is filed
against the Punjab Irrigation Department, the State of Punjab may also be made a party
because it is vicariously liable for the actions of the department. In this scenario, the State
of Punjab is a pro-forma respondent, included to fulfill legal formalities and acknowledge
liability without being actively involved in the matter. The term "pro-forma" means "for
the sake of form or appearance," emphasizing that their presence is necessary for
procedural completeness rather than substantive engagement. This concept is particularly
relevant in cases involving government bodies or entities with vicarious liability.

RULE 8: REPRESENTATIVE SUIT

●​ A Representative Suit is a legal action in which one or more individuals sue or are sued
on behalf of a larger group of people who share the same interest in the matter. This type
of suit allows the court to resolve disputes that affect multiple individuals or entities with
common interests, without requiring each person to individually participate in the legal
proceedings.
●​ Characteristics of a Representative Suit:
●​ Same Interest: The individuals involved in the suit (either as plaintiffs or defendants)
must share a common interest in the subject matter of the case. This means that the
outcome of the case will affect all the parties in a similar manner.

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 ●​ Court Permission: The court must grant permission for a suit to be filed as a
representative suit. This ensures that the case is properly suited for such a legal action and
that the interests of the group are adequately represented.
●​ Notice to Interested Parties: A notice of the suit must be provided to all parties who
have an interest in the matter. This is typically done through public notifications to ensure
that everyone who may be affected by the decision is informed about the proceedings.
●​ In India, Order 1, Rule 8 governs representative suits, which are often used in class
actions or cases involving a large number of individuals with similar claims.
●​ The basic elements of a representative suit begin with the requirement that the group
must be sufficiently numerous, though no specific numerical threshold is mentioned. The
petitioner must demonstrate that individual suits would be inefficient and impractical. A
second key aspect is that the parties involved must share the same interest in the suit.
This does not imply they must have the same cause of action. For instance, individuals
affected by a factory’s operations, whether through vibrations, fumes, or chemicals, may
have different causes of action but share a common interest in addressing the factory’s
pollution. Importantly, filing a representative suit is not a matter of right; unlike other
civil suits, which are inherently accessible, a representative suit requires the leave of the
court. The court applies its judicial mind to assess whether the same interest exists among
the parties, ensuring the claim meets this essential criterion.
●​ Notice is another non-negotiable element. Public notices, typically through newspapers
with wide circulation in both vernacular and English, must be issued to inform all
interested parties. This ensures inclusivity and transparency in the suit. Unlike a typical
civil suit, a representative suit operates as a unique system, with specialized technical and
procedural requirements. Representative suits are often filed by homeowners’
associations, trade unions, or RWAs, as they deal with collective resources or interests.
Crucially, the suit cannot be settled or withdrawn without the court's leave, as the
representative acts on behalf of the wider group. If the representative acts in bad faith or
fails to protect the group’s interest, the court can appoint a replacement.
●​ A distinguishing feature of a representative suit is its binding effect. Once the decree is
issued, it applies to all members of the group represented, as outlined in Explanation 6 of
Section 11 of the CPC. This prevents members from filing subsequent suits on the same
matter, ensuring finality through res judicata. The decree's binding nature underscores the
suit's collective significance, making it distinct from individual litigation while
safeguarding the group’s interests comprehensively.

RULE 1-3: JOINDER OF PARTIES

●​ Joinder of Parties (Rule 1-3 Order 1)
●​ Refers to the inclusion of multiple parties (plaintiffs or defendants) in a single suit,
provided they have a common cause of action or interest in the litigation.

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35
●​ Joinder of Plaintiffs/Defendants: Multiple plaintiffs/defendants can be included if they
share a common interest or cause of action.
●​ Parties can be joined if:
○​ The right to relief arises from the same transaction or series of transactions.
○​ There is a common question of law or fact involved.
●​ The court has discretion to order the joinder of parties if it aids in the effective
adjudication of the suit.
●​ The court can also strike out or add parties if necessary.
●​ Misjoinder of Parties
●​ Refers to the wrong inclusion of parties in a legal suit.
●​ Misjoinder of Plaintiffs/Defendants: When someone who should not have been
included as a plaintiff/defendant is added to the suit.
●​ Effect of Misjoinder
●​ As per Order 1, Rule 9, misjoinder does not invalidate the entire suit.
●​ The court will not dismiss the suit solely due to misjoinder.
●​ The court may order corrections, such as adding or removing parties, to properly resolve
the dispute.
●​ Nonjoinder of Parties
●​ Refers to the failure to include necessary parties in a suit.
●​ Necessary Party vs. Proper Party
●​ Necessary Party: A party without whom no effective decree can be passed; their
presence is essential for adjudicating the dispute.
●​ Proper Party: A party whose presence is desirable but not essential for passing a decree;
helps avoid multiple litigations and ensures complete resolution.
●​ Effect of Non-joinder
●​ Non-joinder, especially of a necessary party, can lead to the dismissal of the suit unless
the defect is rectified, as the decree cannot be effectively executed in their absence.
●​ Order 1, Rule 9 (Misjoinder and Non-joinder)
●​ A suit will not be defeated solely because of misjoinder or non-joinder, unless it concerns
a necessary party.
●​ Order 1, Rule 10 (Addition of Parties)
●​ Allows the court to add or strike out parties if their presence is necessary for the
adjudication of the suit.
●​ In civil law, the concept of adding or removing parties can occur at any stage of the
proceedings, including after issues are settled. If a party is added or removed, pleadings
may need to be adjusted, and all parties must be given an opportunity to amend their
submissions accordingly. This principle applies equally to both plaintiffs and defendants.
Proceedings formally begin not when the trial commences but when parties are added.
Plaintiffs first join defendants, and thereafter the court has the authority to add or remove
parties under specific circumstances. If someone wishes to join a suit as a plaintiff or
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36
 defendant, they must file an application under Order 1, Rule 10(2), commonly referred to
as an impleadment application. This process grants them full participation in the suit,
provided they establish themselves as a proper or necessary party.
●​ An intervenor is another concept governed by Order 1, Rule 8(a), introduced in the 1977
amendment. Intervention allows a person or body to present an opinion or participate in
proceedings, typically concerning issues of law already inherent in the litigation.
However, intervention is not an academic exercise; it must arise from the core of the
dispute, and its scope is entirely at the court's discretion. Courts not only decide who can
intervene but also determine the extent of their participation, such as submitting
affidavits, presenting witnesses, or offering expert evidence. Importantly, the opinion of
the existing parties regarding intervention is not binding on the court. Intervenors are
independent parties whose contributions do not carry res judicata. They often bring fresh
perspectives, particularly in public interest litigation or cases involving collective
interests, helping the law evolve through such participation.
●​ While similar, Amicus Curiae and intervenors differ. An amicus assists the court on legal
points, often when counsel for a party is weak or absent. Amicus accountability lies with
the court, which may appoint them and determine their fee. Rule 10(a), also added in
1977, acts as a precursor to legal aid, allowing representation to safeguard someone’s
interest. Misjoinder or non-joinder objections under Rule 13 must be raised at the earliest
opportunity, as a decree pronounced in the absence of a necessary party could be declared
a nullity.
●​ The twin test for determining the question of a necessary party, as laid down in
Kasturi v. Iyyamperumal (2005), is:
○​ There must be a right to some relief against the party in relation to the
controversies involved in the proceedings.
○​ No effective decree can be passed in the absence of that party.
●​ Consequences of Misjoinder or Nonjoinder: Section 99

Mumbai International Airport v Regency Convention(2010) 7 SCC 417

●​ Facts:​
The Airport Authority of India (AAI) leased Mumbai Airport premises to a private
operator for the purpose of expanding the airport into a world-class facility. However, a
specific area of the premises was subject to an ongoing lawsuit between AAI and
Regency Convention Centre (RCC), with a court order prohibiting any transfer of that
area. The lease deed stated that this area would be part of the leased premises, contingent
on the court's decision. The plaintiff filed an application to be impleaded as a defendant
in the ongoing suit between AAI and RCC, arguing that its interests in developing the
airport could be directly impacted if RCC were granted relief. The application was
dismissed by the lower court, which ruled that the plaintiff was not a necessary party to
the suit. The plaintiff then appealed the decision to the Supreme Court by special leave.
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 ●​ Issue:​
Whether Mumbai International Airport can be added as a necessary or proper party to the
suit between RCC and AAI?
●​ Judgment:​
The Supreme Court held that merely being likely to acquire an interest or right in the
disputed property depending on the outcome of a case does not make a party necessary or
proper to the suit. The Court emphasized that being impleaded as a party is not a right,
but rather a matter of judicial discretion, which should be exercised with reason and
fairness. The plaintiff was not involved in the original suit between RCC and AAI and
had no connection to the matters at hand. The Court concluded that the presence of the
plaintiff was not necessary for the court to pass a decree or to achieve a complete and
effective adjudication of the issues in the suit. Therefore, the Supreme Court upheld the
decision not to implement the plaintiff as a party to the suit.

Pramod P. Shah v Ratan N Tata(2017) SCC OnLine Bom 5269

●​ Facts:​
The petitioner, claiming to be a shareholder in one of the defendant companies, sought to
file a suit against the Tata group in a representative capacity on behalf of all
non-promoter shareholders. The petitioner argued that the ousting of Cyrus Mistry as
Chairperson of Tata Sons led to a decline in the share value of Tata companies, causing
significant financial loss to non-promoter shareholders, including the petitioner.
Consequently, the petitioner applied for leave under Order I Rule 8 to sue the Tata group,
seeking damages of ₹41,000 crore and the reinstatement of Cyrus Mistry as the
Chairperson.
●​ Issue:​
Whether Pramod P. Shah can file a suit in a representative capacity against the Tata
Group?
●​ Judgment:​
The court considered whether there was a “commonality of interest” among all
non-promoter shareholders of the Tata group, which would justify allowing the petitioner
to sue on their behalf. It was held that the Tata group consists of separate entities, each
with its own Memorandum and Articles of Association, and independent boards of
directors. The ousting of Cyrus Mistry from Tata Sons, a holding company, did not result
in a common cause of action across all Tata companies, as each company had different
shareholders and different interests. Therefore, the court found no commonality of
interest that would allow the petitioner to represent all shareholders in one suit.
●​ The court further noted that if the suit proceeded, non-promoter shareholders who did not
wish for Mistry’s reinstatement would be unjustly bound by the outcome, as they could
be forced to accept a decision that they did not support. As a result, the court concluded
that individual suits would need to be filed by shareholders of each company, with each
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 suit potentially having a representative for that company’s shareholders. In the absence of
commonality of interest, the application was dismissed.

Frame of suit

ORDER 11

●​ Frame of Suit:
○​ Refers to the structuring and organization of a legal suit.
○​ Ensures the suit is properly formed for the court to effectively address the issues
raised.
○​ Dictates how parties, causes of action, and reliefs are presented to the court.
●​ Institution of Suit:
●​ Institution of a Suit refers to the formal initiation of a legal action by filing a plaint in a
competent court of law.
●​ How is a suit Instituted?
●​ A suit is instituted when the plaint (written statement of the plaintiff's claims and reliefs
sought) is filed in court.
●​ The plaint must comply with the requirements of Order VII, which governs its contents.
●​ The plaint must include:
○​ A clear statement of the cause of action.
○​ Relevant facts.
○​ Relief sought.
○​ The parties involved.
●​ Section 26: Institution of Suit
●​ Order IV Rules I and II: Requires the filing of the plaintiff in the prescribed format to
initiate the suit.

ORDER V: SUMMONS

●​ Service of Summons
●​ Refers to the process by which the court notifies the defendants that a suit has been filed
against them and requires their appearance in court.
●​ A summons is a document issued by the court, informing the defendant of the suit and
directing them to appear on a specified date.
●​ It must be served on the defendants to ensure they are aware of the legal proceedings and
can defend themselves.
●​ Procedure
●​ The court usually directs the bailiff or another officer to serve the summons.

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●​ If personal service fails, substituted service can be used (e.g., publishing in a newspaper
or affixing the summons on the defendant’s property, as per Order V, Rule 20).
●​ The objective is to ensure the defendant receives notice of the suit and has a fair
opportunity to respond.
●​ Modes of Serving Summons under Order 5 CPC
●​ Summons can be served through various methods, depending on practicality and
accessibility. The primary methods are:
●​ Actual Service:
○​ Process Servers: Court-appointed personnel deliver summons to the defendant.
○​ Courier or Electronic Means: Parties pay a fee, and the court sends summons
via courier or electronic channels like email.
○​ Dasti Service (Personal Delivery): The plaintiff personally delivers the
summons to the defendant, typically when relations are amicable, ensuring
certainty of service.
●​ Substituted Service:
○​ Used when the defendant is avoiding service or cannot be located despite
reasonable efforts. Methods include:
■​ Affixation: Summons are affixed at a conspicuous place, such as the
defendant’s front door, or on designated boards in court premises.
■​ Service via Agents: Summons can be delivered to an adult member of the
defendant’s household or authorized agents like employees or watchmen.
■​ Newspaper Publication: Summons are published in newspapers with the
largest circulation, one in English and one in the regional language. This is
a legal fiction to ensure service when other methods fail.
○​ Substituted service is typically used after attempts to serve through other modes
have failed over an extended period, usually two years.
●​ Practical Challenges and Electronic Service
●​ Summons can only be served when the defendant resides within the local jurisdiction of
the court. If the defendant resides in an inaccessible location or refuses delivery,
alternative modes are necessary. Popular methods include courier or registered post
with acknowledgement due (A/D). If service is refused, the postal authority notes it as
deemed refusal. Multiple attempts at service are often made to avoid retrial claims due to
improper service.
●​ Electronic service under Rule 9 is increasingly used. Courts allow service via email or
even social media platforms like WhatsApp. However, issues such as verifying receipt
(e.g., WhatsApp blue ticks) pose challenges. For companies, providing a valid email is
mandatory, but for individuals, it remains problematic.
●​ Specialized and International Service
●​ Certain scenarios require specialized methods:

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 ●​ For military or navy personnel: Service is routed through commanding officers or ship
captains.
●​ For international defendants: Service is governed by the Hague Convention, which
establishes a system for serving across jurisdictions. Summons are routed through central
authorities in both countries, often translated if required, and a certificate of service is
issued. However, this process can take 6-12 months.
●​ Service and Practical Difficulties
●​ Serving summons is challenging, especially when defendants relocate or in cases like
motor accidents (hit-and-run). Civil cases cannot proceed against unknown parties, unlike
criminal cases where zero FIRs allow for investigation before identifying the accused.
Proper service is crucial to ensure defendants are notified, and records must be
meticulously maintained to avoid delays, retrials, or objections on procedural grounds.

ORDER III: AGENTS AND PLEADERS

●​ Agents and Pleaders

●​ Refers to persons who represent parties in a suit, either as legal representatives or
advocates.
●​ Agents
●​ An agent is a person authorized by a party to represent them in court.
●​ Can be a general agent (with wide authority) or a specific agent (with limited authority).
●​ Order III deals with the appearance of parties by recognized agents and pleaders.
●​ Pleaders
●​ A pleader is a legally qualified advocate or lawyer authorized to represent a party in
court.
●​ Advocates have the legal right to plead before the court on behalf of their clients.
●​ Pleaders are responsible for drafting pleadings, representing parties, and making oral
submissions in court.
●​ Roles of Agents and Pleaders
●​ Agents and pleaders can appear, apply, or act in any court proceedings on behalf of the
party.
●​ They may take steps such as filing documents, making arguments, or settling disputes
through compromise.
●​ Order III, Rule 1: Allows recognized agents to appear and act on behalf of a party.
●​ Order III, Rule 4: Details the process by which a pleader is appointed, typically through a
Vakalatnama, which grants authority to a pleader to represent a party.
●​ Procedure of Submission of a Plaint
●​ Presentation: The plaintiff is presented to the court or an officer appointed by the court
(e.g., the Registry).

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 ●​ Timing: Submission is generally during working hours on a working day (timings may
vary by state).
●​ Acceptance: There is no absolute bar on place or time for acceptance.
●​ Scrutiny: The plaintiff is scrutinized by the Stamp Reporter; if defects are found, the
plaintiff, agent, or pleader must rectify them.
●​ Registration and Numbering: Once cleared, the details are entered into the Register for
Civil Suits, and the suit is assigned a number as per Rule 2.

Inbasagaran v S. Natarajan(2015) 11 SCC 12

●​ Facts
●​ The plaintiff filed a suit (O.S. No. 252 of 1986) seeking specific performance of a sale
agreement dated 19.1.1984 concerning a property. The property had been allotted to the
defendant by the Tamil Nadu Housing Board under a lease-cum-sale agreement on
4.7.1975. The defendant failed to construct a building on the land, delaying the execution
of a sale deed by the Housing Board.
●​ On 19.1.1984, the defendant agreed to sell the property to the plaintiff for ₹3,84,220/-,
accepting an advance payment of ₹1,00,000/-. The defendant promised to execute the
sale deed after receiving the sale deed from the Housing Board and upon payment of the
balance sale consideration. Meanwhile, the plaintiff constructed a building on the
property at his own expense.
●​ Later, the defendant attempted to forcibly take possession of the property, prompting the
plaintiff to file a suit (O.S. No. 445 of 1985) for a permanent injunction. Subsequently,
the plaintiff filed the specific performance suit (O.S. No. 252 of 1986) after the defendant
denied the sale agreement and threatened dispossession.
●​ The defendant claimed the sale agreement was invalid due to a prohibition in the
lease-cum-sale agreement against transferring the property. He also denied the plaintiff’s
claims about the agreement and advance payment. Additionally, the defendant argued that
the specific performance suit was barred under Order II, Rule 2 of the CPC, as the
plaintiff should have sought this relief in the earlier injunction suit.
●​ Issue
●​ Whether the second suit (O.S. No.252/1986) for specific performance is barred under
Order II, Rule 2?
●​ Order II, Rule 2 states that when a cause of action consists of a bundle of facts necessary
to get relief, the plaintiff must include all claims arising from the same cause of action in
a single suit.
●​ However, if the causes of action for two suits are different and distinct, and the evidence
required to prove them is also different, the provisions of Order II, Rule 2 do not apply.
●​ Analysis
●​ The court considered the nature of the two suits filed by the plaintiff:

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 ○​ The first suit (O.S. No.445/1985) was for permanent injunction due to the
defendant's imminent threat to dispossess the plaintiff from the property.
○​ The second suit (O.S. No.252/1986) was for specific performance based on the
sale agreement, after the defendant’s denial of the sale deed execution by the
Housing Board.
●​ The court analyzed the cause of action for both suits. The injunction suit was filed to
prevent dispossession, while the specific performance suit arose from the sale agreement
between the parties.
●​ The causes of action for the two suits were not identical; they were based on different
factual scenarios and different legal remedies. The injunction suit did not raise issues
related to the enforcement of the sale agreement but focused solely on the threat of
dispossession.
●​ The plaintiff did not relinquish any portion of his claim in the injunction suit. The cause
of action for specific performance only arose after the defendant disclosed the transfer of
the suit property by the Housing Board and denied the legal notice sent by the plaintiff.
●​ The primary case law referred to by the Supreme Court is Gurbak Singh (1964), a
constitutional bench decision, which lays down the principles for Order II Rule 2.
According to the ruling, for a second suit to be barred by the first, the following
conditions must be met:
○​ The second suit must arise from the same cause of action as the first suit.
○​ The plaintiff must seek more than one relief.
○​ The plaintiff must have omitted the second relief in the first suit without obtaining
leave from the court.
●​ The concept of cause of action refers to a bundle of rights on which the suit depends. For
the causes of action to be considered the same, they must be identical in substance. The
"direct substantial test" is applied to determine if the content of both suits is the same.
The CPC rules, being designed to ensure fairness, aim to achieve a just and substantive
outcome.
●​ In the case at hand, the causes of action in the two suits were different. The first suit dealt
with possession, while the second one was concerned with title. Since the causes of
action were distinct, possession versus title, it was concluded that they were not the same,
and hence, the second suit was not barred by the first. The ruling emphasized that it is the
substantive identity of the causes of action that matters, not the form.
●​ The issue of title was not relevant in the first suit because the Tamil Nadu party did not
possess the property or hold the title. The Court did not decide the merits of the case
between the parties but instead concluded that the second suit was not precluded by the
first. The case was therefore remanded to the High Court for further proceedings.
●​ Ruling
●​ The court concluded that Order II, Rule 2 does not apply in this case. The two suits were
based on distinct causes of action.
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Gurbux Singh v Bhooralal1964 AIR 1810: 1964 SCR (7) 831

●​ This is a 5 judge bench case

●​ Facts
●​ The plaintiff (Bhooralal) filed a suit for the recovery of possession of certain immovable
property and mesne profits, asserting that the defendant (Gurbux Singh) was in wrongful
possession of the property.
●​ The plaintiff had previously filed a suit in 1950 (C.S. 28 of 1950) where mesne profits
were claimed and decreed.
●​ The defendant contested the present suit, claiming that it was barred under Order 2, Rule
2 because the plaintiff did not seek possession in the earlier suit.
●​ Issue
●​ Whether the second suit for possession and mesne profits is barred by Order 2, Rule 2
due to the omission of the possession claim in the earlier suit.
●​ Analysis
●​ The defendant raised the plea under Order 2 Rule 2, arguing that the plaintiff had omitted
to claim possession in the earlier suit, and thus the second suit was barred.
●​ However, the defendant did not produce the pleadings from the previous suit (C.S. 28 of
1950) as evidence in the current suit. Without the earlier pleadings on record, the court
could not determine the precise cause of action in the earlier suit.
●​ The court emphasized that a plea under Order 2 Rule 2 is a technical bar and cannot be
based on assumptions or inferences. The defendant needed to demonstrate, with evidence,
that the cause of action in the earlier suit was identical to that in the current suit.
●​ The court also noted that the plaintiff could have been entitled to multiple reliefs (such as
possession and mesne profits) arising from the same cause of action, but this would
depend on the specifics of the cause of action in the earlier suit.
●​ The absence of the earlier pleadings meant the court could not verify whether the causes
of action in the two suits were the same, and whether the plaintiff had intentionally
omitted a claim for possession in the earlier suit.
●​ Held
●​ The plea under Order 2 Rule 2 could not be entertained.

Module 4- Pleadings (Orders VI, VII, VIII)

ORDER VI
●​ What is Pleading?
●​ Pleading means a plaint or written statement. It should contain the material facts briefly.
●​ Material facts are basic facts which the party pleads on. This is basic information that the
other party needs to know what the case is about and what they have to defend. In the
absence of the pleading, a party cannot lead evidence. Non-mention of a material fact
leads to non-pleading and no cause of action arises in favor of such a party.
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 ●​ A pleading should contain a statement of material facts on which the party relies but not
the evidence by which those facts are to be proved.
●​ Rule 17: Amendments shall be made as may be necessary for the purpose of determining
the real questions in controversy between the parties. However, no application for
amendment shall be allowed after the trial has commenced, unless the court comes to the
conclusion that in spite of due diligence, the party could not have raised the matter before
the commencement of trial.
●​ Remember: courts are empowered to grant amendment of pleadings in the larger interest
of doing full and complete justice to parties.
●​ Questions that can be looked into:
●​ Whether the amendment is necessary for the determination of the real question in
controversy?
●​ Is the amendment sought with bonafide intentions?
●​ Whether the amendment alters the original cause of action or substitutes the original
cause of action? (Undue influence or Fraud)
●​ Whether the proposed amendment is inconsistent / contradictory with the original
pleading?

K. Narayana Pillai v Paremswaran(2000) 1 SCC 712

●​ Facts:​
The respondent-plaintiff filed a suit against the appellant-defendant seeking a mandatory
and prohibitory injunction for eviction, alleging that the appellant was a licensee. The
appellant, in his written statement, claimed to be a lessee, not a licensee. During the trial,
the appellant sought to amend his written statement to argue that, if found to be a
licensee, the license was irrevocable under Section 60(b) of the Indian Easements Act,
1882, due to the execution of permanent works and expenses incurred. The appellant also
sought to plead that parts of the plaintiff's suit were barred by limitation. The
respondent-plaintiff opposed the amendment, arguing that it was mutually destructive and
amounted to withdrawing admissions made in the original written statement.
●​ Issue:​
The main issue was whether the appellant-defendant should be allowed to amend his
written statement to include alternative pleas that could potentially contradict his initial
stance.
●​ Analysis:​
The Court examined whether allowing the amendment would cause irreparable prejudice
to the respondent-plaintiff. It noted that amendments should be allowed to determine the
real controversies in a suit, as long as they do not introduce a new cause of action or
result in undue prejudice. The appellant's amendment sought to introduce a plea of
entitlement to the benefit of Section 60(b) of the Indian Easements Act, 1882, which did
not seem inconsistent with the original defense of being a lessee.
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 ●​ Ruling:​
The Court allowed the amendment to the extent that the appellant-defendant could
incorporate the plea of entitlement to the benefit of Section 60(b) of the Indian Easements
Act, 1882. The Court found this plea was not inconsistent or repugnant to the existing
defense.

Rajesh Kumar Aggarwal v KK Modi(2006) 4 SCC 385

●​ Facts:​
The appellants, beneficiaries of the Modipon Limited Senior Executives Welfare Trust,
filed a suit against the trustees and secretary of the Trust, alleging misappropriation of
bonus shares and dividends, particularly from shares in Godfrey Philips (India) Limited
(GPI). They sought the removal of a trustee (respondent No. 1), the sale of GPI shares,
and reinvestment of the proceeds in government bonds.
●​ During the case, the appellants sought to amend their plaint to add a request for selling
the shares and to claim that the Trust had not provided benefits to beneficiaries since
1991-92.
●​ Issue:​
The main issue was whether the appellants should be allowed to amend their plaint,
despite the High Court's ruling that the amendment introduced a new and inconsistent
case.
●​ Analysis:​
The Court found that the proposed amendments did not alter the basic structure of the suit
but were meant to address a new relief related to the same underlying facts. The Court
disagreed with the High Court's finding that the amendment introduced a new and
inconsistent case. It concluded that the amendment was in line with the original cause of
action and essential for resolving the actual dispute. The Court also clarified that, at the
stage of allowing amendments, the merits of the proposed amendments should not be
judged, but the focus should be on whether they are necessary for fair adjudication.
Additionally, the Court addressed the relevance of the amendments under Sections 60 and
61 of the Indian Trusts Act, holding that the amendments were not extraneous to the
Trust’s terms and were important for ensuring the beneficiaries received the benefits due
to them.
●​ Ruling:​
The Supreme Court allowed the appeals, set aside the High Court’s order, and permitted
the amendments to the plaintiff. The case was remanded for further proceedings
consistent with the decision, allowing the appellants to amend their plaint as requested.

ORDER VII: PLAINT

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 ●​ The contents of a complaint are governed by specific rules. Rule 1 outlines the general
requirement for a plaintiff to include the details of the claim and the relief sought.
●​ Rule 3 specifies that the plaintiff must be signed and verified by the plaintiff or their
authorized agent.
●​ Rule 6 addresses the need for the plaintiff to file a statement of facts, including the cause
of action and the grounds for seeking relief.
●​ Rules 7 and 8 detail the particulars required, including declarations, monetary reliefs,
specific performance, and costs. Additionally, interim orders such as temporary
injunctions may be sought in the plaintiff. If a plaintiff is found deficient or improper,
Rule 11 allows for its rejection by the judge. In case of rejection, the judge returning the
plaintiff must provide details such as the date of presentation, the date of return, the name
of the party presenting it, and the reasons for its return. Any party can make an
application for the return of the plaintiff, and it is important to note that the return of a
plaintiff is appealable.

Points of Return of Plaint Rejection of Plaint

Distinction

Provision Contained in Order VII Rule 10 Contained in Order VII Rule 11

Procedure Plaint is returned to be presented in the right forum Plaint is dismissed after a prima facie examination by
the court

Grounds When plaint is filed in the forum of wrong When a plaintiff does not disclose a cause of action, a
jurisdiction relief claim is undervalued and not rectified in a given
time, the claim is barred by law, the claim is
insufficiently stamped, etc.

Nature of Defect Defect relates to the wrong jurisdiction of the court Defect relates to the plaint

Legal Fresh suit on the same cause of action is not barred; Fresh suit on the same cause of action is not barred;
Consequence the same complaint may be filed again but in a however, the complaint needs to be rectified before
different forum. being filed in the same forum.

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Nature of Order Order - Deemed decree (Section 2(2)) Order - Decree

Mode of Challenge Appeal lies as an appeal against an order (Order 43 Appeal lies as an appeal against a decree. Review lies
Rule 1(a)). Review lies but revision does not lie. but revision does not lie.

Impact on Time utilized in pursuing the matter in the wrong No time period is excluded
Limitation Period court is excluded if proceeded with good faith

Order When Made A plaint may be returned at any stage of the suit A plaint is generally rejected at the preliminary stage
before going into the settlement of issues/merits of the
case

T Arivanandam v T.V. Satyapal(1977) 4 SCC 467

●​ Facts:​
The petitioner, having lost an eviction proceeding initiated by the landlord (first
respondent), pursued multiple levels of appeals and revisions, all of which were
dismissed. Despite being granted time to vacate the premises, the petitioner resorted to a
series of fraudulent and vexatious litigations to delay the eviction. He filed suits alleging
that the eviction order was obtained through fraud and collusion, seeking injunctions
against its execution. These suits were repeatedly dismissed. Undeterred, the petitioner
continued to file fresh suits and appeals, including an application for special leave to
appeal to the Supreme Court. The landlord contended that these repeated suits constituted
an abuse of the legal process, aimed solely at avoiding lawful eviction.
●​ Issue:​
Whether the petitioner's repeated and frivolous litigations constitute an abuse of the
judicial process, justifying the rejection of the plaint under Order 7 Rule 11 and the
imposition of punitive measures.
●​ Analysis:​
Repeated Abuse of Judicial Process:​
The Court observed that the petitioner, alongside his father (second respondent), had
exploited the legal system to evade eviction. Despite the eviction order being upheld
through multiple judicial levels, the petitioner continued filing frivolous suits and appeals
to prolong the eviction process. These actions were clearly intended to frustrate the
landlord’s legitimate rights and misuse the judicial machinery.
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 ●​ Lack of Merit in the Plaintiff's Claims:​
Under Order 7 Rule 11, a plaintiff must disclose a cause of action. If a meaningful
reading of the plaintiff reveals it to be meritless or lacking a clear right to sue, it is liable
for rejection. The Court found the petitioner's claims of fraud and collusion to be baseless
and devoid of merit. The petitioner failed to provide any evidence to substantiate his
allegations.
●​ Directed the trial court to promptly dismiss the petitioner's pending suit. Advised the trial
court to consider imposing compensatory costs under Section 35-A, which permits courts
to penalize vexatious and groundless claims. Strongly condemned the petitioner for
abusing the judicial process and delaying lawful eviction. The Court highlighted the
importance of deterring such behavior to preserve the integrity of the legal system.
●​ Ruling:​
Frivolous and vexatious litigations aimed at evading lawful obligations constitute an
abuse of judicial process. Courts have the authority to reject such claims under Order 7
Rule 11 and impose punitive costs under Section 35-A to deter future misuse. The Bar
and Bench must collaboratively ensure that justice is not hindered by fraudulent litigation
practices.

V. Gururaj Reddy v P. Neeradha Reddy (2015) 8 SCC 331

●​ Facts:
●​ The plaintiffs entrusted defendants Nos. 1 and 2, their close relatives, with purchasing
immovable property in Hyderabad while they were abroad. The plaintiffs provided funds
for the purchase, but the defendants fraudulently transferred the properties to others,
including defendant Nos. 3 and 4. The plaintiffs filed two separate suits for declaration of
title, possession, and cancellation of the sale deed. The court rejected the plaintiffs in both
suits, stating that they did not disclose a cause of action. The plaintiffs appealed the
rejection of the plaints.
●​ Issue:
●​ Whether both plants can be rejected for being time-barred?
●​ Analysis:
●​ Rejection of a plaintiff under Order VII Rule 11 is a drastic measure, allowing the court
to dismiss a civil action at the initial stage.
●​ The court must read the plaintiff as a whole to determine whether it discloses a cause of
action or is barred by any law.
●​ The defendants' stand in the written statement is irrelevant at this stage.
●​ In this case, the plaintiffs' claim of discovering the fraudulent transfer in 1999 was
accepted as correct. The suits were filed in July 2002, well within three years of the date
of knowledge, as required by the law.
●​ Since the plaintiffs' pleadings indicated no basis for barring the suits under the statute of
limitations, the plants should not have been rejected. Order VII Rule 11 confers a
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 stringent power on the court to reject a plaintiff, effectively terminating a civil action
before trial. This power must be exercised cautiously and sparingly.It emphasized that the
rejection of a plaint is a penal action and should not be applied with undue enthusiasm.
●​ Ruling:
●​ The court reversed the High Court's decision and directed the trial court to hear and
decide the suits on their merits.

ORDER VIII: WRITTEN STATEMENT

●​ A written statement is a formal response to the plaintiff submitted by the defendant.

●​ If there are more than one defendant, a common written statement can be filed by all of
them. It needs to be signed by all of them. However, one written statement does not bind
the other defendants.
●​ Evasive and Specific Denial:
●​ Evasive Denial: The defendant denies the contents of paragraph 2 of the plaintiff. The
defendant has always acted honestly and never intended to cause any harm to the
plaintiff.
●​ Specific Denial: The defendant specifically denies the allegation made in paragraph 2 of
the plaint that he borrowed ₹1,00,000 or any part thereof from the plaintiff on 1st January
2022, or on any day, at any place. No such loan was ever taken from the plaintiff, nor was
any agreement made to repay any such amount.
●​ Doctrine of Non-Traversal: If a party fails to specifically deny an allegation in their
pleadings, it is deemed to be admitted.
●​ If the defendant has not filed a pleading, the court can pronounce judgment on the basis
of the facts contained in the plaint.
●​ In the CPC's technical sense, pleadings refer strictly to the plaintiff and the written
statement. However, in a broader legal context, "pleadings" encompass all documents
filed before the court. A written statement is a reactive document, filed in response to the
plaintiff, allowing the defendant to address the allegations and claims made by the
plaintiff. It is essentially the defendant's opportunity to counter the narrative presented by
the plaintiff, ensuring a balanced representation of the dispute before a neutral
adjudicator.
●​ Negotiation and strategy play crucial roles in drafting a written statement. If the written
statement is entirely defensive, the defendant risks losing the upper hand, as it leaves the
plaintiff's claims unchallenged and limits the defendant's ability to set the tone of the
proceedings. This situation can create a perception of bias or prejudice against the
defendant, as the plaintiff's version of events dominates the discourse. To prevent this, a
written statement typically begins with preliminary submissions, which allow the
defendant to outline their stance and raise any initial objections or defenses proactively,
rather than merely reacting to the plaintiff’s allegations. This approach ensures a more
equitable and strategic presentation of the case.
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 ●​ SET OFF
●​ A legal defense used by the defendant in a suit, where the defendant claims that the
plaintiff owes them money. The defendant seeks to offset or reduce the plaintiff's claim
by the amount of the debt owed by the plaintiff to the defendant.
●​ In the CPC, the concept of set-off is limited to legal set-off, whereas in general legal
procedures, there are two types:
○​ legal set-off
○​ equitable set-off.
●​ A legal set-off, codified under the CPC, applies only in money suits and pertains to a
clearly defined and ascertained sum of money that is legally recoverable. For instance, if
a plaintiff claims ₹100 and the defendant proves that the plaintiff owes them ₹50 from a
related transaction, the court will only direct payment of the balance ₹50.
●​ Legal set-off can even exceed the principal amount claimed but must not exceed the
pecuniary jurisdiction of the court. Additionally, when set-off is claimed, both parties
must stand on equal footing, aligning with the principle that unnecessary multiplication
of suits should be avoided to save judicial time.
●​ A key rule for legal set-off concerns the period of limitation: as long as the suit itself is
filed before the claim's limitation period expires, set-off can be claimed even if the
written statement asserting it is filed later. This provides an exception to the usual
limitation rules, ensuring procedural fairness.
●​ In contrast, equitable set-off is not part of the CPC and operates outside its provisions. It
allows rights or claims arising from connected transactions to be set off against each
other, even if they are not strictly debts. For instance, if an insurance company sues its
agents for unpaid premiums, and the agents counterclaim for unpaid commissions, these
claims can be set off against each other. Equitable set-off focuses on the equities of the
situation rather than strict legal debts, making it a broader and more flexible mechanism.

Legal Set off Equitable Set off

· Ascertained sum of money · Unascertained sum of money
· Under Order 8 Rule 6 · Section 151
· Right · Discretion of court
· Cross-demands may or may not · Cross demands necessarily have
arise out of the same transaction to arise from the same
· Court fees required to be filed by transaction.
the Defendant · No court fees. E.g.:-Damages

●​ COUNTER- CLAIM
●​ A claim made by the defendant in response to the plaintiff's claim, which effectively
allows the defendant to initiate a counter-lawsuit against the plaintiff within the same
legal proceeding. A counter- claim is broader and more independent than a set-off and
can be for any type of claim, not just monetary.
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 ●​ For example, if the plaintiff sues for trespass and the defendant has a title dispute with the
plaintiff, both issues can be addressed in the same suit through a counterclaim instead of
filing a separate case. This makes the process more efficient. A counterclaim may be
included as part of the written statement, filed as a separate document, or even raised as a
subsequent plea, though filing it separately is generally preferred for clarity.
●​ A counterclaim includes relief clauses and attracts court fees, unlike preliminary
submissions, which are purely factual and require no fees. It operates as an offensive
measure, effectively starting a new action within the same suit. The date of the
counterclaim’s filing is treated as its initiation date, independent of the original suit's
filing date, unless the court finds the issue more suited for separate litigation under Order
1. This ensures the counterclaim does not overcomplicate the original proceedings.
●​ The principle of pleadings being binding means any issue or claim not included in the
pleadings cannot be raised later during evidence or arguments. To address omissions or
errors in pleadings, the CPC provides for amendments, which allow parties to modify
their claims or defenses with the court's permission. However, amendments become more
difficult as the case progresses, requiring the court to exercise its discretion carefully to
avoid prejudice or undue delay. While amendments are crucial for ensuring a fair trial,
they are a complex process and can lead to complications, especially when introduced at
advanced stages of litigation.
●​ Example of Counter- Claim:
○​ Plaintiff's Claim: The plaintiff sues the defendant for ₹1,00,000 for breach of
contract.
○​ Defendant's Counter- Claim: The defendant files a counter- claim asserting that
the plaintiff actually caused damages worth ₹2,00,000 by supplying defective
goods.
○​ The defendant’s counter- claim is an independent claim for damages, and it is not
limited to the same transaction or amount as the plaintiff’s claim. Both the
plaintiff’s claim and the defendant’s counter- claim will be adjudicated in the
same suit.
●​ Difference between Set-off and Counter-Claim:
●​ A set-off is limited to monetary claims arising out of the same transaction. It aims to
reduce or extinguish the plaintiff's claim.
●​ A counter- claim is broader in scope, can be for any type of relief, and may arise from
different transactions, functioning as an independent claim within the same suit.

RULE 9

●​ No pleading is allowed after the Written Statement of a defendant, except for a reply or
defense to a set-off or counterclaim by the plaintiff. However, with the court's permission,
a party may file subsequent pleadings, such as a replication or rejoinder by the plaintiff or
a sur-rejoinder by the defendant.
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 Module 5- Appearance, Examination, Discovery (Order IX, Order XIV)

APPEARANCE OF PARTIES
ORDER IX
●​ Rule 1
●​ The specific date set for the defendant to appear in court, as mentioned in the summons.
This indicates that it is mandatory for the parties involved in the case (plaintiff and
defendant) to comply. The parties must appear in court either personally or through their
lawyers (pleaders).
●​ Rule 2
●​ If the defendant does not show up, the case proceeds ex parte, meaning the court may
proceed with the case in the defendant's absence, typically ruling in favor of the plaintiff
based on the available evidence.
●​ If the plaintiff does not show up, the suit is dismissed, meaning the case is terminated due
to the plaintiff's failure to attend the court proceedings.
●​ Rule 3
●​ When neither party appears for the hearing, the court may order the suit to be dismissed.
This is not mandatory, as the judge has discretion in the matter.
●​ However, the plaintiff can file a fresh suit if the case is dismissed, as per Rule 4.
●​ Rule 6
●​ This Rule applies when only the Plaintiff appears. It is applicable only for the first
hearing.
●​ The absence of the defendant does not mean that the court will not do justice. The
plaintiff still has to prove his case, and only after proving it, will his prayers be granted.
●​ What happens when only the defendant appears? Under Rule 8, if only the defendant
appears, the court may proceed with the hearing of the case, but the plaintiff must still
prove his case for any orders to be made in his favor.
●​ Can the plaintiff file a fresh suit now? Under Rule 9, res judicata applies, meaning the
plaintiff cannot file a fresh suit on the same cause of action. However, the plaintiff may
apply for an order to set the dismissal aside.
●​ What happens if the plaintiff applies to set aside the dismissal? If the plaintiff
satisfies the court that there was sufficient cause for his non-appearance when the suit
was called for hearing, the court may set aside the dismissal and appoint a new date for
the suit to proceed, subject to terms as it deems fit (including costs).
●​ What is a sufficient cause? Sufficient cause has not been specifically defined anywhere.
It depends on the facts and circumstances of each case and is at the discretion of the
judge to determine.
●​ Ex Parte Decree- Can it be set aside? Yes, a defendant may apply to the court to set
aside an ex parte decree passed against them under Rule 13.

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●​ An ex-parte decree holds the same value as a bi-parte decree. A defendant against whom
an ex-parte decree has been passed has the following remedies: applying for setting aside
of the decree under Order 9 Rule 13, preferring an appeal under Section 96(2) or Section
115, seeking a review under Order 47 Rule 1, or filing a suit on the ground of fraud.
●​ Conditions for Setting Aside an Ex Parte Decree: The defendant may apply to the
court that passed the decree.
●​ The defendant must satisfy the court that:
○​ The summons was not duly served, or
○​ The defendant was prevented by any sufficient cause from appearing when the
suit was called for hearing.
●​ If the court is satisfied, it shall make an order to set aside the decree.
●​ The court may impose terms such as costs, payment into court, or other conditions.
●​ The court shall also appoint a day for proceeding with the suit.
●​ Elements Present:
○​ May apply
○​ Satisfies the court that the summons was not duly served
○​ Prevented by sufficient cause
○​ Costs
●​ SUFFICIENT CAUSE
○​ Late arrival of train
○​ Sickness of pleader
○​ Death of a relative
○​ Imprisonment of party
●​ So reopening of case is mandatory when sufficient cause is shown and directory when
sufficient cause is not shown.
●​ WHAT IS NOT SUFFICIENT CAUSE
○​ Negligence
○​ Counsel is busy in another court
○​ Willful abstinence
○​ Attending another suit of high valuation
●​ Procedure in Case of Multiple Plaintiffs or Defendants:Rule 10: Non-Attendance of
One or More Plaintiffs
●​ If there are multiple plaintiffs and one or more appear, the court may allow the suit to
proceed as if all plaintiffs were present.
●​ Alternatively, the court may make any order it thinks fit based on the circumstances.
●​ Rule 11: Non-Attendance of One or More Defendants
●​ If there are multiple defendants and one or more appear, the suit will proceed with the
defendants who have appeared.
●​ The court will make any order it deems appropriate concerning the defendants who did
not appear when pronouncing judgment.
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 ●​ Pre-trial proceedings play a crucial role in civil trials due to their nature, as they provide
both parties an opportunity to fully understand the strengths and weaknesses of the other
side. The objective of pre-trial is to clarify the case and, in many instances, can even lead
to the settlement of the matter before reaching trial. After the pleadings, if either party
feels the case is not sufficiently disclosed, it is vital to focus on the facts and material
facts, though not evidence at this stage. In civil procedure, a conceptual distinction is
made between facta probanda (the facts that form the basis of a party's cause of action)
and facta probantia (the facts that help establish facta probanda). Pre-trial proceedings
are primarily aimed at uncovering facta probanda, and this is where the judicial mind
comes into play, allowing the judge to exercise discretion in managing the case.
●​ Key components of pre-trial proceedings include Admission Denial, Discovery
proceedings, and Affidavits. These mechanisms are designed to help the court and the
parties identify the material facts of the case. In some instances, the judge may even
direct specific questions to the plaintiffs to clarify certain aspects. Despite their distinct
processes, the common goal of all pre-trial measures is to bring the facta probanda into
focus.
●​ When pre-trial procedures are done correctly, there is a possibility of avoiding the full
trial. Both parties will have a clear understanding of the facts and strengths of each side’s
case, which may incentivize them to settle, thus cutting off the need for prolonged
proceedings. This ensures that each party enters the trial (if it occurs) with a
comprehensive view of the case, minimizing surprises and enabling informed decisions.

ORDER XIV

●​ Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed

Upon
●​ First Hearing (Rule 1) The first hearing refers to the day when the court schedules the
parties to appear after the pleadings are complete. It is the day when the parties meet in
court for the framing of issues.
●​ What is an Issue? An issue is a material point of fact or law in a case that one party
affirms and the other denies. The resolution of the issue is the subject of the final
determination of the case.
●​ Types of Issues (Rule 1(4)): Issues are classified into two types:
○​ Issues of Fact – These relate to disputed facts in the case.
○​ Issues of Law – These pertain to legal questions involved in the case.
●​ Issues arise when a material proposition of fact or law is affirmed by one party and
denied by the other.

FRAMING OF ISSUES

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 ●​ Rule 3: The court has the authority to frame issues based on several materials. These
include allegations made under oath by the parties or their representatives, as well as
those made by their pleaders. Issues can also be framed based on allegations in the
pleadings or answers to interrogatories delivered in the suit, as well as the contents of
documents produced by either party.
●​ Rule 5: Additionally, the court has the power to amend or frame additional issues at any
time before passing a decree. This allows the court to ensure that all relevant issues,
necessary for determining the matters in controversy, are addressed. The court can also
strike out any issues that are wrongly framed or introduced. It is important to note that if
an issue is improperly framed, this does not necessarily harm the case. The issues can be
amended at any stage of the trial, or even by higher courts if needed, to ensure the fair
and just determination of the suit.
●​ The first hearing, though not defined, occurs after pleadings are complete when the Court
asks both parties to appear for the framing of issues. It marks the first day the Court
applies its mind to the case.
●​ Issues are classified as:
○​ Issues of Law (e.g., whether an oral agreement is valid in law)
○​ Issues of Fact (e.g., whether an agreement took place in January between A and
B)
○​ Mixed Issues (e.g., whether the relief under the agreement between A and B is
barred by limitation).
●​ Issues are crucial as they guide the parties on how to lead evidence, serve as the focal
points for the Court’s decision, and form the basis for appellate review. They are drawn
only from material facts (facta probanda) and are regarded as the backbone of the suit,
acting as lamp posts to enlighten parties during proceedings.

DISCOVERY

●​ Pre-trial procedures, especially discovery, make up a significant portion of the overall

proceedings, often accounting for two-thirds of the case due to their complexity and
tedious nature. Discovery itself is divided into three discrete processes: the discovery of
documents, interrogatories, and the inspection of documents.
●​ Interrogatories are a set of questions that one party can ask the other. These questions
must be approved by the judge before they can be issued, a process known as
"interrogatories in law." Both plaintiffs and defendants can file interrogatories against
each other. Moreover, interrogatories can be issued against co-plaintiffs, co-defendants,
and even third parties, though the scope of questions in the latter case is more limited and
subject to the court's discretion. If a third party is involved, they must be summoned, and
it may be necessary to seek impleadment, arguing that they are a necessary party to the
case.

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 ●​ Interrogatories can cover any matter in issue, not just directly relevant matters, but
anything connected to the issue at hand. For example, even if the plaintiff's business
practices are publicly available in their annual reports, they cannot avoid answering
questions by simply referring to those reports. However, there are exceptions to the types
of questions that can be asked. Interrogatories may be disallowed if they consist of facta
probantia (evidence supporting the claim), if the information requested is privileged, or if
the questions are deemed scandalous or not bona fide. Additionally, interrogatories may
be rejected if they are not sufficiently material at the current stage of proceedings, as they
could unnecessarily prolong the process. This approach follows the principle of judicial
economy, meaning that judges strive to avoid any actions that would unnecessarily delay
or complicate the proceedings.
●​ Certain questions are explicitly prohibited, such as those for cross-examination or
"fishing" examinations. For instance, asking irrelevant or overly personal questions, such
as "When are you getting married?", is not allowed because it would only serve to test the
other party's responses and potentially force the disclosure of unwanted information.
These types of questions go against the principles of judicial economy, as they can derail
the focus of the case and delay the trial.
●​ Lastly, interrogatories cannot be used to challenge statements made in the plaint or the
written statement in a way that would discredit them prematurely. Discrediting statements
should only occur during the evidence stage, not through interrogatories. The rules
around interrogatories provide a broad framework for what is allowed, but within this
framework, there is considerable judicial discretion to ensure that only relevant and
necessary questions are asked.

Module 6- Interim Relief

Order XVII: ADJOURNMENT

●​ Rule 1: The reason for limiting the number of adjournments is to avoid the abuse of the
process of litigation to prolong or delay it.
●​ The discretion lies with the judge to grant or deny adjournments based on valid reasons.
●​ The court may, if sufficient cause is shown, at any stage of the suit, grant time to the
parties or to any of them.
●​ Adjournments may be granted from time to time, with reasons recorded in writing.
●​ No party shall be granted more than three adjournments during the hearing of the suit.
●​ Adjournment refers to the postponement or delay of a hearing or trial to a later date. In
legal proceedings, an adjournment allows the court to temporarily halt the proceedings,
typically due to valid reasons such as the unavailability of a party, evidence, or legal
representation.

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 ●​ Adjournment can be granted at any stage if sufficient cause is shown by the requesting
party. The Court must record its reasons in writing for granting the adjournment. A party
cannot be granted more than three adjournments during the hearing of a suit, though
exceptions may be made in extreme and exceptional circumstances. The Court is also
required to make an order regarding the costs caused by the adjournment.

ORDER 38: ATTACHMENT

●​ Rule 5-13.
●​ The purpose of attachment before judgment is to prevent the defendant from obstructing
or delaying the execution of a potential decree. It applies when the court is satisfied that
the defendant, with intent to obstruct or delay execution, is about to dispose of or remove
property from the court’s jurisdiction. The court may then direct the defendant to furnish
security, produce the property, or appear and show cause why security should not be
furnished. Conditional attachment may also be ordered. If an attachment is made without
following these conditions, it is void.
●​ Attachment is ordered only if the defendant fails to show cause or furnish security within
the time fixed by the court. If the defendant later furnishes the required security or shows
cause, the court must withdraw the attachment. If the suit is dismissed, the attachment is
also withdrawn.
●​ Attachments cannot be applied to agricultural produce or immovable property by Small
Causes Courts. Attachments are to be used sparingly as an extraordinary remedy, and the
court must consider the conduct of the parties. If a defendant begins disposing of property
after the suit is filed, an inference can be drawn regarding their intent.
●​ If a property is already attached and a decree is passed in favor of the plaintiff, no fresh
attachment is required. Orders of attachment are appealable, and revisions can be filed.

ORDER 39: TEMPORARY INJUNCTIONS

●​ An injunction is a judicial remedy ordering a person to refrain from doing an act or to

perform a specific act. The law governing injunctions is outlined in Sections 36–42 of the
Specific Relief Act and Order 39, Rules 1–5, along with Section 151 of the CPC. The
Specific Relief Act supplements the CPC by providing for perpetual and mandatory
injunctions, while the CPC deals with interim and temporary injunctions.
●​ Types of Injunctions:
○​ Perpetual and Temporary
○​ Mandatory and Restrictive
○​ Ad-interim and Interim
●​ Perpetual Injunctions: A perpetual injunction is granted through a judgment that finally
disposes of the suit. As per Section 37 of the Specific Relief Act, it is issued after a full
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 hearing and on the merits of the case. Section 38 specifies circumstances under which it
can be granted, such as:
○​ When the defendant invades or threatens to invade the plaintiff’s rights or
property enjoyment.
○​ When monetary compensation would be inadequate relief.
○​ When no standard exists to ascertain the actual or potential damage, such as cases
involving pollution or noise disturbances.
●​ Mandatory Injunctions: The purpose of a mandatory injunction, governed by Section
39 of the Specific Relief Act, is to restore the original state of affairs and prevent waste.
This exceptional remedy compels the performance of certain acts to prevent further
breaches of obligations. For example, if A’s right to enter or exit a room is obstructed by
B building a wall, the court can:
○​ Permanently restrain B from building further (perpetual injunction).
○​ Order B to demolish the existing wall (mandatory injunction).
●​ The remedy seeks to enforce positive actions when necessary and is applied with caution
to prevent further harm.
●​ A temporary injunction is a provisional court order issued during a legal proceeding,
directing a party to do or refrain from doing a specific act. It is aimed at preserving the
status quo and preventing irreparable harm until the court reaches a final decision.
●​ An interim order is a temporary judicial direction issued during the pendency of a case,
covering a broad range of orders, including but not limited to injunctions, to manage the
situation until the case's resolution.
●​ Types of Interim Orders:
○​ Stay Order: Suspends judicial proceedings or enforcement of a court order
temporarily.
○​ Temporary Injunction: Prohibits or compels a party to perform a specific act.
○​ Interim Custody Order: Grants temporary custody of children in family law
cases.
○​ Interim Maintenance Order: Directs temporary financial support in matrimonial
disputes.
●​ Interim orders do not decide the substantive rights or liabilities of the parties.
●​ Examples:
○​ Temporary Injunctions - Order 39
○​ Payment in Court - Order 24
○​ Security for Costs - Order 24
○​ Attachment Before Judgment - Order 38
○​ Receiver - Order 40 Rule 1(d)
○​ Adjournments - Order 17
●​ Stay: Refers to a temporary suspension of judicial proceedings or enforcement of a court
order. It halts legal action or decree execution until further notice.
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●​ Injunction: A court order that directs a party to act or refrain from acting to prevent harm
or injustice.
●​ Difference:
●​ A stay halts judicial processes or enforcement.
●​ An injunction compels or restricts specific actions by a party.
●​ A temporary injunction remains in effect until:
○​ The disposal of the suit.
○​ A specified time.
○​ Further court orders.
●​ In case of disobedience of an injunction or breach of its terms:
○​ Under Rule 2A and 4, the court granting an injunction, or the court to which the
case is transferred, may order the attachment of the guilty person’s property or
detain the guilty person in civil prison for up to three months, unless released
earlier by the court.
○​ The attachment cannot last for more than one year. If the disobedience continues
beyond this period, the attached property may be sold, with the proceeds being
used to compensate the injured party, and any remaining balance paid to the
entitled party. An injunction order can be discharged, varied, or set aside by the
court upon application by a dissatisfied party. If a party has knowingly made a
false or misleading statement in support of a temporary injunction application or
affidavit, the court must vacate the injunction if it was granted without notice to
the opposite party, unless the court records reasons to maintain it in the interests
of justice.
●​ Difference between Attachment and Temporary Injunction
●​ Temporary Injunction (Order XXXIX, Rule 1)
○​ Granted temporarily to preserve disputed property
○​ Prevents harm to the plaintiff
○​ Applied earlier in the case
●​ Attachment Before Judgement (Order XXXVIII, Rule 5)
○​ Applicable at a later stage in the suit
○​ Used to execute the decree after the interim stage
○​ Protects monetary claims of the plaintiff
●​ Triple Test
●​ Purpose
○​ Used for granting a Temporary Injunction by courts to determine whether to issue
an injunction during the pendency of a suit, under Order XXXIX Rules 1 and 2.
●​ Conditions of the Triple Test
○​ Prima Facie Case
■​ Existence of a prima facie case as pleaded, necessitating protection of
plaintiff's rights by issuing a temporary injunction.
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 ■​ This does not mean the case is certain to succeed, but that there is a
serious question to be tried and the plaintiff has a legitimate claim.
■​ The court assesses whether there is a strong legal basis for the suit or if the
claims are frivolous.
○​ Irreparable Injury
■​ The plaintiff must show that irreparable harm or injury will be caused if
the temporary injunction is not granted.
■​ There is a clear possibility of irreparable injury to the plaintiff if the
temporary injunction is not granted.
■​ Being an equitable relief, the discretion to grant such relief will only be
exercised when the plaintiff’s conduct is free from blame and they
approach the court with clean hands.
○​ Balance of Convenience
■​ The court must determine which party would suffer more if the injunction
is either granted or refused.
■​ The court compares the relative hardship between the parties.
■​ If granting the injunction causes less harm to the defendant than the harm
the plaintiff would suffer if the injunction is denied, the court will favor
the plaintiff.
■​ The injunction is granted where the balance of convenience lies in favor of
the plaintiff.
●​ Equitable Principle
○​ Apart from the triple test, courts also follow the equitable principle: "He who
comes to equity must come with clean hands."
○​ The party seeking the injunction must act fairly and not be guilty of any
wrongdoing or bad faith related to the subject matter.
●​ An ad-interim injunction is granted without final determination of an injunction
application and remains in effect until the disposal of the application. An interim
injunction is granted upon final determination of the main application and operates until
the suit is disposed of or for a specified duration.
●​ Who may apply?​
Either party to the suit may apply.
●​ Against whom?​
An injunction can be issued only against a party to the suit and not against a third party.
●​ When an application for a temporary injunction is filed under Order 39, the court is
required to give notice to the other party. However, if the court believes that granting the
injunction would be delayed by issuing notice, it may grant an ex-parte ad-interim
injunction without notice. If an ex-parte injunction is granted, the court must record
reasons for not issuing notice and require the applicant to promptly send the order to the

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 opposing party, either by registered post or hand, along with a copy of the application,
plaintiff, and affidavit.
●​ In cases where an injunction is granted without notice to the opposing party, the court
must make an effort to dispose of the application within 30 days from the date the
injunction is granted (Rule 3A).
●​ In all other situations, the procedure is as follows:
○​ The court issues notice to the opposing party once the application for a temporary
injunction is filed.
○​ The opposing party appears on the scheduled date.
○​ Both sides argue whether the injunction should be granted.
○​ After hearing both sides, the court applies the necessary legal tests and issues a
reasoned order.

ARREST

●​ R5, 5, 6, 9
●​ Attachment Defined:
●​ Attachment involves placing property under the custody of the court, removing the
owner’s power to use or alienate it.
●​ It ensures that a decree, if passed in favor of the plaintiff, does not become ineffective
due to lack of property to satisfy the claim.
●​ The court decides the terms of attachment, which can range from total attachment to
conditional limits (e.g., restricted withdrawal amounts from a bank account).
●​ Levels of Intrusiveness:
●​ Legal remedies are ranked based on their intrusiveness:
○​ Injunction: Low intrusiveness (1).
○​ Appointment of Receiver: Moderate intrusiveness (2).
○​ Attachment and Arrest: High intrusiveness (3-4).
●​ Process and Restrictions:
●​ Attachment is governed by Order 38 and must follow its legal requirements to be valid.
●​ Certain assets are exempt from attachment under Section 60 of the CPC, such as:
○​ Women’s ornaments.
○​ Household necessities.
○​ Pensions.
○​ Agricultural tools.
●​ Ownership of the property does not transfer through attachment; it only provides
assurance that sufficient security is available to satisfy the decree.
●​ Purpose and Limits:
●​ Attachment acts as security, ensuring the plaintiff can recover their dues if the court rules
in their favor.
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 ●​ Example: If a claim is ₹10 crore but the property is worth ₹50 crore, the defendant can
provide a bank guarantee of ₹10 crore to release the property.
●​ Interim Reliefs: Attachment during a case is temporary and cannot be treated as a
permanent solution or a substitute for the final decree.
●​ Appealability and Judicial Recourse:
●​ Orders of arrest or attachment are appealable and can be reversed by higher courts.
●​ However, appellate courts are typically reluctant to interfere with trial court findings, as
trial courts are the ultimate judge of facts.
●​ Post-Decree Measures:
●​ Arrest or attachment can also be used as a final relief to execute or enforce a decree
under Order 21 of the CPC.
●​ For injunctions post-decree, the court follows the Specific Relief Act.
●​ Threshold for Reliefs:
●​ The level of evidence and record required for interim relief depends on its degree of
intrusiveness.
●​ Significance of Interim Reliefs:
●​ Interim measures stabilize the relationship between parties while a case is ongoing,
especially in lengthy proceedings.
●​ They maintain procedural balance, ensuring neither party suffers undue harm while
awaiting the final resolution.

Gujarat Bottling Company Limited v Coca-Cola(1995) 5 SCC 545

●​ Facts:
●​ In 1977, Coca-Cola exited the Indian market under government pressure. During its
absence, Coca-Cola entrusted its formula and infrastructure to associates with the intent
of reclaiming the market upon its return. In the early 1990s, Coca-Cola re-entered the
Indian market, acquiring trademarks and rights from the Parle Group, which had
monopolized the soft drink market between 1977 and 1993. The Gujarat Bottling
Company (GBC), owned by individuals linked to Parle, was one of Coca-Cola's bottlers.
A 1993 agreement between GBC and Coca-Cola contained a negative covenant
prohibiting GBC from bottling rival products without Coca-Cola’s approval.
●​ Disputes arose when Coca-Cola demanded plant upgrades to match market growth,
which GBC resisted due to funding disagreements. Subsequently, GBC transferred its
shares to entities aligned with PepsiCo, Coca-Cola's primary competitor. In response,
Coca-Cola filed Suit No. 400 of 1994 before the Bombay High Court, seeking
enforcement of the negative covenant under Section 42 of the Specific Relief Act. The
trial court granted an injunction, preventing GBC from bottling Pepsi products. Both
parties appealed, with Coca-Cola seeking broader relief and GBC challenging the
injunction.
●​ Issue:
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●​ The primary issue before the Supreme Court was the enforceability of the negative
covenant in the 1993 agreement, specifically whether GBC could be restrained from
bottling Pepsi products.
●​ Analysis:
●​ Arguments by GBC (Shanti Bhushan):
○​ The agreement was unequal, with GBC demonstrating loyalty to Coca-Cola,
while Coca-Cola maintained non-exclusivity.
○​ GBC’s plants would remain idle, leading to irreparable harm to workers and
operations.
○​ Coca-Cola’s financial losses could be compensated monetarily, while GBC’s loss
would be irreversible.
○​ GBC contended that the injunction’s terms were overly broad, prejudicing not
only GBC but also its transferees and beneficiaries.
●​ Arguments by Coca-Cola:
○​ GBC acted in bad faith by transferring shares to Pepsi-aligned entities, breaching
the negative covenant.
○​ Permitting GBC to bottle Pepsi products would harm Coca-Cola’s goodwill and
reduce its market share, particularly as Pepsi had entered the agreement with
knowledge of the covenant.
○​ GBC’s conduct demonstrated unclean hands and commercial immorality,
warranting enforcement of the injunction.
●​ Legal Principles:
○​ Negative Covenants: Under Section 42 of the Specific Relief Act, negative
covenants can be enforced by injunctions even if positive obligations in the
contract cannot be compelled.
○​ Tests for Injunctions (Para 43):
■​ Prima Facie Case: Whether the claim has legal merit.
■​ Balance of Convenience: Whether granting or refusing the injunction
causes greater hardship.
■​ Irreparable Damage: Whether harm suffered by the aggrieved party is
beyond compensation.
●​ Supreme Court Observations:
○​ The agreement’s negative covenant was enforceable. While courts cannot compel
parties to fulfill positive obligations, they can restrain them from violating
negative terms.
○​ GBC’s conduct, including the sale of shares to Pepsi, demonstrated bad faith,
justifying the injunction.
○​ The court acknowledged the broader implications for market competition, noting
that allowing GBC to bottle Pepsi would harm Coca-Cola’s market share.

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 ○​ The injunction’s terms were modified to reduce its scope, limiting its application
to GBC’s plants in Ahmedabad and Rajkot.
●​ Ruling:
●​ The Supreme Court upheld the injunction against GBC, restricting it from bottling Pepsi
products, but softened the scope of the injunction to ensure fairness.

Wander v Antox India Pvt Ltd(1990) Supp SCC 727

●​ Facts: Wander, the owner of a medicinal trademark, initially manufactured a product in

its own factory. Later, Wander entered into an agreement with Antox to manufacture the
product under Wander's trademark and sell all of the production back to Wander. As part
of this arrangement, Wander gave an undertaking to the Drug Controller that it would not
allow any other company to use its trademark, leading to Antox being granted a
manufacturing license under Wander’s registered trademark.
●​ Eventually, Wander rescinded the agreement with Antox and entered into a new
manufacturing arrangement with another company. Antox, claiming it had gained rights
to the trademark through continuous use, filed a lawsuit against Wander, seeking a
temporary injunction to prevent Wander from passing off its product as Antox's.
●​ The court framed the issue of whether Antox had a prima facie case and whether a
temporary injunction should be granted based on the balance of convenience and
comparative hardship. The Single Judge of the High Court denied the injunction, but on
appeal, the Division Bench granted it. Wander then appealed to the Supreme Court.
●​ Issue:
●​ Whether the appellate court was justified in interfering with the exercise of discretion by
the court of first instance?
●​ Judgment:
●​ The appellate court will not interfere with the exercise of discretion by the court of first
instance and substitute its own discretion, except where the discretion was exercised
arbitrarily, capriciously, or perversely, or where the court ignored settled principles of law
for granting or refusing an injunction.
●​ In this case, the appellate bench should not have interfered with the Single Judge's
discretion, as the Single Judge had passed a reasoned order after hearing the parties and
considering the necessary tests for granting an injunction, which Antox failed to fulfill.

ORDER XL: APPOINTMENT OF RECEIVERS

●​ The CPC does not have a definition of a receiver.

●​ A receiver is an impartial person appointed by the court.
●​ The receiver's role is to collect and receive rents and profits.
●​ The receiver also manages, preserves, and protects the property.
●​ These actions take place while the suit or proceedings are pending.
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●​ The appointment of a receiver is a discretionary power of the court.
●​ You can either appeal or file a revision for an order appointing a receiver.
●​ Generally, a receiver is appointed in cases where the property is not in anybody's
possession.
●​ In such cases, it is in the common interest of all parties to appoint a receiver.
●​ Definition and Role:
●​ While not explicitly defined in the CPC, a receiver is essentially a court-appointed
manager of a property.
●​ Duties include:
○​ Managing and maintaining the property.
○​ Collecting and accounting for revenue.
○​ Safeguarding the property until further court orders.
●​ Nature of Receivership:
●​ A more intrusive remedy compared to an injunction, as it directly interferes with an
individual's property rights by altering possession and management.
●​ Appointing a receiver changes the status quo by removing possession from one party and
placing it under court control.
●​ Equitable Relief:
●​ As with all equitable remedies, the party seeking a receiver must approach the court with
clean hands.
●​ The appointment is at the discretion of the court, which cannot act suo moto. There
must be a specific application or demand.
●​ Qualifications and Duties of a Receiver:
●​ Who can be a Receiver?
○​ An impartial person, often a lawyer, chartered accountant, or professional with
relevant expertise.
●​ Powers and Responsibilities:
○​ Cannot alienate or damage the property but must preserve it.
○​ Acts as a legal guardian and a delegated authority of the court.
○​ Any interference with the receiver can result in contempt of court.
●​ Duties Include:
○​ Submitting regular accounts to the court.
○​ Paying revenue or amounts collected.
○​ If negligent in duties (e.g., failing to provide accounts), the receiver can be
dismissed and held liable personally.
●​ Improvement of Property:
●​ Receivers are not to make improvements unless deemed reasonable and necessary to
preserve the property's basic value.
●​ Legal Recourse:
●​ Parties can file revisions against a receiver's actions if found unsatisfactory or improper.
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●​ The appointment of a receiver is a discretionary power of the court, and an order
appointing a receiver is appealable, with a revision also available. A receiver should not
be appointed unless there is a strong prima facie case in favor of the plaintiff. Typically,
a receiver is appointed in situations where the property in question is not in the
possession of any party, and it is in the common interest of all parties to have a neutral
party manage the property.
●​ Interim Relief is A temporary, provisional remedy or relief granted by a court during the
pendency of a legal proceeding.
●​ Ad-interim relief is granted without the other party being present and applies temporarily
before the interim stage.
●​ Interim injunction lasts until a specified point or until it is vacated/canceled by the court.
●​ Courts and Equity Principles:
●​ Originates from courts of equity, which provide discretionary reliefs based on principles
of fairness (as opposed to courts of common law).
●​ Injunctions are a hallmark of equitable relief, subject to the following principles:
○​ Discretionary Nature: Relief is not a matter of right; the court may grant it based
on circumstances.
○​ Clean Hands Doctrine: The applicant must not have acted improperly (legally or
procedurally).
○​ Shield, Not Sword: Relief should not be sought to create legal prejudice for the
other side.
○​ These principles apply equally to receivers and injunctions.
●​ Types of Injunctions (as per Specific Relief Act, Sections 30–42):
●​ Final injunctions are issued with a decree and are binding.
●​ Temporary injunctions are governed by Rules 1–5 of the CPC and require:
○​ A valid suit (injunction cannot be filed as a standalone case).
○​ A request made via affidavit or oral application.
○​ Grounds for issuance, which must be proven through evidence.
●​ Circumstances for Temporary Injunctions:
●​ Rule 1: Preventative measures to protect against potential harm (temporary version of
final injunctions).
●​ Rule 2: Injunctions to stop continuing breaches of rights (temporary form of mandatory
injunctions).
●​ Standard of Proof for Interim Relief:
●​ A factual test of the balance of convenience is applied.
●​ The applicant must demonstrate:
○​ Prima facie case: A plausible case exists on first sight.
○​ Irreparable injury: Harm that cannot be adequately remedied by damages.
○​ Balance of convenience: The benefit of granting relief outweighs the
inconvenience to the other side.
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●​ All three conditions (prima facie case, irreparable injury, and balance of convenience)
must coexist for relief to be granted.
●​ Nature of Interim Applications:
●​ Based on facts, not law, hence they do not create binding legal precedents.
●​ Precedents from one case cannot be used in another, even if circumstances are similar.
●​ However, they may invoke res judicata within the same proceedings. For instance, if an
injunction is refused under specific circumstances, it cannot be requested again under the
same conditions.
●​ Characteristics of Injunctions:
●​ Generally In Personam: Target individuals, not property, though in exceptional cases
they may affect third parties.
●​ Public Property Cases: Injunctions involving public projects (e.g., land acquisition for
highways) are heavily restricted under the 2018 amendment to the Specific Relief Act.
Injunctions cannot be granted unless special circumstances exist.
●​ Compensation for Improper Injunctions:
●​ Section 95 CPC allows compensation if an injunction is obtained on insufficient or
incorrect grounds.
●​ Section 39(2A) SRA (inserted later) also addresses relief for wrongful injunctions.
●​ Interlocutory Orders and Injunctions:
●​ Interlocutory orders, though similar to injunctions, are more intrusive.
●​ Governed under Order 39 CPC. Breaches are addressed under Section 94 read with Order
39 Rule 2A.
●​ Injunctions outside Order 39 can arise under the inherent powers of the court (Section
151 CPC).
●​ Anti-Suit Injunctions:
●​ A form of temporary injunction issued to restrain parties from proceeding with a case in
another jurisdiction while the matter is pending locally.
●​ Ad Interim Relief:
●​ Urgent protection granted before the other party is notified.
●​ Continues until the opposing party is heard, after which the court may modify or confirm
it as interim relief.
●​ Types of Interim Relief: The court has the discretion to grant one or a combination of
these reliefs based on the case's requirements:
●​ Injunctions and Receivers:
○​ Classified as equitable reliefs and governed by specific principles:
■​ Discretionary: Granted at the court's discretion, not as a right.
■​ Proportionate Use: A defensive mechanism (shield), not a tool to harm
the other party (sword).
■​ Audi Alteram Partem: Requires adherence to principles of natural
justice.
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 ■​ Clean Hands Doctrine: The party seeking relief must not have engaged
in misconduct.
●​ Temporary Injunctions under CPC:
●​ Governed by Order 39, addressing circumstances where temporary injunctions are
necessary to preserve the status quo or prevent harm until the case's resolution.
●​ Nature of Injunctions:
●​ A temporary injunction is the interim counterpart of a permanent injunction under the
Specific Relief Act (SRA).
●​ It is designed to protect the property or rights at stake during the pendency of a suit
(Order 39, Rules 1-5).
●​ Injunctions are defensive tools meant to prevent harm or injustice until the final
adjudication.
●​ Who Can Seek Injunctions:
●​ Both the plaintiff and defendant can request injunctions.
●​ They may also be issued against non-parties in exceptional circumstances, such as public
projects, where public interest must be considered.
●​ Interlocutory Orders:
●​ A form of temporary mandatory injunction under CPC, used to compel specific actions
during a case.
●​ Both temporary and interlocutory orders are injunctions, differing in their nature and
application.
●​ Consequences of Non-Compliance:
●​ Governed by Order 39 and Section 94 of CPC:
○​ Fine up to ₹50,000.
○​ Attachment of property.
○​ Civil imprisonment.
●​ Misuse or false pleadings can lead to penalties under Section 95 and possible civil
contempt proceedings (outside CPC).
●​ General Characteristics:
●​ Injunctions are intrusive orders compelling or restraining action.
●​ They are based only on pleadings and materials on record, without requiring evidence at
this stage.
●​ Arrest Before Judgment and Civil Arrest
●​ Purpose and Process:
○​ The court may order the arrest of a defendant if it is convinced, through affidavit
or other means, that the defendant is attempting to:
■​ Delay or defeat the suit by absconding from the court’s jurisdiction.
■​ Dispose of property to avoid satisfying potential decrees.
○​ Notice and Security:

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 ■​ The defendant is first issued a notice to furnish security equal to the
claim's value.
■​ If the defendant provides security or adequately defends the notice, no
arrest is made.
■​ Failure to comply may result in arrest and presentation before the court.
●​ Civil Arrest Specifics:
○​ Duration: Typically limited to two months in jail.
○​ Costs: The plaintiff must bear the costs of the defendant’s incarceration.
●​ Effectiveness and Issues:
○​ Arrest serves primarily as a pressure tactic to coerce the defendant into
compliance.
○​ Limitations:
■​ Arresting an individual does not directly assist in securing payment or
recovery of money.
■​ It may become futile if there is no property or security to claim against.
●​ Ship Arrest as an Analogy:
○​ Instead of arresting individuals, courts often seize valuable property (e.g.,
arresting a ship by confiscating the master’s keys), ensuring repayment or
compliance.
○​ This method is more effective since it provides tangible security for the plaintiff.
●​ Preferred Alternative: Attachment:
○​ Instead of civil arrest, attachment of property is more practical and ensures
financial security.
○​ By attaching assets, the court guarantees that funds or valuables are available to
satisfy a decree, avoiding the ineffectiveness of mere detention.

Module 7- Judgement, Decree, Costs, Interests, etc

JUDGMENT (ORDER 20)

●​ According to Section 2(9), a "judgment" is the statement given by the judge that outlines
the grounds for a decree or order.
●​ In the case of Surendra Singh v. State, Justice Vivian Bose described judgment as "the
final decision of the court intimated to the parties and to the world at large by formal
'pronouncement' or 'delivery' in open court." This emphasizes that a judgment is not a
secret document but a formal public declaration made in open court.
●​ A judgment follows the completion of a case hearing, and the court pronounces the
judgment after hearing arguments from all parties. Following this judgment, a decree is
issued. Section 33 states that after a case has been heard, the court shall pronounce
judgment, and a decree will follow based on that judgment.

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 ●​ The case of Balgees Begum v. Govt., explains that once a judgment is dictated and
pronounced in open court, it is valid, even if the judge dies before signing it.
●​ While small-cause courts may only need to include the points for determination and the
decision in their judgment, other courts are required to include a concise statement of the
case, points for determination, the decision, and the reasons for such a decision.
●​ As seen in Alok Kumar v. S.N. Sharma, when a judge criticizes other judges or
subordinate courts, the language used should be dignified and restrained.
●​ In A.M. Mathur v. Pramod Kumar, the Supreme Court emphasized that disparaging or
defamatory remarks must be avoided, whether regarding a party or any other individual.
●​ Additionally, in Atar Singh v. District Judge Jhansi, the Allahabad High Court ruled that
even an ex parte decree must meet the requirements of a judgment as per Order XX, Rule
4, meaning an ex parte decree without reasons is not a valid judgment.
●​ After passing the decree, the suit stands disposed of. Rights of the parties are finally
determined.

Aspect Judgment (Section 2(9)) Decree (Section 2(2))

Basis Based on facts. Based on the judgment.

Timing Made prior to the decree. Follows the judgment.

Contents Contains the facts of the case, Contains the outcome of the suit
issues involved, evidence brought and conclusively determines the
by the parties, and findings on rights of the parties regarding the
issues (based on evidence and issues in dispute.
arguments).

Inclusion of "Formal" The word "formal" is not included The word "formal" is included in
in the definition of judgment. the definition of a decree.

Effect Judgment may result in a A decree finalizes the suit,

preliminary decree, a final decree, disposing of it by determining the
or an order, but it is always final. rights of the parties.

Types No types. There are many types (preliminary,

final, partly preliminary and partly
final).

DECREE

●​ Different types of decrees include the preliminary decree, final decree, consent decree,
and ex-parte decree.
●​ A preliminary decree is one that does not completely dispose of the suit and requires
further proceedings. It determines the rights and liabilities of the parties involved, leaving
the actual result to be worked out in subsequent actions.

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●​ In contrast, a final decree completely resolves the suit, settling all issues between the
parties, with no further decisions necessary. A final decree is considered conclusive when
it completely disposes of the suit.
●​ The necessity of a decree is vital in the final outcome of the suit, as it provides clarity on
the resolution of the matter. An appeal can only be made against a decree, not a
judgment. The last paragraph of the judgment must clearly state the relief granted by the
court.
●​ every decree is appealable but not every order is appealable
●​ The contents of a decree include several important details.
●​ First, it must list the suit’s number, which identifies the case.
●​ It must also include the names, descriptions, and registered addresses of all parties
involved.
●​ The decree should specify the claims and defenses put forward by the parties in the suit.
●​ Additionally, the decree must clearly outline the relief or remedy granted to the aggrieved
party, specifying that it is a remedy and not a reward.
●​ The decree should also mention the total costs incurred in the suit, including by whom the
costs are to be paid, from what property they will be paid, and in what proportions.
●​ It must state the date on which the judgment was pronounced and the date the decree was
delivered.
●​ Finally, the judge's signature is an essential part of the decree, confirming that the
judgment has been formally issued.
●​ It cannot be based on an oral or informal order; it must cover all matters raised before the
court. If any issue is left unresolved in the decree, it may be considered defective and
open to challenge on appeal. It is critical that the decree only includes what has been
explicitly discussed in court and nothing extraneous.
●​ A preliminary decree typically resolves a preliminary issue, such as determining the
shares in a partition suit, which would create a res judicata effect unless successfully
challenged.
●​ A final decree represents the court’s ultimate resolution of the case.
●​ A deemed decree, while not inherently qualifying as a decree, is treated as such by legal
fiction, allowing for an appeal; this applies to orders like those on restitution or the
rejection of suits.
●​ A consent decree is issued when the parties reach a mutual agreement, and it binds them,
preventing future challenges or appeals.
●​ It is important to distinguish a decree from an order. An order refers to any court
directive, including those for interim relief or procedural instructions like filing a plaint
or written statement. The appeal process for orders follows a separate scheme from that
for decrees. Once a decree is passed, the party in whose favor it has been rendered (the
judgment creditor) can seek to execute the decree through the court, using the execution

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 measures prescribed in the CPC. Alternatively, the party may appeal, or seek a review or
revision of the decree.
●​ The decree may include various reliefs, such as damages, injunctions, and costs. Reliefs
stem from substantive laws like the Indian Contract Act, Land Acquisition Act, Hindu
Marriage Act, Transfer of Property Act, and others. In addition to these substantive
reliefs, a decree will often include orders for costs and interest, which are outlined in the
plaint’s relief clause.

DAMAGES

●​ In the context of damages, there are several types, including general, special, nominal,
liquidated, and punitive.
●​ General damages are those that naturally follow from a wrongful act, such as pain and
suffering in negligence cases.
●​ Special damages are specific and quantifiable losses, such as loss of employment.
●​ Nominal damages are token amounts awarded when there is legal injury but no
significant harm.
●​ Liquidated damages are predefined sums agreed upon in contracts for breaches, like a
fixed penalty per day of delay.
●​ Punitive damages, while rare in India, are designed to punish the wrongdoer and are
often associated with public wrongs, such as state misconduct or violations of
environmental law.

Satnam Singh & Ors v Surnder Kaur & Anr(2009) 2SCC 562

●​ Facts: The dispute concerns the division of a 671-square-yard property in Hyderabad

among the family members of two brothers. The first respondent is the widow of
Harikishan Singh, and the second respondent is his son. Harikishan Singh had filed a
lawsuit against the first petitioner and his son, Rajinder Singh, to determine how the
property should be divided. The petitioner argued that Harikishan Singh was entitled to
only a 1/3rd share, while Harikishan Singh claimed he should have a 1/2 share.
●​ The trial court ruled that Harikishan Singh was entitled to a 1/3rd share, another family
member (the first defendant) was entitled to a 1/3rd share, and since Defendant No. 2 had
been absent for over seven years and was presumed dead, Defendant No. 3, who claimed
to be the legal heir of Defendant No. 2, was awarded the remaining 1/3rd share.
●​ Later, the appellant requested that the Bombay Cycle Company, a business, be included
in the case to resolve the ownership and share distribution of the business among the
parties. The court agreed that this issue needed further investigation and instructed the
parties to provide evidence.
●​ The respondents filed a civil revision application, challenging the decision to include the
Bombay Cycle Company in the case after the preliminary decree had been passed. The
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 High Court reviewed the case and referred to a Supreme Court decision (Phoolchand v.
Gopal Lal) to support its judgment. The High Court ultimately overturned the trial court's
decision, ruling that new properties could not be added for partition after the preliminary
decree had been issued.
●​ Issue: Whether a property can be added to the list of properties after a preliminary decree
is passed in a partition suit.
●​ Analysis: The appellant's lawyer argued that since the main dispute was over the share in
the property, the court was obligated to decide all issues related to the property in the
preliminary decree. On the other hand, the respondent's lawyer contended that once a
preliminary decree is passed, it becomes final, and the court cannot amend it on its own
initiative.
●​ The High Court, in its judgment, emphasized the importance of Section 97 of the CPC,
which allows for an appeal against a preliminary decree but does not specifically prevent
a party from requesting an amendment to the decree. The court acknowledged that while
it does not have the power to amend a decree on its own, it can correct mistakes if a
relevant property was omitted or overlooked in the initial decree. If an issue was not
framed in the initial decree but should have been, the court can later address it by
amending the decree.
●​ In this case, the trial court recognized it had made an error by not considering the
Bombay Cycle Company in the partition suit. The trial court then took steps to correct
this mistake. The higher court found that the trial court’s decision to amend the decree
was valid, as it was necessary to rectify the error and include all relevant properties. The
previous judgment, which had denied the inclusion of the Bombay Cycle Company, was
overturned, and the appeal was allowed.
●​ Held: Section 97 of the CPC allows for an appeal against a preliminary decree and
permits a party to request amendments to the decree if mistakes or omissions are
identified. The court can correct such errors and include overlooked properties, especially
when the omission relates to issues that should have been addressed in the original
decree. The trial court’s decision to amend the decree was correct, and the appeal was
allowed. The High Court's judgment, which had overturned this decision, was set aside.

COSTS

●​ it is up to the discretion of the Court as to costs (who and how).

●​ There are four different types of costs:
●​ General Costs, Miscellaneous Costs, Compensatory Costs, and Costs for causing delay.
●​ General Costs (Section 35): The intention of this provision is to secure the expenses
incurred by a party in litigation, not for making a profit out of it or using it for punishing
a party.
●​ Miscellaneous Costs: Under Order XXA, the Court has the discretion to award costs for
specific items related to the litigation process. These include expenditures incurred for
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 giving any notice required by law before the institution of the suit or for notices
voluntarily issued by a party before the suit, even if not mandated by law. The Court may
also award costs for the typing, writing, or printing of pleadings filed by a party.
Additionally, charges for the inspection of court records for the purpose of the suit, and
expenses incurred for producing witnesses, even if not summoned through the Court, can
be included in the awarded costs. In the case of appeals, costs related to obtaining copies
of judgments and decrees that need to be filed with the appeal memorandum are also
considered. This list of items for which costs can be awarded is exhaustive, meaning no
other costs can be claimed unless specifically provided for under the law.
●​ Compensatory Costs: Section 35A deals with compensatory costs for false or vexatious
claims or defenses. It allows the Court to order the payment of costs as compensation to
the objector if, in any suit or proceedings (except for appeals or revisions), a party objects
to the claim or defense on the grounds that it is false or vexatious. If the claim or defense
is then disallowed, abandoned, or withdrawn in whole or in part, the Court, after
recording its reasons, may direct the party responsible for the false or vexatious claim or
defense to pay compensation to the objector.
●​ However, the Court cannot award compensatory costs exceeding ₹3000 or the limits of
its pecuniary jurisdiction, whichever is lower. While this is termed as "costs," it is
primarily intended as a form of punishment for parties who make frivolous or baseless
claims or defenses.
●​ The conditions for awarding such costs are: the claim or defense must be false or
vexatious, and it must be disallowed, abandoned, or withdrawn after the objection.
●​ Costs for causing delay: Section 35B addresses the issue of delays in court proceedings
and allows the Court to impose costs for causing such delays. If a party fails to take the
required step on the date fixed for the hearing or seeks an adjournment for any reason
(such as producing evidence or other grounds), the Court may, after recording its reasons,
order that the party pay costs to the other party. These costs are meant to reimburse the
other party for the expenses incurred in attending court on that date.
●​ The Court has discretion in determining the amount of costs that are "reasonably
sufficient" to cover these expenses. Importantly, the payment of such costs must be made
before the next date of the hearing. Additionally, the party who is ordered to pay the costs
must do so before they can proceed with further actions in the case.
●​ For example:
○​ The plaintiff must pay the costs before continuing with the suit.
○​ The defendant must pay the costs before continuing with their defense.
○​ This provision was introduced to deter unnecessary delays in legal proceedings
and to discourage the abuse of adjournments. The imposition of such costs can
occur regardless of the final outcome of the case and is entirely at the discretion
of the Court.

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 ●​ The object of awarding costs is to secure the expenses incurred by a party in litigation,
not to profit from or punish a party. The principle of "costs follow the event" means that
the successful party is generally awarded costs, following the "loser pays" rule. If the
court deviates from this principle, it must provide reasons. However, awarding costs is
discretionary, and the court may choose not to award costs, for instance, if it disapproves
of the conduct of the party seeking costs.
●​ Costs are an integral part of civil proceedings. The concept of costs is to indemnify the
party for the time, effort, and expenses incurred in enforcing their rights. Without the
provision for costs, litigants may be discouraged from seeking justice, especially in cases
where the costs of litigation are significant.
●​ As Charles Dickens famously illustrated in Bleak House, litigation can be an expensive
endeavor where even winning a case might result in no net gain if the costs are too high.
The scheme for awarding costs is primarily found in Section 35 of the CPC, with
additional provisions in Sections 35A and 35B for specific scenarios, such as when a
party brings vexatious claims or causes undue delay.
●​ The cost regime has several objectives. It serves to incentivize the injured party to pursue
their rights and to disincentivize the wrongdoer by imposing financial penalties for
frivolous or dilatory conduct. The court has discretion in awarding costs, and these costs
are included in the decree. In India, while the winning party typically receives costs, the
court will only award costs that are reasonable and necessary.
●​ Compensatory costs under Section 35A may be imposed if the court finds that the claim
was brought with false motives.
●​ Costs for delay can also be imposed if a party delays proceedings without good reason,
thus discouraging stalling tactics.
●​ Regarding interest, Section 34 of the CPC allows for interest on the principal sum from
the date of filing the suit to the date of the decree, and also on any amount of the decree
until it is satisfied. This ensures that the successful party is compensated for the time
taken to resolve the dispute, particularly in cases where the defendant has wrongfully
withheld the amount due.

INTERESTS

●​ Interest can be categorized into three types: Interest prior to the suit, Interest Pendente
Lite, and Interest from the date of the decree.
●​ Interest prior to suit: This refers to the interest that may be awarded for any period
before the institution of the suit. The Court has the discretion to award interest for this
period on the principal sum adjudged.
●​ Interest Pendente Lite: This type of interest applies during the pendency of the suit,
from the time the suit is filed until the date of the decree. The Court may order interest at
a reasonable rate on the principal sum, considering the specific circumstances of the case.

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●​ Interest from the date of decree: As per Section 34, when a decree is for the payment of
money, the Court may order interest on the principal sum adjudged from the date of the
suit to the date of the decree. This is in addition to any interest adjudged for any period
prior to the institution of the suit. The Court may also grant further interest at a rate not
exceeding six percent per annum, from the date of the decree to the date of payment, or to
such earlier date as the Court deems fit.

Module 8- Appeals (Sections 96-109 and 151; Orders XLI, XLIII, XLV)

●​ The right to appeal is not an inherent or fundamental right, but rather a statutory right. In
an appeal, the case moves from an inferior court to a higher court in order to test the
soundness of the original decision. An appeal can serve to reverse, modify, or dismiss the
decision of a lower court.
●​ There are two types of appeals:
○​ First Appeal(Section 96)
○​ Second Appeal (Section 100),
●​ though these are not specifically defined in the CPC. The First Appeal can be made to
any court, including the High Court, while the Second Appeal can only be made to the
High Court.
●​ The First Appeal may concern either a question of law or a question of fact, whereas the
Second Appeal is restricted to substantial questions of law.
●​ According to Section 96, an appeal from an original decree may lie from any decree
passed by a court exercising original jurisdiction, with the authorized court hearing the
appeal. The appeal can also be made from an original decree passed ex parte, though no
appeal is permitted if the decree was passed by the court with the consent of the parties
involved.
●​ The mention of appealing against a decree, rather than a judgment, is important because
an appeal always lies against a decree not a judgment.
●​ In this context, Order XLI lays out the procedure for appeals from original decrees. It
specifies that an appeal must be presented in the form of a memorandum, signed by the
appellant or their pleader and submitted to the appropriate court or officer. The
memorandum must be accompanied by a copy of the judgment. The appellant must list
the grounds of objection to the decree in a concise and distinct manner, and these grounds
must be numbered consecutively. The appellant is generally not allowed to raise new
grounds unless the court grants leave.
●​ The Appellate Court, when deciding the appeal, is not strictly limited to the grounds
listed in the memorandum of appeal, but it cannot base its decision on any additional
grounds unless the affected party has had a sufficient opportunity to contest those
grounds. If the memorandum of appeal is not prepared properly, it may be rejected or
returned for amendments. If rejected, the court must provide reasons. Once the
memorandum is accepted, the court from which the appeal originates must register the
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 appeal in the register of appeals. This means the memorandum of appeal must go back to
the court of original decree for registration.

Kunhayammed v State of Kerala2000 (3) KLT354

●​ FACTS: The Kerala Private Forests (Vesting and Assignment) Act, 1971, allowed the
government to take over private forests and assign them to farmers. A family contested
the government's claim over 1020 acres of land, and in 1982, the Forest Tribunal ruled in
their favor, stating the land wasn't vested in the government. The State of Kerala
appealed, but the High Court dismissed the appeal in December 1982. The Supreme
Court also rejected the state's Special Leave Petition in July 1983.
●​ In 1986, Kerala amended the Act, introducing Section 8C, which allowed the government
to request a review of court decisions if they believed mistakes had been made. This
provision was valid until March 31, 1987. The state used this amendment to seek a
review of the High Court's 1982 order. The family challenged the state's attempt to
reopen the case by filing a Special Leave Petition in the Supreme Court. The key issue is
whether the state's action to review a finalized decision using a retrospective amendment
is legally allowed.
●​ ISSUE:
●​ Can the High Court of Kerala review its order from December 17, 1982, even though the
Supreme Court's dismissal on July 18, 1983, has merged with and affirmed the High
Court's order?
●​ Is it possible to review the High Court’s order after it has been merged with the Supreme
Court's decision?
●​ The doctrine of merger states that when a decree or order passed by an inferior court is
set aside, modified, or confirmed by a superior court, the superior court's order is final
and binding, rendering the order of the inferior court merged with it.
●​ CONTENTIONS:
●​ Appellants' Argument: Once the Supreme Court dismissed the State of Kerala's appeal
on July 18, 1983, the earlier High Court order from December 17, 1982, merged with the
Supreme Court's decision. According to the doctrine of merger, the High Court's order no
longer exists as an independent decision, and therefore, any attempt to file a review
application in the High Court was legally unsound.
●​ Respondents' Argument: The State of Kerala argued that the High Court's original order
from December 17, 1982, was flawed. They relied on Section 8C of the Kerala Private
Forest Act, which was added in 1986, allowing the state to request a review of a High
Court order if it believed the order was based on incorrect concessions, lacked proper
authority, or was missing relevant information. The respondents contended that this legal
provision provided them the right to seek a review of the High Court's earlier decision,
despite the doctrine of merger.

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 ●​ ANALYSIS:​
The Court analyzed the application of the doctrine of merger and the nature of the
jurisdiction exercised by the Supreme Court during the dismissal of the Special Leave
Petition. The Supreme Court exercises jurisdiction in two stages:
○​ (i) granting special leave to appeal (SLP stage),
○​ (ii) hearing the appeal (post-leave stage).
●​ If the SLP is dismissed, it implies that the Supreme Court did not find sufficient grounds
to invoke its appellate jurisdiction. However, a dismissal of an SLP does not necessarily
mean that the contentions raised in the case on the merits have been rejected.
●​ Furthermore, a dismissal by a non-speaking order (without reasons) does not preclude a
party from seeking other reliefs, such as under Article 226 of the Constitution or through
review jurisdiction in the High Court.
●​ The Court clarified that the dismissal of the SLP in this case by a non-speaking order did
not merge the High Court's 1982 decision into the Supreme Court's order, and as such, the
High Court's original order remained subject to review. Additionally, the review
mechanism provided under Section 8C of the Kerala Private Forest Act, 1986, which was
retrospective, allowed the state to seek a review of the High Court's decision, provided it
met the criteria outlined in the amendment.
●​ HELD: The Court ruled that the dismissal of the SLP by the Supreme Court did not
result in the merger of the High Court's 1982 order into the Supreme Court's decision.
The dismissal was a non-speaking order and did not preclude the High Court from
exercising its review jurisdiction. Therefore, the High Court was within its rights to
review its 1982 order, and the state could seek a review under Section 8C of the Kerala
Private Forest Act, 1986. The doctrine of merger did not apply in this case, as the
dismissal of the SLP did not constitute a final appellate decision by the Supreme Court.

A Andisamy Chettiar v A Subburaj Chettiar (2015) 17 SCC 713

●​ Facts:​
Andisamy and Subburaj were the sons of Ayyappan Chettiar, who had passed away,
leaving behind a property that Andisamy had been in possession of. Andisamy filed a suit
for permanent injunction against Subburaj, claiming that in his father’s will, he had
bequeathed the property. Subburaj contested this, arguing that Andisamy had filed the
suit to avoid partition and also pointed out that their three sisters (two of whom had
passed away) were not made parties to the suit, rendering it bad for non-joinder. The
court initially examined whether Ayyappan Chettiar had executed a will in favor of
Andisamy, and whether Andisamy was entitled to a permanent injunction or any other
relief. The court ruled in favor of Subburaj, finding that Andisamy failed to prove the
existence of a will in his favor. Andisamy appealed the decision and filed for scientific
verification of his father’s signatures on the will, which the appellate court allowed.

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 Subburaj challenged this order by filing a revision petition in the High Court, which was
allowed. Andisamy then filed an appeal before the Supreme Court.
●​ Issue:​
Whether the first appellate court was right in allowing additional evidence at the
appellate stage?
●​ Analysis:​
As a general rule, evidence is only adduced before the subordinate courts, and additional
evidence is not typically allowed at the appellate stage. However, Section 107(1)(d) of
the CPC, along with Rule 27 of Order 41, provides exceptions to this general rule,
permitting the admission of additional evidence under certain circumstances. Specifically,
additional evidence may be allowed if:
○​ The court from whose decree the appeal is preferred has refused to admit
evidence that should have been admitted;
○​ The party seeking to produce additional evidence shows that despite due
diligence, the evidence was not available or could not have been produced at the
time of the original trial;
○​ The appellate court requires specific documents or witnesses to be examined to
enable it to pronounce judgment, or for any other substantial reason.
●​ Even though no application for scientific examination of the will had been moved before
the lower courts, the appellate court exercised its discretion to allow the evidence,
believing it was necessary to do justice between the parties. The test for allowing
additional evidence is whether the appellate court can adequately pronounce judgment
based on the existing materials, or if the additional evidence is required to fully resolve
the issues.
●​ Ruling:​
The Supreme Court upheld the decision of the appellate court, emphasizing that the true
test for allowing additional evidence is whether the appellate court can fairly pronounce
judgment without the new evidence. In this case, the need for scientific verification of the
will was deemed a substantial reason for admitting additional evidence, ensuring that
justice could be served by fully examining all relevant facts.

SECOND APPEAL

●​ Under Section 100, an appeal lies to the High Court from every decree passed in appeal
by any Court subordinate to the High Court, provided that the High Court is satisfied that
the case involves a substantial question of law.
●​ An appeal may also be filed under this section from an appellate decree passed ex parte.
The memorandum of appeal must clearly state the substantial question of law involved in
the case. If the High Court believes that a substantial question of law is involved, it will
formulate that question for consideration. The appeal will then be heard based on that
question, and the respondent may argue that the case does not involve such a question.
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 However, the Court has the discretion to hear the appeal on any other substantial question
of law, not formulated initially, if it is satisfied that the case involves such a question,
with reasons recorded.
●​ Section 101 clarifies that no second appeal can be filed except on the ground specified in
Section 100. Section 102 further specifies that no second appeal shall lie from any decree
where the subject matter of the original suit involves the recovery of money not
exceeding twenty-five thousand rupees. Therefore, the list of grounds for second appeal
under Section 100 is exhaustive.
●​ The limitation period for both the first and second appeals is 90 days.
●​ An appeal lies to the Supreme Court from any judgment, decree, or final order in a civil
proceeding of a High Court, subject to the provisions in Chapter IV of Part V of the
Constitution and the rules set by the Supreme Court regarding appeals from the Courts of
India. The High Court must certify that the case involves a substantial question of law of
general importance, and that, in its opinion, the question needs to be decided by the
Supreme Court. The limitation period for such an appeal is 60 days.

Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179

●​ Facts:​
Santosh filed a suit for the declaration of title, possession of property, and permanent
injunction against Purushottam, alleging that he was illegally dispossessed from the
property in 1981. Purushottam denied the allegations, claiming he had been in possession
of the property since 1940/41, and raised a plea of adverse possession. The court first
ruled in favor of Santosh, confirming his ownership but also stating that the disputed
property had been handed over to Purushottam by the State Government in 1968, and
Santosh had not taken action to dispossess him. Consequently, the court reversed the
decree. Santosh filed a second appeal to the High Court, which was dismissed summarily,
stating no substantial question of law arose. Santosh then approached the Supreme Court,
raising substantial questions of law that should have been considered by the High Court.
●​ Issue:​
Whether the High Court can entertain a second appeal in the absence of a substantial
question of law?
●​ Analysis:​
The Supreme Court reiterated that the first appellate court is the final court of fact, and
findings of fact cannot be challenged in a second appeal. A second appeal can only be
entertained if it involves a substantial question of law. A substantial question of law is
one that is debatable, has not been previously settled, and materially affects the decision
of the case. In this case, the first appellate court had reversed the findings regarding
possession and adverse possession without providing reasons. This created a substantial
question of law, which Santosh was required to state in his memorandum of appeal under
Section 100(3).
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 ●​ The High Court had dismissed the second appeal without considering these substantial
questions, which warranted further examination.
●​ Ruling:​
The Supreme Court allowed Santosh’s appeal and remitted the case to the High Court for
hearing and deciding the second appeal afresh. It was clarified that the High Court should
not be influenced by the observations of the Supreme Court and that the framing of the
substantial question of law by the Court would not limit the High Court’s ability to
formulate any other question of law it deems necessary under Section 100(5). The case
was sent back for proper consideration without any opinion on the merits of the case.

.Module 9- Reference, review, revision (Sections 113-115; Orders XLVI, XLVII)

REFERENCE

●​ A reference is a process by which a subordinate court refers a matter or question of law to

a higher court for guidance or clarification. This is generally used in situations where
there is a significant question of law that requires interpretation or has not been
previously decided.
●​ Section 113 and Order XLVI Rules 1-6 empower a subordinate court to refer a case to the
High Court for its opinion when a question of law arises during a suit, appeal, or
execution, and the court has doubts about its interpretation. The High Court may provide
an opinion and make orders as it deems fit. The object of reference is to help subordinate
courts avoid irreparable errors in non-appealable cases, clarify questions of law, and
ensure that legislative provisions' validity is determined by the highest court in the state.
References must be made before the judgment is passed.
●​ The conditions for making a reference include a pending suit, appeal, or proceeding
where the decree is not subject to appeal, a question of law or usage with the force of law
arising in the matter, and the court having reasonable doubt on such a question.
●​ Questions of law are divided into two categories:
○​ those relating to the validity of Acts, Ordinances, or Regulations,
○​ and other legal questions.
●​ A reference is mandatory for validity issues if the decision is essential, the subordinate
court considers the provision ultra vires, and no higher court has ruled on it. For other
legal questions, making a reference is optional.
●​ Only courts of civil judicature can make a reference, either suo motu or on a party's
application. Tribunals or designated persons cannot make a reference. References must
involve actual, not hypothetical, questions, and the matter must be pending before the
court. The High Court’s jurisdiction in references is consultative. It may refuse or quash a
reference but cannot decide on the case's merits.
●​ The referring court drafts a statement of facts, the legal question, and its opinion.
Proceedings may be stayed or continued pending the High Court's opinion. The court
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 may pass a contingent decree based on the High Court's answer. An order refusing to
make a reference is revisable.

REVIEW

●​ Review is the process by which a court re-examines its own order or judgment, typically
to correct an error or oversight. This is aimed at correcting mistakes or addressing
grievances that arise from a judgment or order already delivered. The grounds for review
are limited and must meet the criteria outlined in Order XLVII.
●​ The applicant must demonstrate:
○​ that there is an error apparent on the face of the record.
○​ The review is necessary to correct such errors.
○​ The review is sought within the prescribed time frame (usually 30 days from the
date of the order).
●​ A review cannot be filed if an appeal has already been filed. However, if a review is filed,
an appeal may still be filed later. In such a situation, the jurisdiction of the court to deal
with the review application is not affected. This does not lead to a duplication of
proceedings because the limitation period for a review is 30 days. If a review is filed,
there is typically a stay on the appeal until the review is heard.
●​ Review is an exception to the general rule that once a judgment is signed and
pronounced, the court becomes functus officio and cannot alter it.
●​ Section 114 and Order XLVII allow review as a substantive right for correcting glaring
omissions, patent mistakes, or grave errors to prevent injustice. Review is a judicial
re-examination of the case by the same court and judge.
●​ Any aggrieved person may apply for a review, but the court cannot exercise this power
suo motu.
●​ Circumstances for review include decrees or orders where no appeal lies or where an
appeal is available but not preferred.
●​ Grounds for review are:
○​ Discovery of new evidence: Evidence must pass the due diligence test and be
relevant enough to potentially alter the judgment.
○​ Error apparent on the face of the record: Errors must be self-evident without
requiring detailed argument or examination.
○​ Other sufficient reasons: These must align with reasons analogous to those
specified, such as incorrect statements in a judgment or orders made under
misapprehensions.
●​ Negligence, failure to raise a plea, or differing views of law are not valid grounds for
review. While the same judge usually reviews the matter, if unavailable, the successor or
another judge with concurrent jurisdiction may decide the application. Decisions on
review applications are considered "cases decided" and are appealable.

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REVISION

●​ Revision is the power of a higher court to review the decisions or proceedings of a lower
court. It is primarily used to ensure that justice is administered properly and that the law
has been applied correctly.
●​ Section 115 gives the High Court revisional jurisdiction to examine cases decided by
subordinate courts under specific conditions. Revision involves reviewing a subordinate
court’s order for errors of jurisdiction or procedural irregularity. A person aggrieved by
such an order may apply for revision, or the High Court may act suo motu. The object is
to prevent subordinate courts from acting arbitrarily or beyond their jurisdiction and
ensure proceedings align with the law.
●​ Revisional jurisdiction applies when:
○​ A case is decided by a subordinate court.
○​ No appeal lies against the order.
○​ Cant have revision against interim order.
○​ The subordinate court:
■​ Exercised jurisdiction not vested by law.
■​ Failed to exercise jurisdiction.
■​ Acted illegally or irregularly in exercising jurisdiction.
●​ Errors must be jurisdictional; mere legal or factual errors unrelated to jurisdiction are not
revisable. Examples include a court assuming jurisdiction it does not possess or failing to
exercise jurisdiction vested in it. Procedural errors, such as deciding without proper
evidence or ignoring legal principles, may also be revised.
●​ Revisional power is discretionary and cannot be demanded as a right. It is limited by a
90-day timeframe and is restricted post-1999 amendment to cases where the order
impacts the final disposal of proceedings. Revision focuses on jurisdictional errors,
distinguishing it from appeal (which examines both law and fact) and review
(reconsideration of the same court’s decision).

Aspect Reference Review Revision

Nature Involves seeking guidance Involves re-evaluating Pertains to the higher

from a higher court. one’s own judgment. court's assessment of
lower court proceedings.

Authority Initiated by the lower Requested by a party to Undertaken by the higher

court/ suo moto the case, can't be suo court on its initiative or
moto upon application.

Scope Deals with questions of Focuses on correcting Focus on jurisdictional

law. errors errors/ errors in ruling of
lower courts.

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Municipal Corporation of City v Shiv Shankar Gauri Shankar Mehta (1998) 9 SCC 197

●​ Facts​
The Bombay Municipal Corporation (BMC) attempted to enforce a roadline by sending
public notices to landowners, but not to tenants. Several tenants filed cases against BMC,
arguing that this was unfair. The Civil Judge referred the case to the High Court, noting
that the term "owner" under the law didn't include tenants, which could violate Article 14
of the Constitution. The Civil Judge said if the High Court accepted the reference, the
notices would be illegal; if rejected, the suits would be dismissed.
●​ The High Court rejected the reference, citing a previous ruling, and as a result, the suits
were automatically dismissed. The tenants appealed this decision to the Supreme Court.
●​ Issue​
The issue was whether the High Court's rejection of the reference under Section 113 and
Order 46 was correct.
●​ Analysis​
The Supreme Court found that the plaintiffs (tenants) had sought leave to appeal under
Article 133, which was denied. Since they didn’t challenge the High Court's decision
with special leave petitions, the High Court's rejection of the reference became final. This
led to the automatic dismissal of the suits.
●​ The Court concluded that once the High Court rejected the reference, the suits were
dismissed, and the challenge to the notices was also rejected. The High Court's
observations about the legality of the notices were irrelevant and didn’t affect the case
outcome.
●​ Ruling​
The Supreme Court ruled that the High Court's observations were unnecessary and had
no legal effect on the case. Since the suits were dismissed due to the rejection of the
reference, the challenge to the High Court's observations was not relevant. The appeals
were disposed of accordingly.

Module 10- Execution of the Decree/Order (Sections 36-74, Order XXI)

●​ The Decree Holder is the individual in whose favor the decree has been passed, while
the Judgment Debtor is the individual against whom the decree has been passed.
●​ According to Section 51, the Court has powers to enforce the execution of a decree based
on the decree-holder's application.
●​ If the decree involves the payment of money, execution by detention in prison will only
be allowed after the judgment-debtor is given an opportunity to show cause, and the
Court is satisfied with the reasons provided.
●​ A decree may be executed by the Court that passed it or by the Court to which it is sent
for execution. If the decree is to be sent for execution to another Court, the original Court
must send it directly to the other Court, whether or not it is in the same state.
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●​ If the second Court has no jurisdiction to execute the decree, it must send it to the
appropriate Court. The Court sending the decree will also provide a copy of the decree, a
certificate confirming whether satisfaction of the decree has been obtained, and a copy of
any order for execution, or a certificate stating that no such order has been made.
●​ Order 21 outlines the different types of execution: delivery of property, attachment and
sale, arrest and detention in civil prison, attachment of salary, and the appointment of a
receiver, among others.
●​ For example, under Rule 11, the Court can order immediate execution of a decree for the
payment of money by arresting the judgment-debtor if they are present in the Court at the
time of passing the decree. If not, the application for execution must be in writing,
detailing the mode of execution required.
●​ Under Rule 30, a decree for the payment of money can be executed by the detention of
the judgment-debtor in civil prison, attachment and sale of their property, or both. Rule
31 details the execution of decrees for specific movable property, which may involve
seizure and delivery of the property or detention of the judgment-debtor in civil prison, or
the attachment of property.
●​ For immovable property under Rule 35, possession must be delivered to the party to
whom it has been adjudged. If necessary, the Court may remove any person who refuses
to vacate the property.
●​ As for the attachment of property under Rule 41, the decree-holder may apply to the
Court for an order to examine the judgment-debtor about their property or any debts they
owe. The Court may order the attendance of the judgment-debtor or any officer of a
corporate judgment-debtor for this examination, and may require the production of books
or documents.
●​ Lastly, Rule 54 addresses the attachment of immovable property. The attachment is made
by an order that prohibits the judgment-debtor from transferring or charging the property
and prohibits others from benefiting from such a transfer. The order must be publicly
proclaimed at the property, at the Court-house, and, where applicable, in the office of the
Collector or the Gram Panchayat, ensuring public notice of the attachment.
●​ The executing court can attach property, sell a sufficient portion through public auction,
and use the proceeds to satisfy the decree. The sale should cover only the necessary
portion of the property to avoid excessive execution. The court determines whether the
entire property or part of it should be sold.
●​ The sale must be conducted publicly by a court officer or an appointed individual,
following a court-issued proclamation. The Decree Holder can request the sale. Notices
must be served on both the Judgment Debtor and Decree Holder. Failure to notify the JD
renders the sale void. After hearing both parties and examining evidence, the court settles
the Sale Proclamation, which the judge signs, fixing the sale's time, date, and place.
●​ The DH must cover sale expenses and proclamation fees within a week, failing which the
petition may be dismissed. The proclamation is announced through customary methods
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 like drumbeat and affixed at prominent locations, including the property, courthouse,
district collector’s office, and gram panchayat. It may also be published in the Official
Gazette or a local newspaper if directed by the court.

Harnandrai Badridas v Debidutt Bhagwati Prasad1973 AIR 2423 : 1974 SCR (1) 210 : (1973)
2 SCC 469

●​ Facts:
●​ In 1956, Debidutt Bhagwati Prasad won a court case and was owed money by Harnandrai
Badridas. To recover the money, the court appointed a receiver to sell two properties
owned by Harnandrai. In 1958, one of the properties (128 Cotton Street, Calcutta) was
auctioned, and Kanta Prosad Chotaria bought it for Rs. 52,000. He paid Rs. 13,000
initially. The sale completion was delayed, but by June 1964, Kanta Prosad paid the full
amount. When Kanta Prosad requested possession, the original owners refused to leave.
He asked the court to help him get possession. The court ruled in his favor, ordering the
owners to vacate. The owners appealed, arguing he should file a new lawsuit to get
possession.
●​ Issue:
●​ Should Kanta Prosad (auction purchaser and decree-holder) get possession through the
same execution proceedings, or does he need to file a separate lawsuit?
●​ Contentions:
●​ Owners' Argument: Once the auction is complete, the execution is over. To get
possession, Kanta Prosad must file a new case.
●​ Kanta Prosad’s Argument: Since the auction was part of executing the decree,
possession should also be handled by the executing court without a separate lawsuit.
●​ Analysis:
●​ The Court considered the relationship between the execution of a decree and the process
of obtaining possession of property following an auction. It recognized that while the sale
of property through auction satisfies the financial aspect of a decree, the delivery of
possession is a necessary part of completing the execution of the decree. This process
ensures that the auction purchaser, who is also the decree-holder, obtains full satisfaction
of the decree, including possession of the property.
●​ The Court referred to Order XXI, Rule 95, which provides that the executing court has
jurisdiction to handle issues related to possession following an auction sale. The Court
emphasized that the executing court should be the forum for resolving any disputes
related to possession, as this is directly connected to the decree's execution. It also
highlighted the importance of a liberal interpretation of Section 47 to avoid unnecessary
delays and complications by keeping all issues related to the execution of the decree
within the same proceeding.
●​ Ruling:

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●​ The Court ruled that obtaining possession of the property is an integral part of the
execution, discharge, and satisfaction of the decree. Therefore, the executing court retains
the authority to address possession-related issues. The appeal was dismissed, and the
original order requiring the judgment-debtor to deliver possession to the auction
purchaser was upheld. The Supreme Court affirmed that the execution process extends
beyond the sale and conveyance of property to include the delivery of possession,
allowing the executing court to handle all matters related to the decree's execution,
including possession disputes.

Module 11- Law of Limitation

●​ The Limitation Act, 1963 establishes a clear timeframe within which legal rights can be
enforced in court, ensuring that claims are pursued promptly and evidence is not lost over
time.
●​ Its underlying philosophy is based on two legal maxims: Interest reipublicae ut sit finis
litium (the interest of the state requires that there should be an end to litigation) and
Vigilantibus non dormientibus jura subveniunt (the law assists the vigilant, not those who
sleep over their rights).
●​ The Act applies to civil proceedings in civil courts, barring judicial remedies for delayed
claims but not extinguishing the underlying rights. It does not extend to criminal
proceedings, tribunals, or writ petitions.
●​ Courts must ensure compliance with limitation periods as a duty under Section 3, and the
limitation period generally starts when the right to sue accrues.
●​ Certain exceptions to this rule include legal disability under Sections 6 and 7, where the
limitation period begins after the disability ceases for minors or individuals who are
insane or otherwise incapacitated at the time of reckoning. However, subsequent
disabilities do not interrupt the running limitation period, as per Section 9.
●​ Suspension of limitation occurs if a court is closed on the last day of the period (Section
4), while extension applies in appeals and applications if the appellant demonstrates
sufficient cause for delay, subject to judicial discretion (Section 5).
●​ The Act also provides for exclusion of time under Sections 12 to 15. This includes the
day when the limitation period begins, time taken to obtain a copy of the judgment or
decree, periods spent in bona fide proceedings in courts without jurisdiction, and periods
covered by stay orders or injunctions. Additional exclusions are allowed for periods
involving receivers or liquidators, obtaining notices or sanctions required by law, or when
the defendant is outside India.
●​ Postponement of limitation occurs in specific cases under Sections 16 to 23. For instance,
the period does not begin until there is a person eligible to sue or be sued, and in cases of
fraud or mistake, limitation starts only upon discovery of the fraud or mistake. Written
acknowledgment of rights or liabilities triggers a fresh limitation period, as does part
payment of debts. If new parties are added to a suit due to bona fide mistakes, the suit
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 may be treated as instituted against them from an earlier date. Continuing breaches of
contract or tort trigger fresh limitation periods with each occurrence, while in cases of
injuries actionable only with special damages, limitation begins when the injury results.
●​ Commonly prescribed limitation periods include 3 years for contractual matters and
movable property disputes, 1 year for defamation, and specific timelines for appeals: 90
days for criminal appeals, 90 days for civil appeals to the High Court, and 30 days for
civil appeals to lower courts. Special Leave Petitions must be filed within 90 days, while
reviews and revisions have limitation periods of 30 and 90 days respectively. For cases
not specifically covered, a 3-year limitation applies under Article 113 of the Schedule.
This structured approach ensures legal efficiency, encourages diligence, and balances the
rights of parties while discouraging undue delays.
●​ The Limitation Act is designed to prevent the filing of lawsuits or claims after a specified
period, promoting timely enforcement of rights and preventing a chaotic situation where
claims could be made for events that happened long ago.
●​ While rights themselves do not expire, remedies to enforce those rights do, and if the
period of limitation expires, the court typically cannot entertain the case. This is crucial
for maintaining order and fairness in legal proceedings, as it would be unreasonable to
allow claims dating back hundreds of years, like someone claiming fraud committed by
their great-great-grandfather during the Mughal era.
●​ The Limitation Act has two key concepts: the period of limitation and the prescribed
period. The period of limitation refers to the time allowed between the cause of action
arising and the filing of the suit. It is specified in the Act’s schedule, which outlines the
time limit for various types of cases, such as 12 years for mortgages or 1 year for certain
actions.
●​ The cause of action starts when the issue occurs and ends when the suit is filed in the
proper court. For indigent suits, where the plaintiff is poor, the time starts when the
application to file the suit is made.
●​ The Limitation Act applies to suits, applications, and appeals. For appeals, the period of
limitation is not directly given by the Act but can be found in the CPC or substantive law.
Specific rules are outlined for appeals and applications under Section 5, but these do not
apply to suits. Section 5 of the Act deals with extensions for appeals or applications, such
as cases where the court is closed on the last day of the prescribed period. If the court is
closed, the limitation period is extended until the court reopens.
●​ Section 6 provides rules regarding disabilities that prevent individuals from filing suits.
This includes legal disabilities, such as being a minor, insane (under legal definition), or
an "idiot" (a legal term referring to someone with severe mental incapacity). The
limitation period is paused during such disabilities and resumes once the disability ends.
If a person dies during the disability, their legal representative inherits the same period of
limitation. If two consecutive disabilities occur, the time is extended until the second
disability ceases.
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●​ Special rules under Sections 7-9 address various scenarios. Section 7 discusses the case
where multiple people (such as two brothers) are entitled to sue but are minors; the minor
who can act independently does not benefit from the disability rule. Section 9 establishes
that once the limitation period starts, it continues to run and does not stop, as the law
assumes that once a person had an opportunity to act, they should have done so.
●​ Section 12 provides an exception when certified copies of documents are required. If the
delay in obtaining the certified copy is out of the party's control, the time taken to acquire
it is excluded from the limitation period. Section 13 addresses pauper applications, and
Section 14 is significant in India due to parallel proceedings, stating that the limitation
period is not affected by a review before the same court.
●​ The Limitation Act includes benevolent provisions for certain cases, such as Section 17,
which deals with fraud. If fraud has been committed, the limitation period does not start
until the fraud is discovered. The burden of proving fraud lies on the claimant. Section 21
applies when a party is added to an existing case, ensuring that the limitation period
remains tied to the original date, while Section 22 clarifies that every new breach or cause
of action has its own limitation period.
●​ Section 24 specifies that the Gregorian calendar is followed for calculating limitations, so
if the dates are given in a non-Gregorian calendar, adjustments need to be made. Finally,
the Limitation Act is a federal law but may have state-specific amendments, which can
vary depending on jurisdiction.

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