CODE OF CIVIL PROCEDURE, 1908

It mainly lays down the procedure to be adopted in civil courts, and its principles may be
applicable in other courts, like writ courts, and Tribunals to the extent the enactments
establishing the Tribunals provide for it.

Provides for a fair procedure for redressal of disputes.

The other party may know what the dispute is about, what defence it can take and how both
the parties may proceed to prove their respective cases.

Some of its sections are substantive in nature and not procedural. E.g.

Section 96 – Appeal from Original Decree

(1) Save where otherwise expressly provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie from every decree passed by any Court exercising
original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed 2 [ten thousand rupees.]

Section 100 – Second Appeal

[100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or
by any other law for the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power
of the Court to hear, for reasons to be recorded, the appeal on any other substantial question
of law, not formulated by it, if it is satisfied that the case involves such question.]

STATE AMENDMENT

Kerala.

In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause
shall be added, namely:

(d) the finding of the lower appellate court on any question of fact material to the right
decision of the case on the merits being in conflict with the finding of the Court of first
instance on such question.

[Vide Kerala Act 13 of 1957 sec. 4.]

Section 114 – Review

Subject as aforesaid, any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed by this Code, but from which no
appeal has been preferred.

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes,

may apply for a review of judgment to the Court which passed the decree or made the order,
and the Court may make such order thereon as it thinks fit.

Section 115 – Revision

(1)] The High Court may call for the record of any case which has been decided by any Court
subordinate to such High Court and in which no appeal lies thereto, and if such subordinate
Court appears

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

2[Provided that the High Court shall not, under this section, vary or reverse any order made,
or any order deciding an issue, in the course of a suit or other proceeding, except where the
order, if it had been made in favour of the party applying for revision would have finally
disposed of the suit or other proceedings.]

3[(2) The High Court shall not, under this section, vary or reverse any decree or order against
which an appeal lies either to the High Court or to any Court subordinate thereto.

4[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except
where such suit or other proceeding is stayed by the High Court.]

Explanation--.In this section, the expression" any case which has been decided "includes any
order made, or any order deciding an issue in the course of a suit or other proceeding.]

The other provisions are generally Procedural in nature.

The purpose of the Code is to provide the litigant a fair trial in accordance with the accepted
principles of Natural Justice.

The Code is divided mainly into two parts, Sections and Orders.

The main principles are contained in the Sections while the detailed procedures with regards
to the matters dealt by sections have been specified in the orders.

Section 122 – Power of certain High Courts to make rules

[High Courts 2 [not being the Court of a Judicial Commissioner]] 3 *** may, from time to
time after previous publication, make rules regulating their own procedure and the procedure
of the Civil Courts subjects to their superintendence, and may by such rules annul, alter or
add to all or any of the rules in the First Schedule.
The code is a codification of the principles of Natural Justice.

Natural Justice – ‘Justice to be done naturally’, which is adopted naturally by the habits of
every individual.

It does not mean Godly Justice or Justice of Nature. It simply means an inbuilt habit of a
person to do justice.

For example, if a child of 1,1/2 years breaks the saucer, the mother of the child may slap him
being furious, but at the time of slapping, she would repeatedly ask him why he has broken
the saucer, though she knows that the child has not started speaking.

As these principles are inbuilt-habit of everyone to ask others for furnishing the
explanation of anything done by them, the same are known as ‘principles of natural
justice’.

The first reported case of Natural Justice is Dr. Bentley’s Case i.e. R versus University of
Cambridge, (1723) 1 STR 757, wherein the reference of incident of Garden of Eden1 was
made.

The two words are repeated everyday in the courts- ‘justice’ and ‘law’.

Justice is an illusion as the meaning and definition of Justice varies from person to person and
party to party.

In the case of Delhi Administration V. Gurudeep Singh Uban, AIR 2000 SC 3737) it was
held that parties feel that they have got justice only and only if the case succeeds before the
court, though it may not have a justifiable claim.

History of the Code

The first Code of Civil Procedure was enacted in 1859 by the Committee headed by Mr. John
Romily.

It was amended in 1877 and, subsequently, in 1882, however, those amendments did not
serve the purpose, therefore, the present Code of Civil Procedure was enacted in 1908.

It was drafted by the Committee headed by Sir Earle Richards.

1
Garden of Eden – Adam and Eve – God did not punish them out without giving them opportunity to show
cause as to why they had eaten the prohibited fruit.
The Committee before submitting the draft to the West Minister Parliament travelled
India, read its history and ancient texts, and then knew the traditions and culture of this
country, and draft legislation was prepared keeping all such things in view.

For example, Section 1122 of the Evidence Act, 1872, drafted by Sir James Fitzjames
Stephens, is based on Mahabharat as he realised that the issue of paternity has been very
sensitive in the Hindu society and it was not permissible to challenge someone’s’
paternity. There was no analogous provision to it in England till 1966 when they amended
the provisions of Section 9 of the Marriage Law.

Section 11 - Res Judicata

It contains the rule of conclusiveness of the judgement.

It is based party on the maxim of Roman Jurisprudence “interest reipublicae ut sit finis
litium” (it concerns the State that there be an end to lawsuits) and partly on the maxim
“nemo debet bis vexari pro una et eadem causa” (no man should be vexed twice over for
the same cause).3

The section does not affect the jurisdiction of the court but operates as a bar to the trial of the
suit or issue.

If the matter in the suit was directly and substantially in issue (and finally decided) in the
previous suit between the same parties litigating under the same title in a court, competent to
try the subsequent suit in which such issue has been raised.

In the case of Kunjan Nair Sivaraman Nair v. Narayanan Nair (2004) 3 SCC 277). “Res
judicata pro veritate accipitur” (a thing adjudged must be taken as truth) is the full maxim
which has, over the years, shrunk to mere “ res judicata”.

Even an erroneous decision on a question of law attracts the doctrine of res judicata between
the parties to it.

2
Birth during marriage, conclusive proof of legitimacy.
3
Dr. Subramaniam Swamy v. State of Tamil Nadu & Ors 2014 (1) SCALE 79.
The correctness or otherwise of a judicial decision has no bearing upon the question whether
or not it operates as res judicata.4

In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors., AIR 1953 SC 33, the apex Court
while dealing with the doctrine of res judicata referred to and relied upon the judgment in
Sheoparsan Singh v. Ramnandan Singh, AIR 1916 PC 78 wherein it had been observed as
under:

The rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which
is for all time though the rule of the Code may be traced to an English source, it embodies a
doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators
Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by
law, each citing for this purpose the text of Katyayana, who describes the plea thus: 'If a
person though defeated at law, sue again, he should be answered, ‘‘you were defeated
formerly". This is called the plea of former judgment.’... And so the application of the rule by
the courts in India should be influenced by no technical considerations of form, but by matter
of substance within the limits allowed by law’’.

The apex Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC
941 explained the scope of principle of res-judicata observing as under:

The principle of res judicata is based on the need of giving a finality to judicial decisions.

What it says is that once a res is judicata, it shall not be adjudged again.

Primarily it applies as between past litigation and future litigation, When a matter - whether
on a question of fact or a question of law - has been decided between two parties in one suit
or proceeding and the decision is final, either because no appeal was taken to a higher court
or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a
future suit or proceeding between the same parties to canvass the matter again.

This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil
Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied
by courts for the purpose of achieving finality in litigation.

The result of this is that the original court as well as any higher court must in any future
litigation proceed on the basis that the previous decision was correct.”
4
Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v.

Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65).

The Constitution Bench of the apex court in Amalgamated Coalfields Ltd. & Anr. v.
Janapada Sabha Chhindwara & Ors., AIR 1964 SC 1013, considered the issue of res
judicata applicable in writ jurisdiction and held as under:

“…Therefore, there can be no doubt that the general principle of res judicata applies to writ
petitions filed under Article 32 or Article 226. It is necessary to emphasise that the
application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any
way impair or affect the content of the fundamental rights guaranteed to the citizens of India.
It only seeks to regulate the manner in which the said rights could be successfully asserted
and vindicated in courts of law.”

In Hope Plantations Ltd. v. Taluk Land Board, Peermade & Anr., (1999) 5 SCC 590, the
apex Court has explained the scope of finality of the judgment of this Court observing as
under:

One important consideration of public policy is that the decision pronounced by courts of
competent jurisdiction should be final, unless they are modified or reversed by the appellate
authority and other principle that no one should be made to face the same kind of litigation
twice ever because such a procedure should be contrary to consideration of fair play and
justice. Rule of res judicate prevents the parties to a judicial determination from litigating the
same question over again even though the determination may even be demonstratedly wrong.
When the proceedings have attained finality, parties are bound by the judgment and are
estopped from questioning it.”

A three-Judge Bench of the apex court in The State of Punjab v. Bua Das Kaushal, AIR
1971 SC 1676 considered the issue and came to the conclusion that “if necessary facts were
present in the mind of the parties and had gone into by the court, in such a fact-situation,
absence of specific plea in written statement and framing of specific issue of res judicata by
the court is immaterial”.

“The apex Court in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 observed
that the provisions of Section 11 of the Code of Civil Procedure are not exhaustive with
respect to all earlier decision operating as res judicata between the same parties on the same
matter in controversy in a subsequent regular suit, and on the general principle of res judicata,
any previous decision on a matter in controversy, decided after full contest or after affording
fair opportunity to the parties to prove their case by a Court competent to decide it, will
operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding
the matter formerly be competent to decide the subsequent suit or that the former proceeding
and the subsequent suit have the same subject-matter. There is no good reason to preclude,
such decisions on matters in controversy in writ proceedings under Article 226 or Article 32
of the Constitution from operating as res judicata in subsequent regular suits on the same
matters in controversy between the same parties and thus to give limited effect to the
principle of the finality of decisions after full contest.”

It is a settled legal proposition that the ratio of any decision must be understood in the
background of the facts of that case and the case is only an authority for what it actually
decides, and not what logically follows from it. “The court should not place reliance on
decisions without discussing as to how the factual situation fits in with the fact-situation of
the decision on which reliance is placed.”

If the issue has been already decided on merit between the same parties in an earlier
litigation, it cannot be decided again. Explanation (4) thereof, also provides for constructive
res judicata which has to be read like the provisions of Order II Rule 2. It also applies to the
proceedings in the Suit.

Even an erroneous decision on a question of law attracts the doctrine of res judicata between
the parties to it. The correctness of a judicial decision has no bearing upon the question
whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. ED-. Appakadh
Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee &
Ors., AIR 1953 SC 65).

In Laxman Pandya v. State of U.P., (2011) 14 SCC 94, it was held that dismissal of earlier
writ petitions would not affect adjudication of present writ petitions because both were based
on different causes. In earlier writ petitions, they neither had the opportunity nor could they
claim that acquisition will be deemed to have lapsed due to non-compliance with Section 11-
A. Thus, dismissal or writ petitions filed in 1982 for default or otherwise did not operate as
bar to the filing of fresh writ petitions in 2000.

Undoubtedly, the doctrine of res judicata is applicable where earlier the Suit had been
decided. Though the doctrine may not be attracted in different proceedings at different stages
in the same Suit but the principle enshrined therein is, undoubtedly, applicable.
“The principle of res judicata is based on the need of giving a finality to judicial decision.
What it says is that once a res is judicata, it shall not be adjudged again. Primarily, it applies
as between past litigation and future litigation....... This principle of res judicata is embodied
in relation to Suits in Section 11 of the Code of Civil Procedure; but even where Section 11
does not apply, the principle of res judicata has been applied by courts for the purpose of
achieving finality in litigation......5

It would be impermissible to permit any party to raise an issue inter se where such an issue
under the very Act has been decided in an early proceeding. Even if res judicata in its strict
sense may not apply but its principle would be applicable. Parties who are disputing, if they
were parties in an early proceeding under the very Act raising the same issue would be
stopped from raising such an issue both on the principle of estoppel and constructive res
judicata.6

In certain conditions res judicata also binds the co-defendants (Vide: M/s. Makhija
Construction & Engg (P) Ltd. v. Indore Development Authority & Ors., AIR 2005 SC 2499).

The principle of Res judicata has been held to bind co-defendants if the relief given by the
earlier decision involved the determination of an issue between codefendants.

In Munnibibi v. Triloki Nath, AIR 1931 PC 114, three conditions were laid down:

1. There must be a conflict of interest between the defendants concerned

2. It must be necessary to decide this conflict to give the plaintiff the relief claimed

3. The question between the defendants must be finally decided.

The principle of res judicata would not apply if the decree has been obtained by practicing
misrepresentation or fraud on the court, or where the proceedings had been taken all together
under a special Statute. More so, every finding in the earlier judgment would not operate as
res judicata. Only an issue “directly” and “substantially”, decided in the earlier suit, would
operate as res judicata. Where the decision has not been given on merit, it would not operate
in case against the judgment and decree of the court below the appeal is pending in the
appellate court, the judgment of the court below cannot be held to be final, and the findings
recorded therein would not operate as res judicata7.
5
Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC 941,
6
Vijayabai v. Shriram Tukaram, AIR 1999 SC 451
7
Premier Cable Co. Ltd. v. Government of India, AIR 2002 SC 2418; Arm Group Enterprises Ltd. v. Waldorf
Restaurant, (2003) 6 SCC 423;
The doctrine would not apply if the judgment is by a Court lacking inherent jurisdiction or
when the judgment is non-speaking8.

The doctrine of res judicata is not merely a matter of procedure but a doctrine evolved by the
Courts in the larger public interest. Section 11 merely recognizes the said doctrine which is
basically based on public policy9.

In Deewan Singh & Ors. v. Rajendra Pd. Ardevi & Ors., (2007) 10 SCC 528, the Apex Court
examined a case where in the first round of litigation the Supreme Court had categorically
opined that the disputed property was a Jain temple. In subsequent litigation, the Apex Court
held that it was not permissible for the State to contend that it was Hindu temple as the
finding in the earlier petition attained finality on this issue.

In State of Karnataka v. All India Manufacturers Association, AIR 2006 SC 1846, the
Supreme Court explained the principle enshrined in Explanation IV to Section 11 observing
that it is for preventing the abuse of the process of the Court through reagitation of settled
issues merely because the petitioners drew semantic distinctions from the earlier case. If the
issues that had been raised ought to have been raised in the previous case, it would amount to
abuse of process of the Court and, thus, cannot be allowed. A similar view has been reiterated
in Ramadhar Shrivas v. Bhagwan Das, (2005) 13 SCC 1, observing that the object of
Explanation IV is to compel the party to take all the grounds of attack or defence in one and
the same suit.

Applicability of Res Judicata

In Williams v. Lourdvasamy (2008) 5 SCC 647. Supreme Court held that some stray
observations by the Trial Judge, in an earlier case on the question which was not directly and
substantially in issue – would not bar the subsequent suit.

Dir., Cent. Marine Fisheries Res. Inst. & Ors. v A. Kanakkan & Ors., (2009) 17 SCC 253
Code of Civil Procedure, 1908 - Section 12--Res judicata--Applicability--Principle of res
judicata to apply to proceedings before CAT.--However, when fresh cause of action arises--
Res judicata would have no application.

8
Union of India v. Pramod Gupta (Dead) by L.Rs. & Ors., (2005) 12 SCC 1)
9
Standard Chartered Bank v. Andhra Bank Financial Services Ltd. & Ors., (2006) 6 SCC 94)
(Para 12) Principle of res judicata would apply to proceedings initiated before the Central
Administrative Tribunal. If the said principles were applicable, the bar to maintain a fresh
application on the self-same cause of action would attract provisions of Section 1210 of the
Code of civil Procedure or the general principles of res judicata.

(Para 31) Civil - Res-judicata - Application of - Section 11 of Code of Civil Procedure, 1908
Whether the Judgment and Decree passed in the original suit would operate as res judicata in
subsequent proceedings, including the proceedings before the High Court in the second
appeal and writ petition filed by the Respondents - Held, a plea decided even in suit for
injunction touching the title between the same parties, would operate as res judicata - In the
present case, al1 the issues has been decided in earlier suit and has been confirmed in the
regular second appeal and the issue decided therein was binding on the parties - Each one of
the conditions necessary to satisfy the test as to the applicability of Section 11 of CPC is
satisfied11

Constructive Res Judicata

Tata Industries Ltd. v. Grasim Industries Ltd. (2008) 10 SCC 187. This case deals with
jurisdiction to appoint the arbitrator u/s 11(6) of Arbitration and Conciliation Act, 199612.

Supreme Court rejected the argument raised before the High Court and held – Question of
locus standi not having been raised before the High Court did not survive – it amounted to an
abandonment of the issue and cannot be raised before the Supreme Court.

An issue which ought to have been raised earlier cannot be raised by the party in successive
round of litigation13.

10
Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of
action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this
Code applies.
11
Ramchandro Dagdu Sonavane (Dead) by L.Rs. & Ors. v. Vithu Hiro Mahar (Dead) by LRs. & Ors., (2009) 10
SCC 273
12
6) Where, under an appointment procedure agreed upon by the parties,—
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that
procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a
party may request the Chief Justice or any person or institution designated by him to take the necessary measure,
unless the agreement on the appointment procedure provides other means for securing the appointment.
13
(See: Ramchandra Dagdu Sonavane (dead) by Lrs. & Ors.
Fatima Bibi Ahmed Patel v. State of Gujarat (2008) 6 SCC 789. Supreme Court held that
the principle analogous to Res Judicata or constructive Res judicata does not apply to
criminal cases. Where the entire proceedings have been initiated illegally and without
jurisdiction, in such a case – even the principle of Res judicata (wherever applicable) would
not apply…

Exemptions to Res Judicata

In Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar (2008) 9 SCC 54, the Supreme
Court laid down 3 exceptions to the rule of Res Judicata

(i) When judgment is passed without jurisdiction

(ii) When matter involves a pure question of law.

(iii) When judgment has been obtained by committing fraud on the Court.

Jurisdiction and Cause of Action

Section 15 to 20 deal with place of suing.

Section 15 provides that every suit shall be instituted in the Court of lowest grade competent
to try it.

Section 16 provides for institution of the suit where subject matters are situated.

Section 17 provides that suit shall be instituted for immovable property situate within the
jurisdiction of different Courts.

Section 18 deals with the place of institution of a suit where local limits of jurisdictions of
Courts are uncertain.

Section 19 provides for institution of suits for compensation for wrongs to person or
movable property.

Section 20 provides for institution of the suits not covered by earlier provisions where
defendants reside or cause of action arises.

Conferment of jurisdiction is a legislative function and it can neither be conferred with the
consent of the parties nor by a superior court and if a court having no jurisdiction passes a
decree over the matter, it would amount to a nullity, as the matter by-passes the correct route
of jurisdiction. Such an issue can be raised even at a belated stage in execution.

The finding of a court or Tribunal becomes irrelevant and unenforceable/inexecutable once

the forum is found to have no jurisdiction.

Acquiescence of parties cannot confer jurisdiction upon a court and an erroneous

interpretation equally should not be permitted to perpetuate or perpetrate, defeating the
legislative intention.

The Court cannot derive jurisdiction apart from the Statute. No amount of waiver or consent
can confer jurisdiction on the Court if it inherently lacks it or if none exists. (Vide : Smt. Nai
Bahu v. Lala Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios Pvt. Ltd. v. Navrang
Studio & Anr., AIR 1981 SC 537; Sardar Hasan Siddiqui v. State Transport Appellate
Tribunal, AIR 1986 All.132; A.R. Antuley v. R.S. Nayak, AIR 1988 SC 1531; Union of India
v. Deoki Nandan Aggarwal, AIR 1992 SC 96;))

Jurisdiction :

(a) Territorial Jurisdiction: Dabur India v. K.R. Industries (2008) 10 SCC 595. Apex
Court held that composite suit for passing off & copyright infringement cannot be filed at a
place where plaintiff resides or carries on business etc.

(b) Territorial Jurisdiction specified in contract case. M/s Ass. Rubber Prod. v. M/s
Harry & Jenny & Ors. (2008) AIHC 2754 held that jurisdiction of Court specified in
contract can safely be presumed. Absence of words like ‘along’ ‘only’ excluded would be
irrelevant.

(c) Exclusion of jurisdiction: United India Ins. v. Ajay Sinha, (2008) 7 SCC 454
excluding jurisdiction of civil courts & conferring it on authorities or Tribunals should be
strictly construed….14

(d) Arbitration clause vis-à-vis Civil Jurisdiction - Indian Drugs & Pharmaceuticals
Ltd. v. Ambika Ent. (2008) AIHC 619 held that section 8 of the Arbitration Act, 1996 being
a special provision, would prevail over Section 9 of CPC.

(See also: Swastik Gases Pvt. Ltd. v. Indian Oil Corporation Ltd., (2013) 9 SCC 32).

14
Interpret in a particular way
Decision as to Jurisdiction:

In AVN Tubes Ltd. v. Shishiu Mehta (2008) 3 SCC 572, the High Court in revision, held that
trial court had no jurisdiction. Apex Court directed trial court to decide the issue without
being influenced by the observations made by trial court or High Court in revision.

In Subodh Kumar Gupta v. Shrikant Gupta & Ors., (1993) 4 SCC 1, the Supreme Court
considered a case wherein a partnership firm having its registered office at Bombay and
factory at Mandsore. Two partners - defendants were residing at Mandsore while the third
partner-plaintiff shifted to Chandigarh and an agreement had been drawn up between the
partners at Bhilai for dissolution of the firm and distribution of assets. The suit was filed by
the plaintiff in the Court at Chandigarh for dissolution of the firm and rendition of account on
the ground that the defendants at Mandsore misappropriated partnership’s fund and the
aforesaid agreement was void and liable to be ignored. The Court held that in view of the
provisions of Section 20 of CPC, suit can be entertained in a place where cause of action had
arisen fully or partly. The mere bald allegation by the plaintiff for the purpose of creating
jurisdiction would not be enough to confer jurisdiction or allege that the agreement was void
would not be enough unless the agreement was set-aside by the competent court. The court
must find out by examining the provisions carefully, as to whether the suit can be entertained
by it. Generally, cause of action would arise at the place where the defendant resides, actually
and voluntarily, or carries on business or personally works for gain or the cause of action
arises wholly or in part.

In Oil & Natural Gas Commission v. Utpal Kumar Basu & Ors., (1994) 4 SCC 711, the
Supreme Court considered the provisions of Clause (2) of Article 226 of the Constitution of
India, which provides for territorial jurisdiction of the High Courts. The Apex Court held that
while deciding the territorial jurisdiction of the Court, within which the cause of action,
wholly or partly, arises, the facts must first be decided. It must also be ascertained which
facts are true and the other facts must be disregarded, because the facts form integral part of
the cause of action. In the said case, facts involved were that ONGC decided to set-up a
Kerosene Processing Unit at Hajaria (Gujarat). EIL was appointed by the ONGC as its
consultant and in that capacity, EIL issued advertisement from New Delhi calling for
tenders and this advertisement was printed and published in all leading news papers in the
country including The Times of India in circulation in West Bengal. In response to which
tenders or bids were forwarded to EIL at New Delhi, which were scrutinized and finalized
by the ONGC at New Delhi. However, the writ petition had been filed in the Calcutta High
Court challenging the acceptance of tenders of the other party. Before the Supreme Court,
it was contended that the Calcutta High Court had no jurisdiction as no cause of action had
arisen, even partly, in its territorial jurisdiction. Mere communication to any person at a
particular place or publication or reading of the news or notice etc. does not confer
jurisdiction. After examining the facts of that case, the Apex Court concluded that the
Calcutta High Court lacked jurisdiction. While deciding the said case, the Supreme Court
placed reliance upon the judgment in Chand Koer V. Partab Singh, 15 Ind. Appeals 156,
wherein it had been observed as under:-

“The cause of action has no relation whatsoever to the defence which may be set up by the
defendant, nor does it depend upon the character of the relief prayed for by the plaintiff., It
refers entirely to the grounds set-forth in the plaint as the cause of action; in other words,
to the media upon which the plaintiff asked the court to arrive at a conclusion in his
favour.” Therefore, in determining the objection of lack of territorial jurisdiction, the court
must take all the facts pleaded in support of the cause of action into consideration albeit
without embargo upon an inquiry as to the correctness or otherwise of the said facts.

In Aligarh Muslim University v. Vinay Engineering Enterprises Pvt. Ltd., (1994) 4 SCC
710, the Supreme Court examined a case wherein the contract between the parties was
executed at Aligarh; the construction work was to be carried out at Aligarh; the contract
provided that in the event of dispute, Aligarh Court alone would have the jurisdiction; the
arbitrator was to be appointed at Aligarh and had to function at Aligarh. The Supreme
Court held that the Court at Calcutta had no jurisdiction, because the respondent company
was a Calcutta-based firm.

In Board of Trustees for the Port of Calcutta v. Bombay Flour Mills Pvt. Ltd. & Anr., AIR
1995 SC 577, the Supreme Court considered a case wherein a civil court at Bharatpur
(Rajasthan) entertained a civil suit in respect of assignment of imported goods unloaded at
Calcutta dock and the plaintiff’s representation to the Port Trust to waive the port charges had
been refused. The Civil Court at Bharatpur entertained the suit and passed an ex parte ad-
interim mandatory injunction directing the Port Trust to release the goods on payment of
specified amount. The Rajasthan High Court dismissed the appeal of the Port Trust, but the
Supreme Court held that as no cause of action, even partly, occurred at Bharatpur, the only
appropriate court at Calcutta was competent to take cognizance of the action and held that the
orders of the Civil Court at Bharatpur, having no jurisdiction, were void and the order of the
High Court, refusing to interfere with the orders, was illegal.

In Manju Bhatia & Anr. v. New Delhi Municipal Council & Anr., AIR 1998 SC 223, the
Supreme Court considered a case for damages, under which a “cause of action” in a definite
form may not be relevant except when necessary to comply with the laws relating to
procedure and limitation etc. The Apex Court observed that “a cause of action in modern law
is merely a factual situation., the existence of which enables the plaintiff to obtain a remedy
from the Court and he is not required to head his statement of claim with a description of the
breach of the law on which he relies.....”

In State of Assam & Ors. v. Dr. Brojen Gogoi & Ors., AIR 1998 SC 143, the Supreme Court
examined a case wherein the Bombay High Court had granted anticipatory bail to a person
who was allegedly connected with the offence, for all practical purposes, in a place within the
territorial jurisdiction of Gauhati High Court and all such activities had perpetuated therein.
The Apex Court transferred the case from Bombay High Court to Gauhati High Court to
be heard further.

In C.B.I., Anti-corruption Branch v. Narayan Diwakar, AIR 1999 SC 2362, the Apex Court
considered a case where the respondent was the Incharge/Collector in Daman within the
territorial jurisdiction of Bombay High Court and an FIR had been lodged against him in
Daman for hatching conspiracy. He stood transferred to Arunachal Pradesh within the
territorial jurisdiction of Gauhati High Court. The CBI gave him a wireless message from
Bombay advising him to appear before its officers, in respect of investigation of the said case,
in Bombay. The respondent filed a writ petition under Article 226 of the Constitution before
the Gauhati High Court. The Supreme Court did not decide the case on merit but observed as
under:-

“Suffice it to say that on the facts and circumstances of the case and the material on record,
we have no hesitation to hold that the Gauhati High Court was clearly in error in deciding the
question of jurisdiction in favour of the respondent. In our considered view, the writ petition
filed by the respondent in the Gauhati High Court was not maintainable.”

The entire argument in the case had been that the Gauhati High Court had no jurisdiction to
entertain the writ petition as no cause of action had arisen, even partly, within its territorial
jurisdiction and receiving the message in Arunachal Pradesh to appear before the CBI
Authority at Bombay did not give rise to the cause of action, even partly.
In Navinchandra N. Majithia v. State of Maharashtra & Ors., AIR 2000 SC 2966, the
Supreme Court while considering the provisions of Clause (2) of Article 226 of the
Constitution, observed as under:-

“In legal parlance the expression ‘cause of action’ is generally understood to mean a situation
or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of
operative facts giving rise to one or more basis for suing; a factual situation that entitles one
person to obtain a remedy in court from another person... ’ Cause of action’ is stated to be the
entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact,
which, if traversed, the plaintiff must prove in order to obtain judgment......the meaning
attributed to the phrase ‘cause of action’ in common legal parlance is, existence of those facts
which give a party a right to judicial interference on his behalf.”

The Apex Court held that while considering the same, the court must examine as to whether
institution of a complaint/ plaint is a mala fide move on the part of a party to harass and
pressurise the other party for one reason or the other or to achieve an ulterior goal. For that
consideration, the relief clause may be a relevant criterion for consideration but cannot be the
sole consideration in the matter.

In H.V. Jayaram v. Industrial Credit & Investment Corpn. of India Ltd., AIR 2000 SC 579,
the Supreme Court examined the issue of territorial jurisdiction of a court in respect of the
offence under Section 113 (2) of the Indian Companies Act, 1956. Taking note of Sections
113 and 207 of the said Act, the Apex Court held that the cause of action for default of not
sending the share certificates within the stipulated period would arise only at a place where
the registered office of the company was situated as from that place the share certificates
could be posted and are usually posted.

In Rajasthan High Court Advocates’ Association v. Union of India & Ors., AIR 2001 SC
416, the Supreme Court considered the question of territorial jurisdiction of the Principal Seat
of the Court at Jodhpur and the Bench at Jaipur and explained the meaning of “cause of
action” observing as under:-
“The expression ‘cause of action’ has acquired a judicially settled meaning. In the restricted
sense, ‘cause of action’ means the circumstance forming the infraction of the right or the
immediate occasion for the action. In the wider sense, it means the necessary conditions for
the

maintenance of the suit, including not only the infraction of the rights, but the infraction
coupled with the right itself. Compendiously the expression means every fact which would be
necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment
of the court. Every fact which is necessary to be proved, as distinguishing from every piece of
evidence which is necessary to prove each fact, comprises in a ‘cause of action.’ It has to be
left to be determined in each individual case as to where the cause of action arose.”

In Union of India & Ors. v. Adani Exports Ltd. & Anr., (2002) 1 SCC 567, the Supreme
Court considered the scope of Section 20 of CPC and Clause (2) of Article 226 of the
Constitution while examining whether in that case the Gujarat High Court had territorial
jurisdiction. The Court held that the facts which may be relevant to give rise to the “cause of
action”, are only those which have “a nexus or relevance with the list involved in the case and
none else.” In the said case, the respondent had filed an application before the Gujarat High
Court claiming the benefit of Pass-book Scheme under the provisions of the Import Export
Policy introduced w.e.f. 1-4-1995 in relation to certain credits to be given on export of
srimps. However, none of the respondents in the civil application was stationed at
Ahmedabad. Even the Pass-book, was to be issued by an Authority stationed at Chennai; the
entries in the pass-book under the Scheme concerned were to be made by the Authority at
Chennai and the export of prawns made by them and import of the inputs, benefit of which
the respondents had sought in the application, were also to be made at Chennai. The Court
held that the Gujarat High Court had no territorial jurisdiction, in spite of the fact that the
respondents were carrying on their business of export and import from Ahmedabad, the
orders of export and import were placed from and were executed at Ahmedabad, documents
and payments of export and imports were sent/made at Ahmedabad, the credit of duty
claimed in respect of export were handled from Ahmedabad, the respondents had executed a
bank guarantee through their bankers as well as a bond at Ahmedabad, non-grant or denial of
utilization of the credit in the pass-book might affect the company’s business at Ahmedabad.
The court held as under:-
“......In order to confer jurisdiction on a High Court to entertain a writ petition or a special
civil application as in this case, the High Court must be satisfied from the entire facts pleaded
in support of the cause of action that those facts do constitute a cause so as to empower the
court to decide a dispute which has, at least in part, arisen within its jurisdiction.

..... each and every fact pleaded by the respondents in their application does not ipso facto
lead to the conclusion that those facts give rise to a cause of action within the court’s
territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance
with the lis that is involved in the case. Facts which have no bearing with the lis or the
dispute involved in the case, do not give rise to a cause of action so as to confer territorial
jurisdiction on the court concerned. If we apply this principle then we see that none of the
facts pleaded in para 16 of the petition, in our opinion, fall into the category of bundle of facts
which would constitute a cause of action giving rise to a dispute which could confer
territorial jurisdiction on the courts at Ahmedabad. ...... the fact that the respondents are
carrying on the business of export and import or that they are receiving the export and import
orders at Ahmedabad or that their documents and payments for exports and imports are
sent/made at Ahmedabad, has no connection whatsoever with the dispute that is involved in
the applications. Similarly, the fact that the credit of duty claimed in respect of exports that
were made from Chennai were handled by the respondents from Ahmedabad have also no
connection whatsoever with the actions of the appellants impugned in the application. The
non-granting and denial of credit in the passbook having an ultimate effect, if any, on the
business of the respondents at Ahmedabad would not also, in our opinion, give rise to any
such cause of action to a court at Ahmedabad to adjudicate on the actions complained against
the appellants.”

In Muhammad Hafiz v. Muhammad Zakariya, AIR 1922 PC 23, the “cause of action” was
explained as under:-

“....the cause of action is the cause of action which gives occasion for and forms the
foundation of the suit....”

Similarly, in Read v. Brown, (1889) 22 QBD 128, this was explained as under:-

“Every fact which would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the court.”
A “cause of action” is a bundle of facts which, taken with the law applicable, gives the
plaintiff a right to relief against the defendant. However, it must include some act done by the
defendant, since in the absence of an act, no cause of action can possibly occurred. (Vide:
Radha Krishnamurthy v. Chandrasekhara Rao, AIR 1966 AP 334; Ram Awalamb v. Jata
Shankar, AIR 1969 All. 526(FB); and Salik Ram Adya Prasad v. Ram Lakhan & Ors., AIR
1973 All. 107).

Section 10 – Doctrine of Res Sub Judice

No court shall proceed with the trial of any suit in which the matter in issue is also directly
and substantially in issue in a previously instituted suit between the same parties, or between
parties under whom they or any of them claim litigating under the same title where such suit
is pending in the same or any court in India and beyond India but established by the central
government.

Note – The pendency of suit in a foreign court does not preclude the courts in India from
trying a suit founded on the same cause of action.

In National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR

2005 SC 242, it was held that the language of section 10 suggests that it is reliable to a suit
instituted in the civil court and it cannot apply to proceedings of other nature instituted under
any other statute.

In Radhika Konel Parekh v. Konel Parekh, AIR 1993 Mad. 90: (1993) it was held that
two suits between same parties involving same subject matter and same questions- held
subsequent suit should be stayed.

There are four key ingredients for any case to fall under the ambit of section 10 of cpc.

1. Case Filed but at different times.

2. Matter in issue – Directly and substantially same.
3. Parties – Same
4. Case is pending in a court where it was filed first.

Example- ABC is a company which manufactures biscuits in Delhi and has certain colour,
wrapper, and logo of the product manufactured. It has its operations pan India.
ACB is also a company which manufactures biscuits in Up and has same colour, wrapper,
and logo of the product as of ABC. It also sells its products pan India.

On seeing the product of ACB company, ABC company files a case in the court of Delhi for
stopping the ACB Company from manufacturing any more product on 1st January, 2020.

Delhi Court –

Plaintiff – ABC Company.

Defendant – ACB Company.

Similarly ACB company files a case against ABC Company for violating the product,
wrapper, and logo of its company and hence directing the company to stop from further
manufacture of the goods in UP court on 15th February, 2020.

In UP court-

Plaintiff -ACB Company

Defendant – ABC Company.

On analysing the matter here, we can see that the matter here is same and hence the later
court where the suit was filed will hold the matter as the matter is Sub Judice in Delhi court
and hence the decision given by the Delhi court will be treated as the Res Sub judicata and
hence the decision of the Delhi court will be final concerning the same issue.