4) Civil Procedure Code: Salient Features

The law can be broadly classified as –

1. Substantive Law, and

2. Procedural Law.

The Substantive Law, whether it is based on statute law or common law,

defines what facts are constituting a fact or liability.[1] To say, in other words,
the Substantive law defines various principles regarding the rights and
liabilities. (Example: The Indian Penal Code, 1860 which describes various
offenses punishable under Criminal acts).

On the contrary, the Procedural law or adjective law, on the other hand,

prescribes the procedure and machinery for the enforcement of those rights and
liabilities. To say, in other words, the procedural law is concerned with
enforcement of those rights and liabilities determined in accordance with the
rules of the substantive law.[2] (Example: The Code of Civil Procedure 1908,
The Code of Criminal Procedure, 1973 etc).

The Law regulating the procedure to be followed in civil court is governed by the
Civil Procedure Code and this Civil Procedure Code is one of the most important
branches of the procedural law.

As we all know, “Ignorance of law is not a defense” and every Indian should
know the laws of this nation.

CPC is a territorial law. It extends to whole of India except –

1. The State of Jammu and Kashmir

2. The State of Nagaland and the tribal areas

It also gives a provision that the concerned state government may extend the
provisions of the Civil Procedure Code by notifying in the Official Gazette.[10]
The code can be extended to the whole state or any part of the state using this
provision.

 The Civil Procedure Code made the procedure to be followed in the

Civil Courts very simple and effective. Enforcement of rights, liabilities
and obligations of the citizens are dealt by this code. To say, in other
words, the Civil Procedure Code provides the mechanism for
enforcement of rights and liabilities.
  The Civil Procedure Code is a general law and will not affect local or
special laws which are already in force. In case of any conflict with
local or special laws, the local or special law will prevail over the Civil
Procedure Code. In case, if the local or special law is silent about any
particular issue, then the Civil Procedure Code will apply.

 The Civil Procedure Code has been amended several times to meet

the needs and requirements which are dynamic and changing from
time to time. Between 1909 to 1976, the Code has been amended for
more than 30 times.

The Amendments of 1999 and 2002 brought in many changes to the procedure
to be followed.
2. Res Judicata As Defined Under Code of Civil Procedure, 1908

Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata
or the rule of conclusiveness of a judgement,

as to the points decided either of fact, or of law, or of fact and law, in every
subsequent suit between the same parties. It enacts that once a matter is
finally decided by a competent court, no party can be permitted to reopen it in
a subsequent litigation. In the absence of such a rule there will be no end to
litigation and the parties would be put to constant trouble, harassment and
expenses. The doctrine has been explained in the simplest possible manner by
Das Gupta, J., the principle of Res Judicata is based on the need of giving a
finality to the judicial decisions. What it says is that once a res 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 canvas the
matter again.

Section 11 of the Code of Civil Procedure, 1908 defines Res Judicata as:

No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.

Explanation I: The expression "former suit" shall denote a suit which has been
decided prior to the suit in question whether or not it was instituted prior
thereto.

Explanation II. For the purposes of this section, the competence of a Court
shall be determined irrespective of any provisions as to a right of appeal from
the decision of such Court.

Explanation III. The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or impliedly, by
the other.

Explanation IV. Any matter which might and ought to have been made ground
of defence or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.
Explanation V. Any relief claimed in the plaint, which is not expressly granted
by the decree, shall, for the purposes of this section, be deemed to have been
refused.

Explanation VI. Where persons litigate bona fide in respect of public right or of
a private right claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section, be deemed to
claim under the persons so litigating.

Explanation VII. The provisions of this section shall apply to a proceeding for
the execution of a decree and reference in this section to any suit, issue or
former suit shall be construed as references, respectively, to proceedings for
the execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree.

Explanation VIII. An issue heard and finally decided by a Court of limited

jurisdiction, competent to decide such issue, shall operate as res judicata in as
subsequent suit, notwithstanding that such Court of limited jurisdiction was
not competent to try such subsequent suit or the suit in which such issue has
been subsequently raised.
 3. Res sub judice
One of the Yardsticks of Assessing the Functioning of the
courts is to assess the ‘Judicial Efficiency’. The
Judicial Efficiency is not only dependent on the working
of the judges and the courts, rather it depends more on
the right implementation of the ‘common law rules’ and
doctrines, which are there to increase the pace of
getting the justice in the court, i.e., increasing the
judicial Efficiency. Two of Such Doctrines are:- Doctrine
of Res Sub judice and Res Judicata.

Res Sub Judice

in Latin means ‘under judgment’. It denotes that a matter

or case is being considered by court or judge. When two
or more cases are filed between the same parties on the
same subject matter, the competent court has power to
stay proceedings. However, the doctrine of res sub judice
means stay of suit. The Civil Procedure Code provides
rules for the civil court in respect of the doctrine of
res sub judice . This rule applies to trial of a suit not
the institution thereo.

The doctrine of res sub judice aims to prevent courts

of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel
litigations with respect to the same cause of action,
same subject matter and same relief claimed.

Section 10: Stay of Suit

"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 other Court
in India having jurisdiction to grant the relief claimed,
or in any Court beyond the limits of India established or
continued by the Central Government and having like
jurisdiction, or before the Supreme Court".

Explanation- The pendency of a suit in a foreign Court

does not preclude the Courts in India from trying a suit
founded on the same cause of action.
The object of the of the section is to protect a person
from a multiplicity of proceedings and to avoid a
conflict of decisions. It also protects the litigant
people from unnecessary harassment

Conditions to be complied with before the application of

the principle:

1. There must be two suits one previously

instituted and the other subsequently
instituted.
2. The matter in issue in the subsequent suit must
be directly and substantially in issue in the
previous suit.
3. Both the suits must be between the same parties
or their representatives.
4. The previously instituted suit must be pending
in the same court in which the subsequent suit
is brought or in any other court in Bangladesh
or in any court beyond the limits of Bangladesh
established or continued by the Government or
before the Supreme Court.
5. The Court in which the previous suit is
instituted must have jurisdiction to grant the
relief claimed in the subsequent suit.
6. Such parties must be litigating under the same
title in both the suits.

If these conditions are fulfilled, the subsequent suit

must be stayed by the court where it is pending. It must
be remembered that the institution of the subsequent suit
is not ‘barred’ but its ‘trial’ only. The final decision
of the former suit shall operate as res judicata in the
subsequent suit.

This Doctrine cannot be applied when the point at issues

are distinct and different, or even where there are some
issues in common and others are different issues. It is
also not applicable between the suits where although the
parties are same, the issues are not the same

OR
3 .Doctrine of Res Sub-Judice

Section 10 deals with Doctrine of Res Sub-Judice. ‘Res’ means matter or litigation
and Sub-Judice means pending (under judgment). Conjoining the two, it implies
that the rule of Res Sub-Judice relates to a matter which is pending judicial
enquiry. In other words, this rule applies where a matter is already pending before
a competent court for the purpose of adjudication Section 10 of CPC deals with the
stay of civil suits.

Stay of Suit

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 other Court in India
having jurisdiction to grant the relief claimed, or in any Court beyond the limits of
India established or continued by the Central Government and having like
jurisdiction, or before the Supreme Court.[1] The ingredients of Section 10 are as
follows:-

1. Court shall proceed with the trial of any suit:- It is such court where subsequent
litigation has been instituted and not the court which has taken the adjudication for
previous litigation. Technically speaking, section 10 applies to those litigations
which come within the ambit of section 9 read with section 26(2) of the Code. The
term ‘trial’ in this sense implies to all the proceedings of a civil suit. So, the
subsequent litigation needs to be stayed notwithstanding the stage at which it is.

It were intended to bar the separate trial of any suit in which the matter in issue
was also directly and substantially in issue in a previously instituted suit between
the same parties. But these words do not apply to the simultaneous hearing of a late
and earlier suit after the consolidation of the two. Suit with the meaning of section
10 includes a pending appeal[2] and even if second appeal is lying undecided it is a
previously instituted suit for the purposes of the section.[3]

2. Matter directly and substantially in issue:- It means the rights litigated between the
parties i.e. the facts on which the right is claimed and the law applicable to the
determination of that issue. The words “matter in issue” used in Section 10 do not
mean that entire subject-matter of the subsequent suit and the previous suit must be
the same. These words mean all disputed material questions in the subsequent suit
which are directly and substantially in question in the previous suit.

‘Matter in issue’ with respect to the Evidence Act, 1872 is of two types:-
  Matter directly and substantially in issue:-‘directly’ means immediately, without
intervention. ‘Substantially’ implies essentially or materially.
 Matter collaterally and incidentally in issue

3. Same Parties:- The previously instituted suit must have been a suit between the
same parties or between the parties under whom they or any of them is claiming.
Party is a person whose name appears on the record at the time of the decision.

4. Same title:- It means same capacity. Title refers to the capacity or interest of a
party that is to say whether he sues or is sued for himself in his own interest or for
himself as representing the interest of another.

5. Previously instituted suit must be pending:- The previously instituted suit between
the parties must be a pending one: (a) in the same Court in which the subsequent
suit is brought, or (b) in any Court in India, or (c) in any Court beyond the limits of
India established or constituted by the Central Government, or (d) before the
Supreme Court[4].

Illstrations

 ‘A’ an agent of ‘S’ at Jaipur agreed to sell S’s goods in Bangalore. ‘A’ the
agent files suit for balance of accounts in Bangalore. ‘S’ sues the agent
‘A’ for accounts and his negligence in Jaipur; while case is pending in
Bangalore. In this case, Jaipur Court is precluded from conducting trial
and can petition Bangalore Court to direct stay of proceedings against
Jaipur Court.
 ‘A’ and ‘B’ entered into contract for the sale of machine. ‘A’ first filed a
suit against ‘B’ at court Bombay, demanding recovery of the entire
amount paid. Subsequently, ‘B’ filed a suit against ‘A’ at court Delhi
demanding Rs.18, 000 as outstanding balance. In A’s suit, ‘B’ took the
defence that since both the suits are on similar issues, A’s suit should be
stayed. However, court Delhi held that since A’s suit is the first suit and
the subsequent suit had issues similar to the first suit, it is the
subsequent suit that is liable to be stayed.

Nature and Scope:

Section 10 declares that no Court should proceed with the trial of any suit in which
the matter in issue is directly and substantially in issue in a previously instituted
suit between the same parties and the Court before which the previously instituted
suit is pending is competent to grant the relief sought. [5]
The Rule applies to trial of a suit and not the institution thereof. It also does not
preclude a Court from passing interim orders, such as, grant of injunction or stay,
appointment of receiver[6]. It, however, applies to appeals[7] and revisions.[8]

Object

The object of the rule contained in Section 10 is to prevent courts of concurrent

jurisdiction from simultaneously entertaining and adjudicating upon two parallel
litigations in respect of the same cause of action, the same subject-matter and the
same relief. The policy of law is to confine a plaintiff to one litigation, thus
obviating the possibility of two contradictory verdicts by one and the same court in
respect of the same relief.

4. Rules of Framing Civil Suit.

ORDER II RULE 1, 2, 3, 4, 5,6, 7 OF CODE OF CIVIL PROCEDURE

1908

Rule 1 Order II of Code of Civil Procedure 1908 "Frame of suit"

Every suit shall as far as practicable be framed so as to afford ground for

final decision upon the subjects in dispute and to prevent further litigation
concerning them.

Rule 2 Order II of Code of Civil Procedure 1908 "Suit to include the

whole claim"

(1) Every suit shall include the whole of the claim which the plaintiff is
entitled to make in respect of the cause of action; but a plaintiff may
relinquish any portion of his claim in order to bring the suit within the
jurisdiction of any Court.

(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect

of, or internationally relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs- A person entitled to more than
one relief in respect of the same cause of action may sue for all or any of
such reliefs; but if he omits, except with the leave of the Court, to sue for all
such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation- For the purposes of this rule an obligation and a collateral

security for its performance and successive claims arising under the same
obligation shall be deemed respectively to constitute but one cause of action.

Illustration

A lets a house to B at a yearly of rent Rs. 1200. The rent for the whole of
the, years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only
for the rent due for 1906. A shall not afterwards sue B for the rent due for
1905 or 1907.

Rule 3 Order II of Code of Civil Procedure 1908 "Joinder of causes of

action"

(1) Save as otherwise provided, a plaintiff may unite in the same suit
several causes of action against the same defendant, or the same
defendants jointly; and any plaintiffs having causes of action in which they
are jointly interested against the same defendant or the same defendants
jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as
regards the suit shall depend on the amount or value of the aggregate
subject-matters at the date of instituting the suit.

Rule 4 Order II of Code of Civil Procedure 1908 "Only certain claims

to be joined for recovery of immovable property"

No cause of action shall, unless with the leave of the Court, be joined with a
suit for the recovery of immovable property, except-

(a) claims for mesne profits or arrear of rent in respect of the property
claimed or any part thereof;

(b) claims for damages for breach of any contract under which the property
or any part thereof is hold; and

(c) claims in which the relief sought is based on the same cause of action:

Provided that nothing in this rule shall be deemed to prevent any party in a
suit for foreclosure or redemption from asking to be put into possession of
the mortgaged property.

Rule 5 Order II of Code of Civil Procedure 1908 "Claims by or against

executor, administrator or heir"

No claim by or against an executor, administrator or heir, as such, shall be

joined with claims by or against him personally, unless the mentioned claims
are alleged to arise with reference to the estate in respect of which the
plaintiff or defendant sues or is sued as executor, administrator or heir, or
are such as he was entitled to, or liable for, jointly with the deceased person
whom he represents.

Rule 6 Order II of Code of Civil Procedure 1908 "Power of Court to

order separate trials"

Where it appears to the Court that the joinder of causes of action in one suit
may embarrass or delay the trial or is otherwise inconvenient, the Court may
order separate trials or make such other order as may be expedient in the
interests of justice.
 

Rule 7 Order I of Code of Civil Procedure 1908 "Objections as to

misjoinder"

All objections on the ground of misjoinder of causes of action shall be taken

at the earliest possible opportunity and, in all cases where issues are settled,
at or before such settlement unless the ground of objection has
subsequently arisen, and any such objection not so taken shall be deemed to
have been waived.

5. .Service of Summons after framing of suits

What are Summons? Introduction –

A summon is a legal document that is issued by a Court on a person involved in a legal

proceeding. When a legal action is taken against a person or when any person is required
to appear in the court as a witness in a proceeding, to call upon such person and ensure
his presence on the given date of the proceeding, summons are served.

A summon is served when a suit has been initiated by the plaintiff against the defendant,
the court directs to issue summons to the defendant as this ensures a fair trail. If the
summons are not duly served then no action can be taken against the defendant.

If on serving of the summon and the person against whom it had been issued does not
appear in the court then this will be taken as a Contempt of Court and shall be punished
accordingly.

ORDER V RULE 1, 2, 3, 4, 5 OF CODE OF CIVIL PROCEDURE 1908

Rule 1 Order V of Code of Civil Procedure 1908 "Summons"

(1) When a suit has been duly instituted a summons may be issued to the
defendant to appear and answer the claim on a day to be therein specified :

Provided that no such summons shall be issued when .the defendant has
appeared at the presentation of the plaint and admitted the plaintiff's claim :

Provided further that where a summons has been issued, the Court may
direct the defendant to file the written statement of his defence, if any, on
the date of his appearance and cause an entry to be made to that effect in
the summons.

(2) A defendant to whom a summons has been issued under sub-rule (1)
may appear-

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions
relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such
questions.

(3) Every such summons shall be signed by the Judge or such officer as he
appoints, and shall be sealed with the seal of the Court.

Rule 2 Order V of Code of Civil Procedure 1908 "Copy or statement

annexed to summons"

Every summons shall be accompanied by a copy of the plaint or, if so

permitted, by a concise statement.

Rule 3 Order V of Code of Civil Procedure 1908 "Court may order

defendant or plaintiff to appear in person"

(1) Where the Court sees reason to require the personal appearance of the
defendant, the summons shall order him to appear in person in Court on the
day therein specified.

(2) Where the Court sees reason to require the personal appearance of the
plaintiff on the same day, it shall make an order for such appearance.

Rule 4 Order V of Code of Civil Procedure 1908 "No party to be

ordered to appear in person unless resident within certain limits"

No party shall be ordered to appear in person unless he resides-

(a) within the local limits of the Court's ordinary original jurisdiction, or

(b) without such limits but at place less than fifty or (where there is railway
or steamer communication or other established public conveyance for five-
sixths of the distance between the place where he resides and the place
where the Court is situate) less than two hundred miles distance from the
court-house.

Rule 5 Order V of Code of Civil Procedure 1908 "Summons to be

either to settle issues or for final disposal"

The Court shall determine, at the time of issuing the summons, whether it
shall be for the settlement of issues only, or for the final disposal of the suit;
and the summons shall contain a direction accordingly :

Provided that, in every suit heard by a Court of Small Causes, the summons
shall be for the final disposal of the suit.

6. Affidavit

What Is An Affidavit?

An affidavit is a sworn statement of facts by a person who knows that such

facts and circumstances have taken place. The person who makes such
statement and signs it is known as a deponent. An affidavit is a written
document signed by the deponent, confirming that the contents of the affidavit
are true and correct to his knowledge and he has concealed nothing material
therefrom. It is duly attested/ affirmed by the Notary or Oath Commissioner.
Such Notary/ Oath Commissioners are appointed by the Court of Law. The duty
of the Notary/ Oath Commissioners is to ensure that the signature of the
deponent are not forged. Hence, the deponent himself needs to be present
before the Notary/ Oath Commissioner during the attestation of the affidavit.

The affidavit must be paragraphed and numbered. The person making the
affidavit (the deponent) must sign the bottom of each page in the presence of
an authorized person, such as a lawyer. Further, the affidavit must contain the
full name, address, occupation and signature of the person (deponent) making
such affidavit and the date & place where such affidavit is made. The affidavit
must contain facts and circumstances known to a person and must not set out
the opinions and beliefs of the deponent. Further, one should avoid referring to
facts that are based on information received from others (known as hearsay
evidence).  However, if the person is giving evidence as an expert; for instance,
a psychologist or licensed valuer, then his opinion might be stated in the
affidavit.

The the law pertaining to affidavits is covered under Section 139 and Order XIX
of Code of Civil Procedure, 1908 . Order XIX of Code of Civil Procedure, 1908
empowers the Court to order at any point of time, any particular fact or facts to
be proved by affidavit. But the Court shall not make such order, where it
appears to the Court that either party desires the production of a witness for
cross-examination and that such witness can be produced.

7. Judgment: Sec-2(9)

“Judgment” means the statement given by a judge of the grounds of a decree or

order.

The essential element of a judgment is that there should be a statement for the
grounds of decision.

As the Supreme Court in BalrajTaneja V. Sunil Madan, AIR 1999 SC 3381

held, a Judge cannot merely say “Suit Dismissed” or “Suit Decreed”. The whole
process of reasoning has to be set out for deciding the case one way or the
other.

So, Every Judgment other than that of a Court of Small Cause should contain

1. A concise statement of the case,

2. The points for determination,

3. The decision thereon, and

4. The reason for such decision.

A judgment of a Court of Small Cause may contain only point (2) and (3).

DECREE: SEC-2(2);

Means the formal expression of an adjudication which,

So far as regards the Court expressing it,

Conclusively determines the rights of the parties,

With regards to all or any of the matters in controversy in the suit,

And may be either preliminary or final.

MEANING: Defined under Section 2(2) of the civil procedure code, a decree is a
formal expression which provides the determination of the interests of both the
parties in a conclusive manner with regards to any of the controversial matters
or concerns of the particular civil suit. A decree may include rejection of a
plaint or determination of any question under section 144, but it does not
include the following: any adjudication from which an appeal lies as an appeal
from an order any order of dismissal for default. To understand the concept of
a decree, we must view it as a subset of judgment. It is the decision arrived at
by the judge after hearing the merits on both sides of the case, and also the
expression of the same. A decree forms the latter part of a judgment and is
extracted from the same by a decree clerk after obtaining the basic results of
the case. Interestingly, the date of the decree is the date of the judgment for
facilitating the process of execution and for the benefit of the jud

9. Set-Off

 Definition:

Where in a suit by the plaintiff for recovery of money and the defendant finds that he also
has a claim of some amount against the plaintiff what he do is  he can claim a set-off in
respect of the said amount. This right of the defendant to claim set off has been
recognized under Order 8, Rule 6 of the Code.

 Set-off is related to debts. It is the reciprocal claim made by the defendant. Set-off can be
used only under the suit for recovery of money. This can be better under by an example.
Suppose, A files a suit against B claiming that the latter is Rs.20,000 due to him. Now, B
also has a claim against A that he is Rs.10,000 in debt to the former, i.e., A is Rs.10,000
in debt of B. Here, both are mutually indebted to each other, and they both have to pay
off the debts due to each other. Instead of filing a fresh suit altogether, B files a set-off
claim along with the written statement in response to the plaint filed by A.

Set-off is dealt under Order VIII Rule 6, and it says that such written statement along
with a set-off should be considered by the Court as much as plaint because it too has a
subject matter that is in dispute. However, there certain conditions that have to be met for
filing a set-off by the defendant. They are:

 The suit initiated must be for recovery of money. So, set-off can be filed only in
money suits.

 The defendant must claim only the amount that he has already lent to the plaintiff.
The defendant cannot claim the money he has not already lent. It means the money
should be ascertained.

 The ascertained money should be legally recoverable by the defendant from the
plaintiff. It should not be barred by any laws of limitation.

 The recoverable money by the defendant should be defendant or defendants if

there are many, and in the same way, it should be recovered from the plaintiff or
plaintiffs if there are many.

 The set-off should be filed only in the court which has financial jurisdiction.

Effects:

When a defendant claims set-off, he is put in the position of the plaintiff as regards the

amount claimed by him. Where the plaintiff doesn’t appear and his suit is dismissed or he
withdraws, it does not affect the claim for a set-off by the defendant and a decree may be
passed in his favor if he is able to prove his claim.

Illustrations:

 X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected to insure Y’s
goods and is liable to him in compensation which he claims to set-off. The amount not
being ascertained cannot be set-off.
 P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P for Rs. 1,000.
The two claims being both definite, it may be set-off.

10. Provisions relating to appeal and Powers of Appellate Court

Meaning of appeal

The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law
Dictionary, while construing the concept of ‘appeal’ in its most original and
natural sense, explains it as “the complaint to a superior court for an injustice
done or error committed by an inferior one, whose judgment or decision the
Court above is called upon to correct or reverse. It is the removal of a cause
from a Court of inferior jurisdiction to one of superior jurisdiction, for the
purpose of obtaining a review and retrial”. 

ANALYSIS OF GENERAL PROVISIONS RELATING TO

APPEAL
Section 107 and 108 are the General Provisions relating to appeal.

Section 107 reads as follows:

(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have
power

(a) To determine a case finally;

(b) To remand a case

(c) To frame issues and refer them for trial;

(d) To take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as
nearly as may be the same duties as are conferred and imposed by this Code on courts of original
jurisdiction in respect of suits instituted therein.[1]

* Section 107 (1)(a) and Rule 24 of Order 41 enables the appellate court to dispose of a case finally
where the evidence on record is sufficient.

* Section 107(1)(b) deals with the power of remand [ Send back].

Rule 23 of Order 41 states that where the court from whose decree an appeal is preferred has
disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate
Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall
be tried in the case so remanded, and shall send a copy of its judgment and order to the court from
whose decree the appeal is preferred, with directions to re-admit the suit under its original number in
the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded
during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

Rule 23 A as inserted by the Amendment Act, 1976 enables the Appellate Court to remand a case
where the lower court has decided on merits but the appellate court considers such remand in the
interest of the justice.

CONDITIONS FOR ORDERING REMAND:

1. The suit must have been disposed of by the trial court on a preliminary point.
2. The decree under appeal must have been reversed.
3. Other Grounds (Rule 23 A): Rule 23 A of Order 41 enables the Appellate Court to remand a
case where the lower court has decided on merits but the appellate court considers such
remand in the interest of the justice.

* Section 107(1)(c) and Rule 25-26 gives appellate court the power to frame issues and refer them
for trial.

Where the lower court has omitted to frame any issue or try any issue or to determine any question
of fact which is important for the right decision, then the Appellate court may frame issues and refer
them for trial to the lower court and shall direct the court to take the additional evidence required.
The lower court shall try such issues and shall return the evidence and the findings within the time
fixed by the Appellate court.

*Section 107(1)(d) is an exception to the general rule which empowers an appellate court to take
additional evidence or require such evidence to be taken subject to the conditions laid down in Rule
27 of Order 41.

CIRCUMSTANCES FOR ADDITIONAL EVIDENCE:

1. Improper refusal of lower court to admit evidence.

2. Discovery of new evidence.
3. Requirement by Appellate court.

* Rule 33 of Order 41 empowers an Appellate court to modify decree.

DUTIES OF APPELLATE COURT:

1. Duty to decide appeal finally.

2. Duty not to interfere with decree for technical errors.
3. Duty to re-appreciate evidence.
4. Duty to record reasons etc…

Section 108 of Code of Civil Procedure reads as follows:

Procedure in appeals from appellate decrees and orders.- The provisions of this Part relating to
appeals from original decrees shall, so far as may be, apply to appeals—

(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law in which a different
procedure is not provided.[2]

Section 107 prescribes the powers of an appellate Court:

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

Duties of an appellate court

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

Appeal Revision

An appeal lies to a Superior Court A revision to High Court is available

from every original decree unless only in those cases and against such
expressly barred. orders where no appeal lies.

A right of appeal is one of substantive There is no such right of revision

nature conferred by the statute. because revisional power is purely
discretionary.
An appellate jurisdiction can be The revisional jurisdiction can be
exercised only through a exercised suo motu as well.
memorandum of appeal filed before
the Appellate Court by the aggrieved
party and cannot be exercised suo
motu.

An application for appeal is An application for revision is

maintainable on legal grants as well as maintainable on the ground of
on question of fact. jurisdictional error.

An appeal abates if the legal A revision may not abate and the High
representative of the deceased are not Court has a right to bring the proper
brought on record within the time parties before the Court at any time.
allowed by law.

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

11.. Nature, Scope & Scheme of CPC

a)   Civil Procedure Court: Meaning and Object

The Law relating to the practices and procedure to be followed in the Civil
Courts is regulated by the Code of Civil Procedure, 1908. The
word CODE means ‘a systematic collection of statutes,  body  of laws so
arranged as to avoid inconsistency and overlapping‘.

The main object of this civil procedure code is to consolidate and amend the
laws relating to the procedure and practices followed in the Civil Courts in India.
As such, it was enshrined in the preamble of the code that it was enacted to
consolidate and amend the laws relating to the procedure to be followed in the
civil courts having civil jurisdiction in India. The Civil Procedure Code
regulates every action in civil courts and the parties before it till the
execution of the degree and order.

The Aim of the Procedural law is to implement the principles of Substantive

law.[5] This Code ensures fair justice by enforcing the rights and liabilities.

b)  Extent and Application

The Civil Procedure Code was passed in 1908 and came into force from 1st
January 1909. The Code is applicable to the whole country except –
 1. The State of Jammu and Kashmir
2. The state of Nagaland and the tribal areas[6]

There is also a provision that the concerned state governments may make the
provisions of this code applicable to the whole or part of the State of Nagaland
or such tribal areas by notification in the official gazette.

This code is applicable in the scheduled areas of the erstwhile State of Madras
(Lakshadweep), the East Godavari, West Godavari and Visakhapatnam agencies
(Now in Andhra Pradesh State).

2. Civil Procedure Code: Scope

The Code is exhaustive on the matters directly dealt by it but it is

comprehensive in other issues. The framers of the code could not foresee the
possible circumstances which may arise in the future litigations and could not
provide the procedure for such situations. Hence the framers of the code
(legislature) provided inherent powers to the court to meet such circumstances
(where the code could not provide a procedure) according to the principles
of natural justice, equity and good conscience.

As this Code is a general procedural law, it does not contradict with the local or
special law in force. In the event of any conflict between the civil
procedure code and the special law, the special law will prevail over the civil
procedure code. In case the local or general law is silent on any matter,
then the provisions of the civil procedure code will prevail.[7]

3)  Civil Procedure Code: Scheme

The Code has two parts and they are –

1. The Body of the Code

2.  The Schedule

The Body of the Code has 12 parts containing 158 sections.[8]

The Schedule is the second part containing orders and rules.

The Body of the Code lays down general principles relating to Power of the
court, and in the case of the second part, that is, the Schedule provides
for the procedures, methods and manners in which the jurisdiction of the
court may be exercised.

In fact, there were five schedules when this code was enacted. Later the
Schedules II, III, IV and V were repealed by the subsequent amendments of the
code. The
  The first schedule which is the only schedule to the code now has 51
orders. Each order contains rules that vary in numbers from order to
order. There are eight appendices giving model formats (Forms), such
as –

 Pleadings (Plaint and Written Statement formats)

 Process formats
 Discovery, Inspection and Admission
 Decrees
 Execution
 Supplemental Proceedings
 Appeal, Reference and Reviews
 Miscellaneous

 The various High Courts are empowered to alter or add any rules in
the schedules under Section 122 to 127, 129, 130 and 131 and
such new rules should not be inconsistent with the provisions of the
body of the code.[9]
 The Provisions of the Body of the code can be amended only by
the legislature and the Courts can not alter or amend the body of the
code.
Rules of interpretation

The Literal Rule

Under the literal rule (also: the ordinary meaning rule;

the plain meaning rule), it is the task of the court to give a statute’s words
their literal meaning regardless of whether the result is sensible or not. In a
famous judgment, Lord Diplock in Duport Steel v Sirs (1980) said “The courts
may sometimes be willing to apply this rule despite the manifest absurdity that
may result from the outcome of its application.” The literal rule is often applied
by orthodox judges who believe that their constitutional role is limited to
applying laws as enacted by Parliament. Such judges are wary of being seen to
create law, a role which they see as being strictly limited to the
elected legislative branch of government. In determining the intention of
the legislature in passing a particular statute, this approach restricts a judge
to the so called black letter of the law. The literal rule has been
the dominant approach taken for over 100 years.

The Golden Rule

The golden rule (also: the British rule) is an exception to the literal rule and
will be used where the literal rule produces the result where Parliament’s
intention would be circumvented rather than applied. In Grey v Pealson
(1857), Lord Wensleygalesaid : “The literal rule should be used first, but if it
results in absurdity, the grammatical and ordinary sense of the words may be
modified, so as to avoid absurdity and inconsistency, but no further.”

One example of the application of the golden rule is the case of R v Allen
– Defendant is charged with bigamy, an offence prohibited in Offences
Against Persons Act 1861 which reads “whoever is married, marries another
commits bigamy.” The court held that the word “marries” need not mean a
contract of marriage as it was impossible for a person who is already married
to enter into another valid contract of marriage. Hence, the court interpreted it
as “going through marriage ceremony”.

The Mischief Rule

The final rule of statutory interpretation is the mischief rule, under which a
judge attempts to determine the legislator’s intention; what is the “mischief
and defect” that the statute in question has set out to remedy, and what ruling
would effectively implement this remedy? The classic statement of the
mischief rule is that given by the Barons of the Court of Exchequer in Heydon’s
Case (1854): “…for the sure and true interpretation of all statutes in general,
four things are to be discerned and considered:

1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not
provide?
3. What remedy the Parliament hath resolved and appointed to cure the
disease of the Commonwealth?
4. The true reason of the remedy; and then the office of all the judge is always
to make such construction or shall suppress subtle inventions and evasions
for continuance of the mischief and pro private commodo, and to add force and
life to the cure and remedy, according to the true intent of the makers of the
Act, pro bono publico.

This system of relying on external sources such as the common law in

determining the true intention of the parliament is now seen as part of
the purposive approach, the approach generally taken in the civil law
jurisdictions of mainland Europe. Although the literal approach has been
dominant in common law systems for over a century, judges now appear to be
less bound by the black letter of the law and are more willing to try
to determine the true intention of the Parliament. The task of the judge is now
seen as being give effect to the legislative purpose of the statute in question.

As well as these three rules of interpretation, there are a number of rules that
are held to apply when determining the meaning of a statute:

1. The statute is presumed not to bind the Crown

2. Statutes do not operate retrospectively in respect to substantive law (as
opposed to procedural law)
3. They do not interfere with legal rights already vested
4. They do not oust the jurisdiction of the courts
5. They do not detract from constitutional law or international law

Finally, there are a number of intrinsic (=interal) and extrinsic (=external) aids
to statutory interpretation.

Intrinsic (Internal) Aids to Statutory Interpretation

These are things found within the statute which help judges understand the
meaning of the statute more clearly.

• the long and the short title

• the preamble
• definition sections
• schedules
• headings

Extrinsic (External) Aids to Statutory Interpretation

These are things found outside of the actual statute which may be considered
by judges to help them understand the meaning of a statute more clearly.

• dictionaries
• historical setting
• previous statutes
• earlier case law
• Hansard
• Law Commission Reports
• International Conventions

The basic elements of Intellectual Property:

 1. The baselines of intellectual property and industrial property.
2. Different protective forms.
3. The Hungarian patent system.
4. International patent systems.
5. Patents in chemistry and in pharmaceutical industry.
6. Industrial property information system, databases.
7. The role of IP in the process of innovation.

Nature of Intellectual Property

Intellectual properties have their own peculiar features. These features of
intellectual properties may serve to identify intellectual properties from other
types of properties. Thus, we will discuss them in brief.
1. Territorial
Any intellectual property issued should be resolved by national laws. Why is it
an issue? Because intellectual property rights have one characteristic which
other national rights do not have. In ownership of intellectual property of
immovable properties, issues of cross borders are not probable. But in
intellectual properties, it is common. A film made in Hollywood can be seen in
other countries. The market is not only the local one but also international. If a
design in China is imitated by another person in France which law would be
applicable?
2. Giving an exclusive right to the owner
It means others, who are not owners, are prohibited from using the right. Most
intellectual property rights cannot be implemented in practice as soon as the
owner got exclusive rights. Most of them need to be tested by some public
laws. The creator or author of an intellectual property enjoys rights inherent in
his work to the exclusion of anybody else.
3. Assignable
Since they are rights, they can obviously be assigned (licensed). It is possible
to put a dichotomy between intellectual property rights and the material object
in which the work is embodied. Intellectual property can be bought, sold, or
licensed or hired or attached.
4. Independence
Different intellectual property rights subsist in the same kind of object. Most
intellectual property rights are likely to be embodied in objects.
5. Subject to Public Policy
They are vulnerable to the deep embodiment of public policy. Intellectual
property attempts to preserve and find adequate reconciliation between two
competing interests. On the one hand, the intellectual property rights holders
require adequate remuneration and on the other hand, consumers try to
consume works without much inconvenience. Is limitation unique for
intellectual property?
6. Divisible (Fragmentation)
Several persons may have legally protected interests evolved from a single
original work without affecting the interest of other right holders on that same
item. Because of the nature of indivisibility, intellectual property is an
inexhaustible resource. This nature of intellectual property derives from
intellectual property’s territorial nature. For example, an inventor who
registered his invention in Ethiopia can use the patent himself in Ethiopia and
License it in Germany and assign it in France. Also, copyright is made up of
different rights. Those rights may be divided into different persons: publishers,
adaptors, translators, etc.

Copyright: Definitions & Registration Procedure

Copyright is designed as the right of an original piece of work owned by an
individual. It is fixed in a medium of expression letting the copyright holder
exclusively reproduce, perform, distribute and display the work. The original
creator and the person who obtained rights to the work can register a copyright on
the same.

Taking a cue from the English Copyright Act of 1911, the first ever Copyright Act was
enacted in 1914. Once the country achieved independence, Copyright Act, 1957 was
enacted and has seen amendments being made to it six times, the last being in
2012.

What is a Copyright?
Defined as the property right of an original work owned by an individual,
a copyright is fixed in a physical medium of expression, thus enabling the holder to
exclusively reproduce, distribute, perform, and display the copyrighted work.

The said work may include anything under literature, music, art, photography,
cinema/film or even a computer programme, etc. Unlike a trademark, copyright just
has a single symbol i.e. ©. The symbol can be placed on the original piece of work
that has been created.

COPYRIGHT YOUR WORK RIGHT NOW.

Who Can Register a Copyright?

The creator of the work, and the person who has obtained rights to the original
work can register for the copyright.
It’ll be called ‘work made for hire’, if the said piece was created during the time of
the employment. In such a case, the employee is not considered as the author or
creator of the work. That title goes to the employer.

If a work has been created by two people, then they get co-ownership of the
copyright, unless the people concerned want it otherwise

There is no age bar on obtaining a copyright. A minor can register one too.
If we had to narrow it down to three basic sets of people who can apply for a
copyright, they would be:
a. The creator of the work
b. Any person claiming to have obtained the ownership rights from the creator of
the original work
c. An agent who has been authorized to act on behalf of the aforementioned
people

What Does a Copyright Protect?

It is a form of intellectual property law, which protects original works under
literature, music, art, photography, cinema/film or even a computer programme.
The copyright protects most of the works that are available in tangible form,
including lyrics to a song, tunes, pictures, graphics, sculpture, piece of architecture,
sound recordings, drama, choreographed works, parodies, signatures. All these
must be viewed in more depth to get intricate details.

What is not Protected by Copyright?

There are various categories of work that don’t fit the bill for a copyright:
Those pieces of work that cannot be fixed in a tangible expression, like unrecorded
works, performances of the improvisational kind, or any other speech /
performance that has not been written or recorded. Works including titles, names,
short phrases, and slogans; symbols or designs that are familiar with others; basic
typographic finery, lettering, use of colouring techniques, lists of ingredients or
contents. Ideas, systems, methods processes as distinguished from the said
description, explanation or an illustration. Finally, facts and figures that are generic
property cannot be registered for a copyright. These may include, standard
calendars, charts of height/weight, information from public documents, and the
like.

What are the Rights of the Copyright Owner?

The copyright gives complete and exclusive rights to the owner of the work:
The owner can choose to reproduce the work and/or authorize someone else to do
it
Any derivative work that comes from the original work is carried out by the owner
of the copyright or the authorized person
The owner can also distribute copies of his/her work to the public in any form i.e.
sale of transfer of ownership, rent the work, lease the work, etc.
Any of the copyrighted work can be performed and displayed readily in public. And
the rights hold across all platforms, be it literature, music, drama, choreography,
cinema, films, audio visual works.
Steps for Copyright Registration

Step 1: Filing the Application

Along with the requisite fee, an application needs to be submitted either in DD/IPO.
Once this application is filed, a diary number is generated and issued to the
applicant.

Step 2: Examination
There is a minimum wait of 30 days for recording and analysing any objections that
may come up against the copyright application

a. In case of no Objection:
The application goes ahead for scrutinization by an examiner. This scrutiny gives
rise to two options:

1. In case of discrepancy found during scrutiny:

A letter of discrepancy is sent to the applicant letter is generated and sent to the
applicant.

Based on the reply from the applicant, the registrar conducts a hearing of the
alleged discrepancy row

Once the discrepancies are sorted during the hearing, the extracts of the same are
sent to the applicant for him/her to register the copyright

2. In case of zero discrepancy:

This would mean that the copyright application fulfils all criterion required for the
copyright. The applicant is then given the nod to go ahead with the registration of
the same.
(If the registration is not approved, then the applicant received a letter of rejection)

b. In case of an objection filed:

While we listed above the scenarios of ‘no objections’, in case one is faced with an
objection, the following proceedings take place:
Authorities send out letters to the two concerned parties, trying to convince them
to take back the objection

After requisite replies from the third party, the registrar conducts a hearing

Depending on whether the registrar accepts the reply, the procedure takes shape
1. If the application is accepted:
The application being accepted means that the objection has been rejected. The
application goes ahead for scrutinization by an examiner. This scrutiny gives rise to
two options:

2. In case of discrepancy found during scrutiny:

A letter of discrepancy is sent to the applicant letter is generated and sent to the
applicant.

Based on the reply from the applicant, the registrar conducts a hearing of the
alleged discrepancy row

Once the discrepancies are sorted during the hearing, the extracts of the same are
sent to the applicant for him/her to register the copyright.

c. In case of zero discrepancy:

This would mean that the copyright application fulfils all criterion required for the
copyright. The applicant is then given the nod to go ahead with the registration of
the same. (If the registration is not approved, then the applicant received a letter of
rejection)

d. If application is rejected:
In case this happens, then the applicant receives a rejection letter that marks the
end of the copyright procedure

Step 3: Registration
As can be seen from the aforementioned steps, the registration solely depends on
the registrar. Once everything is cleared from the registrar’s end, the applicant
received the copyright and can legally exercise all rights that come with the owner
of that copyright.

Copyright is a form of the intellectual property law. It is registered to protect

original pieces of work such as music, art, literature, cinema/film, photography or a
computer program. There are in-depth categories that can be registered for
copyright by the creators. It will give exclusive and complete rights to the creator of
the work.

TRADEMARKS AND RIGHTS AVAILABLE FOR TRADEMARKS

A “Trade mark” [TM] is defined under Section 2(zb) of the Indian Trademarks Act, 1999
as “mark capable of being represented graphically and which is capable of
distinguishing the goods or services of one person from those of others and may
include a shape of goods, their packaging, and combination of colors.”
 Simply put, a trademark may include a device, brand, heading, label, ticket, name,
signature, word, letter, numeral, a shape of goods, packaging or combination of colors
or any such combinations. (Section 2(m)). The only qualification for a trademark being
its capacity to distinguish the goods or services of one person from that of another.

RIGHTS

1. Rights of Unregistered Trademark Holder/Owner

The proprietor of an unregistered trademark can prevent any third party from
using an identical or deceptively similar trademark, provided such an unauthorized
use by the rival results into passing-off. For this purpose, he can initiate the
proceedings under common law. Therefore, such a right is known as a common law
right. Apart from an injunction, the claimant may at his option, obtain either
damages or an account of profits. The claimant must establish three important
factors in order to bring an action against the pass-off, namely-
 He has acquired goodwill in his trademark;
 (ii) The act of the defendant amounts to misrepresentation;
 (iii) The claimant has suffered or is likely to suffer damage due to the act of
the defendant.
2. Rights Of Registered Trademark Holder/Owner
Following are the rights which are at disposal of the owner or holder of
a registered trademark
(i) Right to Exclusive Use
Section 28(1) of the Act provides that subject to the other provisions of this Act,
registration of a trademark, if valid, give to the registered proprietor of the
trademark the exclusive right to use the trademark in relation to the goods or
services in respect of which the trademark is registered. In Ramdev Food Products
Pvt. Ltd. v. ArvindbhaiRambhai Patel the Supreme Court observed “Section 28….
confers an exclusive right of using trademark to a person who has the trademark
registered in his name. Such right is, thus, absolute. However, from the opening of
Section 28(1) of the Act namely, “subject to the provisions” the right conferred on
the registered proprietor is not an indefeasible right. This is further, made clear by
Section 27(2) of the Act, which says “nothing in this Act shall be deemed to affect
the right of action any person for passing off the goods as goods of another person,
or the remedies in respect thereof. Thus, the right created by Section 28(1) of the
Act in favour of a registered proprietor of a trademark is not an absolute right and
is subservient to other provisions of the Act Namely Sections 27(3), 33 (saving for
vested rights) etc. It is also pertinent to note that the registered proprietor of a
trademark gets exclusive rights to use the trademark in relation to goods or
services in respect of which it is registered and that person may not have the right
to use the trademark in respect of the other goods or services in respect of which
the trademark is registered”.
(ii) Right to Seek Statutory Remedy Against an Infringement
Section 28(1) also provides that the registered proprietor of a trademark can seek
legal remedy in case of an infringement of his trademark in the manner provided
by this Act. He may obtain an injunction and at his option, either damages or an
account of profits by instituting a suit against the alleged infringer. The proprietor
of an unregistered trademark cannot initiate the infringement proceeding in the
event of a deliberate counterfeiting. The Delhi High Court has observed that
registration of a trademark confers on the person some very valuable rights. To
mention only one such right, one may turn to Sub-section (1) of Section 27 which
provides that no person shall be entitled to institute any proceedings to prevent or
to recover damages for, the infringement of an unregistered trademark.
(iii) Right of Registered Trademark holder of Identical Trademark
Section 28(3) provides that where two or more persons are registered proprietor of
trademarks, which are identical with or nearly resembling with each other, the
exclusive right to use of any of those trademarks shall not (except so far as their
respective rights are subject to conditions or limitations entered on the register) be
deemed to have been acquired by any of those persons as against any other of
those persons merely by registration of trademarks. However, each of those
persons has otherwise the same rights against other persons excluding registered
users using by way of permitted use, as he would have if he were the sole
registered proprietor.
(iv) Right to Assign
Section 37 of the Act provides that the registered proprietor of a trademark shall
have the power to assign the trademark and to give effectual receipts for any
consideration for such assignment. However, this right shall be subject to the
provisions of the Act and to any rights appearing from the register to be vested in
any other person.
(v) Right to Seek Correction of Register
The registered proprietor of a trademark has a right to make an application to the
registrar seeking correction of register regarding the errors pertaining to the
particulars of the registered proprietor and other aspects relating to the registered
trademark.
(vi) Right to Alter Registered Trademark
The registered proprietor of a trademark must make an application to the registrar
seeking leave to add to or after the trademark in any manner not substantially
affecting the identity thereof. The Registrar may refuse the leave or grant it on such
terms and may be subject to such limitations as he may think fit.

What is not Patentable?

 Inventions falling within the scope of Sec. (3) of Patents Act, 1970.
 Inventions falling within the scope of Sec. (1) of Sub-sec. 20 of Atomic Energy
Act, 1962-

The following are not inventions as per Section 3 of patent act

(a) an invention which is frivolous or which claims anything obviously contrary to well
established natural laws;

(b) an invention the primary or intended use or commercial exploitation of which could
be contrary to public order or morality or which causes serious prejudice to human,
animal or plant life or health or to the environment;

(c)    the mere discovery of a scientific principle or the formulation of an abstract theory
or discovery of any living thing or non-living substance occurring in nature;

(d) the mere discovery of a new form of a known substance which does not result in the
enhancement of the known efficacy of that substance or the mere discovery of any new
property or new use for a known substance or of the mere use of a known process,
machine or apparatus unless such known process results in a new product or employs
at least one new reactant.

(e) a substance obtained by a mere admixture resulting only in the aggregation of the
properties of the components thereof or a process for producing such substance;
(f)  the mere arrangement or re-arrangement or duplication of known devices each
functioning independently of one another in a known way;

(g)..(omitted)

(h)  a method of agriculture or horticulture;

(i) any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic
or other treatment of human beings or any process for a similar treatment of animals to
render them free of disease or to increase their economic value or that of their
products.

(j) plants and animals in whole or any part thereof other than micro organisms but
including seeds, varieties and species and essentially biological processes for
production or propagation of plants and animals;

(k)   a mathematical or business method or a computer programme per se or

algorithms;

(l)   a literary, dramatic, musical or artistic work or any other aesthetic creation
whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing
game;

(n)   a presentation of information;

(o)   topography of integrated circuits;

(p)   an invention which in effect, is traditional knowledge or which is an aggregation or

duplication of known properties of traditionally known component or components.

And as per Section 4 of patent act Inventions relating to atomic energy not patentable.