Civil Procedure Code CPC

M.HaseefHamid F2017117052

Question No.1. Define and explain between the two legal terms: RES-
SUBJUDICE and RES-JUDICATA

Ans.
Section – 10 deals with the doctrine of res sub-judice and section-11 deals with the
doctrine of res –judicata. Section -10 provides the rule with regard to stay of suits where
things are under consideration or pending adjudication by a court. On the other hand
section-11 provides the rule relates to a matter already adjudicated. It bars the trial of a
suit or an issue in which the matter directly and substantially in issue has been
adjudicated upon in a former suit. Sections 10 and 11 are mandatory.

Res-Subjudice: Section .10 CP.C.

This means 'a right under judicial consideration'.
In order to prevent courts of concurrent jurisdiction from simultaneously trying two
parallel suits in respect of the same matter in issue, provisions are made in Section.10
C.P.C.
Such a matter is said to be 'Res Subjudice' if the matter previously instituted is pending
in another court of competent jurisdiction.
What is barred is the second suit instituted. The second court should not proceed with
the trial of the suit if:
i. The matter in issue is also directly and substantially in issue in a previously instituted
suit between the same parties.
ii. The previously instituted suit must be (a) in the same court in which the second, suit
is brought or (b) in any other court original or appellate.
iii. The previously instituted case must be pending in any of the courts as above or
Supreme Court competent to grant the relief.
For Example.: B residing in Lahore, has an agent A at Islamabad to sell goods. A sues
B in Islamabad for balance due on account. During the pendency of the suit B institutes
a suit against A, in Lahore. The Lahore court must not proceed as the matter is re-
subjudice in Mysore Court. The suit must be stayed.
 When not apply

Court cannot apply this section where point at issues are distinct and different,[5] or
even where there are some issues in common and others are different issues.[6]This
section is also not applicable between the suits where although the parties are same,
but the issues are not the same.[

Purposes of Res sub-judice

The section -10 intends to protect a person from multiplicity of proceedings and to
avoid a conflict of decisions. It also protects the litigant people from unnecessary
harassment. It also aims to avert (avoid) inconvenience to the parties and gives effect to
the rule of res judicata.

Res Judicata : Section. 11 C.P.C.

Res Judicata means 'right decided’. This means 'the matter is adjudicated' and hence,
the competent court has already decided the matter. The rule is that the second trial
should be barred to prevent multiplicity of proceedings. This rule was laid down in the
Duchess of Kingston’s case by Sir William de Gray, Judge. However, several conditions
are to be fulfilled to bar the jurisdiction of the second court.

Conditions
i) The matter directly & substantially in issue in the subsequent suit must be
the same matter which was directly and substantially in issue either
directly or constructively in the fonner suit. Fomier suit is a suit which has
been decided prior to the
suit in question.

a. A sues B for breach of contract. The suit is dismissed. A subsequently

sues B for damages for breach of contract orl the same contract. This-is barred
under Re Judicata.

b. A sues B for rent due for the year 1995. The defense is that the rent has
been paid and that there are no dues. Hence, the claim for rent is the matter
directly and substantially in issue.

ii. The former suit must have been between the same parties or between
their representatives.
 iii. The parties to the suit must have litigated under the same title in the
former suit,; same title means the same capacity.

For example.: A a man , dies. His heir B sues 'S' to recover property from him.
The suit is dismissed on the ground that the heir had not taken out succession
certificate. But later B is appointed duly as the legal heir of the propety. He can
sue 'S' and there is no res Judicata.

iv. The court which decided the former suit should have been a court competent to
try the subsequent suit.
If the first court had exclusive jurisdiction, then that court's jurisdiction will act as
res Judicata to bar any subsequent suit.
If the first court had concurrent jurisdiction then that court is competent hence res
judicata operates.
Hence, if the first court had neither exclusive nor concurrent jurisdiction, it has no
jurisdiction at all. Hence res judicata will not apply. The suit may be initiated.

v) The matter directly and substantially in issue in the subsequent suit must have
Been heard and finally decided by the court in the suit.
There must be final decision, the matter is heard and finally decided in any one of
the following ways:
(a) Ex Parte
(b) Dismissal
(c) Decree
(d) Dismissal due to plaintiff’s failure to produce evidence.

Purposes of resjudicata

The doctrine of res-judicata is based upon there roman maxims namely, nemo debet
bis vexari pro un et eadem causa, means no man should be vexed twice over for the
same cause of action and Interest republicae ut sit finis litium, means it is to the interest
of the State that there should be an end to litigation. The first maxim looks to the interest
of the litigant, who should be protected from a vexatious multiplicity of suits. The second
maxim is based on the ground of public policy that there should be an end to litigation.
The third number maxim is res judicata pro veritate occipitur means a judicial decision
must be accepted as correct. This maxim is also based on public policy.

If suits are allowed to be endlessly for the same cause of action it will be impossible for
existing courts to deal with the overgrowing number of suits. Unlimited or perpetual
litigation disturbs the peace of the society and leads to disorder and confusion.

Therefore the main objects of the res-judicata are to prevent-

(1) Injustice to the parties of a decides suit;

(2) Unnecessary waste of court resources,

(3) Multiplicity of suit

(iv) Recovery of damages from the defendant twice for the same injury
Principle of res judicata is intended not only to provent a new decision, but also to
prevent a new investigation, so that the same person cannot be harassed again and
again in various proceedings upon the same question.

Question No.5. What are the inherent powers of court? When are these powers
exercised?

Ans.

Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable,

essential or characteristic attribute. Inherent powers of courts are those powers which
may be applied by the court to perform full and complete justice between the parties
before it. It is the duty of the Courts to serve justice in every case, whether given in this
code or not, brings with it the important power to do justice in the absence of a definite
or separate provision. This power is said to be the inherent power that is maintained by
the court, though not conferred.

Section 151 of the Civil Procedure Code deals with the inherent powers of the court.
Provisions of Section 148 to 153B of CPC
The law relating to inherent powers of Court is mentioned in Section 148 to Section
153A of the Civil Procedure Code, which deals with the exercise of powers in different
situations. Following are the provisions of Inherent powers of Courts:

Section 148 and Section 149 deals with grant or enlargement of time;
Section 150 deals with the transfer of business;
Section 151 protects the inherent powers of the courts; and
Section 152, 153 and Section 153A deals with amendments in judgments, decrees or
orders or in separate proceedings.

Enlargement of time

Section 148 of the CPC states that where any term is fixed or awarded by the Court for
the doing of any act provided by CPC, it is the discretionary power of the Court that
Court may enlarge such period from time to time, even though the term originally fixed
or awarded may have departed.
In simple words, when a term is fixed by provision for the doing of any act, the Court
has the power to extend such period up to 30 days. This power is exercisable in the
deficiency of any specific provision to the contrary which reduces or rejects or withholds
the period. The power is limited to the extension of the time fixed by it and is of a
discretionary nature.

Payment of court fees

According to Section 149 of CPC, “Where the entire or a portion of any fee commanded
for any certificate by the law for the time being in force relating to court-fees has not
been met, the Court may, in its discretion, at any step, permit the person by whom such
fee is payable, to pay the whole or part as the case may be, of such court-fee; and upon
such payment, the document, in regard of which such fee is payable, shall have the
same force and result as if such fee had been paid in the initial situation.”

It permits the court to allow a party to make up for the lack of court fees due on a
complaint or notice of appeal etc., even after the expiry of the limitation period for filing
of the lawsuit or appeal, etc. Payment of the expected court fee is compulsory for any
document imputable with court-fee to be presented in the court. If the necessary court
fee is paid within the time set by the court, it cannot be negotiated as time-barred. Such
payment made within the time fixed by the court retrospectively validates a faulty
document. The power of the court is discretionary and must be exercised only in the
importance of justice.

Transfer of business

According to Section 150 of CPC, “Save as otherwise granted, where the business of
any Court is assigned to any other Court, the Court to which the business is so
assigned shall have the same authority and shall make the same duties as those
sequentially presented and forced by or under this Code upon the Court from which the
business was so assigned.”

For example- When the business of a court A is transferred to any other court B, the
court B will exercise the same power or perform the same duties given or commanded
by CPC upon the transfer court.

Section 151 of CPC

Section 151 deals with “Saving of inherent powers of Court.” This Section states that
‘Nothing in CPC shall be considered to restrict or otherwise affect the inherent power of
the Court to make such orders as may be important for the ends of justice or to limit
abuse of the method of the Court.’ It is not obligatory for the court to wait for the law
made by parliament or order from the higher judiciary. Court has discretionary or
inherent power to make such order which is not given in terms of laws for the security of
justice or to check misuse of the method of the Court.
The scope of exercising of Section 151 of CPC can be represented by some cases as
follows:

The court may recheck its orders and resolve errors;

Issuance of provisional sanctions when the case is not included by order 39 or to place
alongside an ‘ex parte’ order;
Illegal orders or orders passed without jurisdiction can be set-aside;
Subsequent events in the case can be taken into consideration by the court;
Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;
The court can erase remarks made against a Judge; and
The court can improve the suit and re-hear on merit or re-examine its order.
Ends of justice

In the case of Debendranath v Satya Bala Dass, the meaning of “ends of justice” was
explained. It was held that “ends of justice” are solemn words, also theres words are not
merely a polite expression as per juristic methodology. These words also indicate that
Justice is the persuit and end of all law. However, this expression is not vague and
indeterminate notion of justice according to laws of the land and statutes.

The Court is allowed to exercise these inherent powers in cases like- to recheck its own
order and correct its error, to pass injunction in case not included by Order 39, and an
ex parte order against the party, etc.

Abuse of process of the court

Section 151 of the CPC provides for the exercise of inherent powers to check the
infringement of the process of the court. Abuse of the powers of the court which
happens in unfairness to party needs to get relief on the ground that the act of a court
shall not prejudice anyone. When a party practices fraud on the court or on a party to a
proceeding, the remedies have to be provided on the basis of inherent power.

The word ‘abuse’ is said to occur when a Court uses a method in doing something that
it is never expected to do is the perpetrator of the said abuse and there is a failure of
justice. The injustice so done to the party must be given relief on the basis of the
doctrine of actus curiae neminem gravabit (an act of the court shall prejudice no one). A
party to a case will become the perpetrator of the abuse in cases when the said party
does acts like obtaining benefits by functioning fraud on the Court or a party to the
proceedings, prompting the multiplicity of proceedings, etc.

Amendment of judgments, decrees, orders, and other records

Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.”
According to Section 152 of CPC, Court has the power to change (either by own actions
or on the application of any of the parties) written or arithmetical mistakes in judgments,
decrees or orders or faults arising from an unexpected lapse or imperfection.
Section 153 deals with the “General authority to amend.” This Section empowers the
court to amend any fault and error in any proceedings in suits and all required
improvements shall be made for the purpose of arranging raised issues or depending
on such proceeding.

Section 152 and 153 of the CPC makes it clear that the court may set correct any
blunders in their experiences at any time.

Power to amend decree or order where an appeal is summarily dismissed and place of
the trial to be deemed to be open Court are defined under Section 153A and 153B of
CPC,1908.

Limitation

The exercise of inherent powers carries with it certain barriers such as:

They can be applied only in the deficiency of particular provisions in the Code;
They cannot be applied in dispute with what has been expressly given in the code;
They can be applied in rare or exceptional cases;
While operating the powers, the court has to follow the method shown by the legislature;
Courts can neither exercise jurisdiction nor entrust in them by law;
To abide by the principle of Res Judicata i.e., not to open the issues which have already
been decided finally;
To pick a mediator to make an award afresh;
Substantive rights of the parties shall not be taken away;
To limit a party from taking proceedings in a court of law; and
To set apart an order which was valid at the moment of its issuance.
Summary of Provisions of Inherent powers of Courts
A summary of Section 148 to Section 153B is that the powers of the court are quite
deep and extensive for the scope of:

Reducing litigation

Evade multiplicity of proceedings

To supply full and complete justice between the parties.

Suggestions
It may be recommended that rules put down by the courts in the application of inherent
powers concurrently with the restraints and limitations on the application of the power
be arranged in the form of rules to be made by the Supreme Court and be made
desirable to the courts for their leadership. The rules may also provide to deal with
different circumstances unprovided for which arises in future.

Conclusion
Inherent powers are the power of court which are helpful in minimizing litigation, avoid
multiplicity of proceedings and to render complete justice between two parties. Section
148 to 153B of CPC discusses the provisions of the Inherent powers of the Court.
These provisions discuss the enlargement of time, payment of court fees, transfer of the
business of one court to another court, end of justice, abuse of process of the court,
amendment of judgment, decree, orders, and records, etc

Question No.4. Define and explain the term “Precept”

Ans:

It means on order, writ, warrant, or process, an order or direction emanating from an

authority, to an officer or body of officers commanding him or them to do some act
within the scope of their powers.

Receipt--meaning

It is a letter of request by a court which passed a decree requesting another court to

attach any property belonging to the judgment debtor.

For example

An order in writing, sent out by a justice of the peace or other like officer, for the bringing
of a person or record before him.

Application

Precept is not to be confined to civil proceedings and is not of a more restricted

meaning than process. It includes warrants and processes in criminal as well as in civil
proceedings.

Object of a receipt

The object of precept is to enable a decree holder to obtain an interim attachment

where there is ground to apprehend that he may otherwise be deprived of the fruits of
his decree.

Explanation Attachment under precept

An order for a permanent attachment is not one contemplated by this section. An

attachment made under this section may continue for more than two months unless the
period is extended by order of the court which passed the decree or unless decree is
transferred for execution to the attaching court and the decree holder applied for the
sale of the property.
For example

When an application for extending the period of the attachment is made before the
expiry of two months but the order extending the time is passed after expiry of the
period, the order will relate back to the date of the petition and will have a retrospective
effect.

Precept, which court may issue

The precept is to be issued by court which passed the decree. It is usual to transfer the
decree for execution to the court to which the precept is issued.

For example  

The jurisdiction of the parent court continues for certain purposes of which Section 46 is
one, and therefore, it can issue a precept even after the decree is transferred for
execution. But the court to which the decree is transferred for execution is not
competent to issue a precept.

Power of court to which precept is sent

The court to which a precept is sent has no jurisdiction to question the validity of the
precept. Therefore it must attach the property as soon as it receives the precept. The
attachment takes effect from the date When the precept is received by the court but the
court to which the precept is sent may stay execution if the judgment debtor deposits
the decretal amount in court or furnishes sufficient security for payment thereof.

Application for execution

The right to apply for the issue of a precept is not an independent right but a step
towards execution in the very nature 01 things, therefore as the decree holder will have
the right to apply for a precept.

For example

The right is a continuing right and accrues from time ti) tinic as long as the decree
remains executable.

Nature of attachment

A precept is an interim attachment, its operation restricted to a period of two months

unless this period is extended, or up to the time of the transfer of the decree to the court
by which the attachment has been made. Permanent attachment cannot he made under
Section 46.  
It is issued by the court which passed the decree and may be issued by such court even
after it has transferred the decree for execution to another court.

It is only an interim measure for the preservation of Property pending the transfer of the
decree. A precept can only be issued after the passing of the decree and is different
from an attachment before judgment.

Interim attachment

This section only applies to attachment in execution and does not affect the jurisdiction
of a court to attach before judgment of an interim attachment order by the court which
passed the decree pending the transfer of the decree to the court within whose
jurisdiction the property is situate.

Application for precept

The application submitted by the party concerned for a precept cannot he considered
one for execution. It is, however a step towards execution and can be made as long as
the decree remains executable.

Who may execute precept

Precept can he 'sent only to that court which is competent to execute the decree. Nis
competence includes competency regarding subject matter as \veil as peCuniary
jurisdiction of the trans(eree court.

Mode of attachment

The court whom a precept is sent is hound to attach the property in accordance with the
precept. It can, however not question the validity of precept. Moreover, the attachment
under a precept cannot he objected to in accordance with rule 58. Ibid, but may he
entertained under Section 151.
The provisions for attachment of property  have been laid down in Order XXI rules 31-
57.  

Appeal

An order of precept under this section does not Call under Section 47, i.e., not being
one in execution and so is not appealable, The contrary view, it is submitted, is not
correct.
 Part-II
Question No.8. Discuss in detail the principles embodied in Order 2
Rule 2, C.P.C.
Ans.
Order II Rule 2 CPC

Order II Rule 2 C.P.C says that a plaintiff may relinquish any portion of his claim in order
to bring the suit within the jurisdiction of any court. In order to apply that provision, the
relinquishment of any portion of the plaintiff’s claim should have been made before the
institution of the suit. It has no application after instituting a suit, that too before a court
without jurisdiction. Most importantly, this provision can have no application if the suit is
laid before a court having no inherent jurisdiction over the subject matter. It is well
settled that by no act of the parties, jurisdiction can be conferred on a court.

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 intentionally 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.

IIIustration.- A lets a house to B at a yearly rent of Rs. 1,200. 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.

Scope ad object

The object of the rule is to avoid splitting of claims to prevenent multiplicity of suits .
1987 CLC 1332. The rule is based on the pricnciple that the defendant should not be
twice vexed for one and the same. PLD 1983 SC 344. Therefore where a suit is based
on a cause of action on which a suit was brought previously the rule will apply and the
subsequent suit would be barred PLD 1977 kar.772

Rule 2 or order II of the CPC is to construed thus

(1) The correct test in case falling under order II rule 2, is whether the claim in the new
suit is in fact suit

(2) The cause of action means every fact which will be necessary for the
prove if traversed order to support his right to the judgment.

(3) If the evidence the two claims is different, then the causes of action are also
different

(4) The cause of action in the two suits may be considered to be the same if in
substance they are identica.

(5) The cause of action has no relation whatever to the defense that may be set up
by the defendant the media upon which the plaintiff asks the court to arrive at a
conclusion in his favor
Pld 1975 pesh 17

Splitting of claim:

This and the proceeding rule are aimed against a multiplicity of a suits in respect of the
same cause of action. The object of the present rule is use the language rule 1 of this
Order, to prevent further litigation". For that purpose the rule provides that every suit
shall include the whole of the claim which the plaintiff is entitled to make in respect of
the same cause of action. He is not entitled to split his cause into parts and bring
separate suits in respect of each parts.

Different causes of action arising from the same transaction:

This rule does require that when several causes of action arise from one transaction,
the plaintiff should sue for all of them in one suit. What the rule lays down is that where
there is one entire of action, the plaintiff cannot split the cause of action into parts so as
to bring separate wits in respect of those parts. The rule is directed to securing the
exhaustion of the relief in respect of cause of action, and not to the inclusion in one and
the same action of different cause of action even though they arise from the same
transaction It was held that a suit upon a promissory note, the suit failing owing to a
material alteration in the note, was givenlo i subsequent suit to recover the conai de
ration for which the promissory note was. A suit to declare a sale invalid will not bar a
suit for possession of the property sold for the plaintiff could not have asked for
possession until the sale went set aside.

Claim 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 last 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 as such he was entitled to , or liable for
jointly with the deceased person whom he represents.

Procedure in case of multifariousness that is misjoinder of defendants and

causes of actions:

if the defect was not noticed when the plaint was presented but was brought to the
notice of the court at a later stage the court might on the application

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. Claims for messenger profits or arrears of rent
in respect of the property claimed .Claims for damages for breach of any contract under
which the property or any part is held. 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
mortgage property.