Module 1- Introduction..............................................................................................................

5
1. Cases relating to object of the Courts and what is the Court’s stance on the same:.......9
I. Ganesh Trading Co. v Mojiram (AIR 1978 SC 484)...................................................9
II. Syed Muhammad Bakar v Abdul Habib Hasan (AIR 1998 SC 1624)........................9
2. Interpretation of CPC:.....................................................................................................9
I. State of Punjab v Shyamlal Murari (AIR 1976 SC 1177)...........................................9
3. Basic Terms and Essentials of CPC..............................................................................10
I. Madan Naik v Hansubala Devi (AIR 1983 SC 676).................................................10
II. Hansraj Gupta v Official Liquidators of Dehradun Musoorie Electric Tramway Co.
Ltd. 11
III. Diwan Brothers v Central Bank of India (AIR 1976 SC 1503).................................11
IV. Dattatraya v Radhabai................................................................................................11
V. Jethanand & Sons v State of UP (AIR 1961 SC 794)................................................11
VI. Shankar v Chandrakand (AIR 1995 SC 1211)..........................................................12
VII. Moolchand v Director, Consolidation (AIR 1995 SC 2493)...............................12
VIII. CIT v Bombay Port Trust Corp. (Privy Council judgement)- 1939....................12
IX. East and Dwelling Co. Ltd. v Finsbury Bureau Council (English Judgement)- 19...13
X. Cambay Electric Supply Industrial Co. v CIT (AIR 1978 SC 1099)........................13
I. Balraj Taneja v Sunil Madan (AIR 1999 SC 3381)...................................................13
I. Lalji Raja & sons v Firm Hansraj Nathuram AIR 1971 SC 974...............................14
I. Mahant Narain v Tirumali Tirupathi Devasthana......................................................15
II. Dakshina v Saroda.....................................................................................................15
Module 2: Jurisdiction of civil courts......................................................................................17
I. Abdul Waheed Khan v Bavani (AIR 1966 SC 1718)................................................18
II. Gangabai v Vijay Kumar (AIR 1974 SC 1126).........................................................18
III. Union of India v Tarachand Gupta and Ors. (AIR 1971 SC 1558)...........................18
IV. Official Trustee v Sachindra Nath (AIR 1969 SC 823).............................................18
I. Anisminic Ltd. v Foreign Compensation Commission (1969) 1 All E.R. 208 / 1969 1
AC 147.............................................................................................................................18
II. Ujjambai v State of U.P. (AIR 1962 SC 1621)..........................................................19
III. Dhirendranath v Sudhir Chauhan (AIR 1964 SC 1300)............................................19
IV. A.R. Antulai v R.S. Nayak (AIR 1988 SC 1531)......................................................19
V. ABC Laminad Pvt Ltd. A.P. Agencies (AIR 1989 SC 1239)....................................19
VI. Kiran Singh v Chaman Paswan (AIR 1954 SC 340).................................................19
VII. Ittyavira Mathai v Varkey (AIR 1964 SC 907)....................................................20
VIII. Abdullah bin Ali v Galappa (AIR 1985 SC 577).................................................21
IX. Begum Sahiba v Nawab Muhammad Mansur (AIR 2007 SC 1636).........................21
X. Bank of Baroda v Motibhai (AIR 1985 SC 545)- Imp..............................................21
XI. Ananti v chhannu 1930 allahbad HC.........................................................................21
XII. Topan das v gorakhram AIR 1964 SC 1348 (case (a) was referred in this case) 21
XIII. Bhatia Cooperative Housing Society ltd v D.C. Patel AIR 1953 SC 16..............22
XIV. Most rev. P.M.A Metropolitan v Moran Marthoma AIR 1995 SC 2001.............23

1
 XV. CIT v Parmeshwari Devi AIR 1998 SC 1276......................................................24
XVI. Abdul wahid Khan v Bhawani.............................................................................24
XVII. Bharat kala bhandaar pvt ltd v Municipal Community Dhamman Gaon. AIR
1966 SC 249.....................................................................................................................24
XVIII. State of Tamil Nadu v Ram Linga Samigal AIR 1986 SC 794.......................24
XIX. LIC v India Automobiles & Co. AIR 1991 SC 884.............................................24
XX. premier automobiles v Kamlekar Shanta AIR 1975 SC 2238.............................24
XXI. Secretary of State v Sask and Co. AIR 1940 SC/PC 105 [read book for
foundation on jurisdiction of court to oust].....................................................................25
XXII. Firn State Radha Krishan v Administrator Municipal Community Ludhiana
AIR 1963 SC 1547...........................................................................................................25
XXIII. Dhulabhai v State of M.P.................................................................................25
1. Res Judicata...................................................................................................................26
I. Satyadhan Ghoshal v Deorjin Devi (AIR 1960 SC 941)...........................................27
II. Duchess of Kingston case..........................................................................................27
III. Dariyaro v State of UP case.......................................................................................27
I. Batul Begum v Hem Chandar 1960 All HC..............................................................28
I. Sheo Dan Singh v Dariyao Kunwar AIR 1966 SC 1332...........................................30
II. Mathura Prasad v Dosibai N B Jeejee Bhoi AIR 1971 SC 2355...............................30
III. Pandu Rang Ramchandra v Shanti Bai Ramchandra AIR 1989 SC 2240.................30
IV. Workman v Board of Trustees Kochin Court Trust AIR 1978 SC 1283...................30
V. State of UP v Nawab Hussain AIR 1977 SC 1680....................................................31
VI. Forward Constructive Co. v Prabhat Mangal AIR 1986 SC 391..............................31
VII. Iftikhar Ahmed v Sayeed Meherban Ali..............................................................31
VIII. Nottingham v Earl Shrewsbury case....................................................................31
IX. Syeed Mehmoob Sahab v. Sayeed Ismail AIR 1995 SC 1205..................................31
X. Iftikhar Ahmed v Sayeed Meherban Ali....................................................................32
XI. Dariyao v state of UP AIR 1961 SC 1457.................................................................32
I. Sarvuja transports services v STAT AIR 1986 SC 88...............................................32
I. Pandu Rang Ramchandra v Shanti Bai Ramchandra AIR 1989 SC 2240.................33
2. FOREIGN JUDGMENTS.............................................................................................33
I. R. Viswanathan v Rukn ul Mulkh Syed Abdul.........................................................33
II. Gurdyal Singh v Raja of Faridkot (1895 PC)............................................................33
I. International Woolen Mills v Standard Wool UK Ltd (AIR 2001 SC 2134)............34
II. Narasimha Rao v Venkatlakshmi (1991) 3 SCC 451................................................34
I. Sankaran Govindan v Lakshmibharat (AIR 1974 SC 1764).....................................34
I. A.V. Papayya Shastri v Govt. of A.P. (AIR 2007 SC 1546).....................................35
I. Satya v Teja Singh (AIR 1975 SC 105).....................................................................35
I. Batad and Co. v East India Trading Co. (AIR 1964 SC 538)....................................35
II. R. Viswanathan v Rukn ul Mulk Syed Abdul (AIR 1963 SC 1) (imp).....................35
I. Satya v Teja Singh (AIR 1975 SC 105) (imp)...........................................................35
I. Narsimha Rao v Venkatlakshmi................................................................................36
3. Place of Suing in India..................................................................................................36
4. Institution of Suits.........................................................................................................36

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 II. S.K. Saldi v U.P. State Sugar Corporation................................................................37
III. B. Prabhakar Rao v State of A.P. (1985 Supp. SCC 432).........................................37
IV. Naba Kumar v Radha Shyam (PC 229).....................................................................37
V. Anil Kumar v Shivnath 1995 (3) SCC 147................................................................37
VI. Raziya Begum v Sahibzihadi Anwar Begum AIR 1999 SC 976...............................38
5. Frame of Suits...............................................................................................................38
VII. Mohammad Khalil v Mehboob Ali......................................................................39
Module 3: Pleadings.................................................................................................................41
I. Sayid Dastagir v T.R. Gopalkrishna Setty.................................................................41
II. Ramprasad v State of M.P.........................................................................................41
III. Calcutta Discount Company Ltd. V ITO...................................................................41
IV. Udhav Singh v Madhav Rao Sindhia (AIR 1976 SC 744)........................................41
V. Virendranath v Satpal Singh......................................................................................41
VI. Williams v Wilcox and Phillips v Phillips.................................................................42
VII. Virendranath v Satpal Singh................................................................................42
VIII. Virendra Kashinath v Vinayak Joshi...................................................................42
I. Suraj Prakash v Raj Rani AIR 1981 SC 485.............................................................42
II. Cropper v Smith (1884) 29 KB 700..........................................................................42
I. Jay Jay Rammanohar v National Building Materials Suppliers AIR 1969 SC 1267 43
I. A.K. Gupta and Sons Ltd. v Damodar Valley Corporation AIR 1967 S 96..............43
II. Gangabai v Vijay Kumar...........................................................................................43
I. Steward v North Metropolitan Tramway Companies................................................43
II. A.K Gupta and Sons Ltd. v Damodar Valley Corporation........................................43
I. Weldon v Neal, 1887.................................................................................................44
II. Pirgonda Patil v Kalgonda Patil AIR 1967 SC 363...................................................44
III. Charan Das v Amir Khan AIR 1921 PC 50...............................................................44
I. Patasi Bai v Ratanlal (1990) 2 SCC 42......................................................................44
II. Usha Devi v Rizwan Ahmed (2008) 3 SCC 717.......................................................44
Module 3: Plaint and Written Statement..................................................................................45
I. Union of India v Surjeet Singh AIR 1979 SC 1701..................................................46
II. Udhav Singh v Madhav Rao Sindia AIR 1917 SC....................................................46
I. Badar and Co. v Indian Trading Co...........................................................................46
I. Modula India v Kamakshia Singh Deo AIR 1989 SC 162........................................47
II. Balraj Taneja v Sunil Madan (Imp) AIR 1999 SC 3381...........................................47
III. Union of India v Karam Chand Thapar & Bros. Ltd (2004) 3 SCC 504...................48
6. Counter Claim...............................................................................................................48
I. Laxmi Das v Nanabhai AIR 1964 SC 11...................................................................48
II. Ramesh Chand v Anil Panjwani AIR 2003 SC 5208................................................48
III. Rohit Singh v State of Bihar......................................................................................49
7............................................................................................................................................49
IV. Gangadevi v Krishnaprasad.......................................................................................50
V. Raj Narain v Indira Gandhi, AIR 1972 SC 1302.......................................................50
8. Ex Parte Orders and Decrees........................................................................................51
VI. Sangram Singh v Election Tribunal AIR 1955 SC 425.............................................51

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 VII. Calcutta Port Trust v Shalimar Tar Product Ltd. AIR 1981 SC 684...................51
VIII. Raja Devi Baksh v Habib Shah PC 1913.............................................................51
IX. Lachi Tewari v Director of Land Records AIR 1984 SC 41.....................................52
X. Chota Lal v Ambalal Hargovan 1925 Bombay HC- IMP.........................................52
XI. Currim Bhai v N.H. Moos 1929 Bombay HC...........................................................52
XII. G.P. Srivastav v R.K. Raizada, (2000) 3 SCC 54................................................52
XIII. UCO Bank v Iyengar Consultancy Services Pvt Ltd., (1994) Supp 2 SCC 399..53
XIV. Siraj Ahmed v Premnath, AIR 1993 SC 2525.....................................................53
XV. Hiralal v Badbulal, AIR 1953 SC 225.................................................................53
XVI. Kundibai v Vishinjit Hotchand, 1977 judgment of Sind HC [AIR 1947 Sindh
105] 54
XVII. Hiralal v Kalyan Mal, AIR 1988 SC 618.........................................................54
Interim Orders..........................................................................................................................55
1. Commissioner...............................................................................................................55
I. Tushar Kanti v Savitri Devi, AIR 1996 SC 2752......................................................56
2. Temporary Injunction...................................................................................................56

4
 MODULE 1- INTRODUCTION
1. What is the difference b/w contract of service and contract for service
2. Substantive law prescribes/creates /confers basic rights, obligations, duties or legal
status to a natural person or to an artificial legal entity.
- a right always has a corresponding duty.
 Procedural law- manner/machinery/prescription for getting enforced those basic
substantive rights as prescribed in substantive law through a court of law as est by due
process of law
- thus procedural law substantiates substantive law. It ensures one gets access to those
substantial rights. You get this access through a court of law est by due process.
 Difference b/w contract of service and contract for service?
 Why is CPC not just a procedural law?
- CPC comprises 151 sections and 51 Orders and Rules (sections discuss certain
substantive aspects and these are further substantiated by the order. How is implemented
when taken to court)
- Doctrine of res judicata and sub judice provide substantive rights. RJ (when matter is
heard cannot brought in again by the same parties)- right to seek relief wrt continuous
harassment wrt a legal case, this doctrine is mentioned in CPC alone. SJ- when matter
being heard in a certain court, another court will not proceed w that matter, mentioned in
CPC.
- CPC mix of substantive and procedural law w greater character of procedural law. Not
only procedure discussed but also rights discussed in the courts through that procedure.
- Inherent power of the courts- nothing in CPC will prevent civil courts from doing
complete justice (when law is silent upon a matter). This is a substantive right (a
substantive pow given to the courts).
- When a law has both substantive and procedural aspects, need to demarcate in some way
thus demarcated as procedural. CPC is both with more aspects of procedural law
 After the Company Rule, there came the Crown rule. They initiated a forum to discuss
issues to avoid resulting in mutiny.
- they said no matter what system was being inherited in the judicial system, it had to be
uniform so that the Crown could rule
- First attempt at drafting a CPC- 1859
- The rules were flawed in nature- didn’t cover presidency and small causes court and left
certain matters to the discretion rulers of the princely states (certain nature of autonomy).
They didn’t want to directly indulge in the negos going on but wanted to have a certain
level of control
 They came up w the 2nd CPC in 1877. This wasn’t an entirely new draft but built heavily
upon the initial one. They cleared some mistakes made. This one failed even more
miserably as it was built on the foundations of the initial code, which already had certain
flaws so these flaws were inherited.
 They came out with a third draft in 1882 and appl by British in India uniformly and this
time exemptions were limited to the narrowest extent possible it also included major

5
 civil codes and tried to include several codes already in operation. They tried to ensure a
fair deal should be afforded to the people.
- towards the end of the 18th century, the Congress came into being for the Indian to raise
their issues to deliberate. However, what the British wanted that prevailed always. But it
was still a platform for judicial discussion and deliberation.
- This CPC had rules and orders but these weren’t clarified properly. They were 1) drafted
in a very complex language and 2) such language that couldn’t be understand by the
common masses and 3) they still weren’t acknowledging the basic customs and systems
of the people .
- Thus people would not attend courts as they felt this was contrary to their customs and
was alien. It did not recognise local customs. Thus this failed too.
- Enforced for a certain period and so understood the defects
 There was a changing pol scenario in the beginning of the 20 th century- partition of
Bengal, moderates and extremists, Surat split, etc.
- the administrators were under tremendous pressure as they realised it would be difficult to
maintain rule if they kept on ruling like this so they started giving certain concessions in
the form of administrative and judicial reforms (blessing in disguise- railway, posts)
- on the judicial side they realised they had to be liberal and transparent and for the first
time they realised they had to adopt the principles of natural justice
- they also realised they had to understand the local system
- they had to break the image that the British didn’t favour themselves
- so they came up with a less complex and less biased Code, the present CPC- 1908.
 They needed a more amicable method of rule. They couldn’t rule with an iron fist. If not
in political arena, in courts at least.
 Objects:
1. the litigant should get a fair trial in accordance w the principles of natural justice
2. expedited trials and early disposal of litigation in courts
- the cause of frustration among the people is not the outcome but the mechanism. If the
process if lengthy, frustrating then it annoys the masses and the confidence in the
judiciary decreases. If the judgment is given after 17 years it will lose its relevance. Thus
they applied the doctrine of justice delayed in justice denies
3. They simplified the language with acceptance of local customs and rituals
(these three are the broader aspects of the CPC, every order is aimed at fulfilling these three
objects)
 After India attained freedoms and brought about certain changes because princely states
done away with and Indians would now rule themselves
 Amendments:
 1. 1951-52 – Name changing system- certain reforms brought only to change name. 2)
Greater concept of autonomy
2. 1976- CPC Amendment Act, 1976
a) doctrine of res judicata was made more effective and simplified. Initially the
doctrine wasn’t as we see it now through this amendment it was changed.
People didn’t understand the concept of res judicata and the courts felt the

6
 same matter was coming again and again and they decided they need to have a
finality to an order. Initially the doctrine was not that heavy and the courts
weren’t taking it into account
- the doctrine of res judicata in the present form was evolved in 1976
b) the power to transfer cases from one HC to another was being given to SC
- the cause of action or the actual dispute arisen in some other state or party residing in
another State and by mutual acceptance by both parties they can ask SC to transfer it to
another court.
c) Till 1976 there was no timeline to decide cases. Once matter brought to court,
summons issued,, the other party will file statement, if no then case wont
progress, court will wait for certain period of time and still if the other party
ignores will the court make it ex-parte (no change in normal proceeding, apart
from that the other lawyer isn’t there so cross-exam will be hard, judge will
act as the lawyer, he is duty bound to check all facts from the other part, check
what is being said by the council and only then come to a conclusion)
- they changed it saying that this cannot be done at the free will of the parties and the court.
- The time for submitting written statements (1-3 months) after issuance of summons, filing
of affidavits, submitting the names of witnesses and list of evidences, etc., was prescribed
by the CPC through the 1976 amendment act. However, they were not strictly
implemented. If these weren’t prescribed then the judges had no basis of rejecting an
application as the lawyer can claim that the judge is biased towards one of the parties.
Lawyers could use any excuse to not file on time.
- Sometimes the subject matter may not be imp enough to be heard for a lengthy time and
sometimes the parties might agree to hear the case in an expedited manner so in this case
they introduced summary trials. The scope of summary trials was widened w scope of
newer subjects within its ambit.
d) S18 of the code said that if one has to file a suit against the govt is proper proc
is reqd, which is an approval, req of a notice. Reason- law made during British
time and they didn’t want to be sued easily.
- they changed it such that notice was still reqd but it was now only reqd to initiate action
not a protection
- the prov of notice under s18 (suits against the govt) was relaxed and simplified.
e) Freedom from attachment of salary was granted.
- Attachment- they attach the property saying that unless the get the actual amt
of loan or interest then only would they return the property. There used to be
attachment of salary. A civil litigation might go on for compensation to be
made at the end of the matter. If you fail in litigation and you fail to pay it then
how would you. The other party might not have means to pay the money at
that tine so the court attaches the property so that he cannot lose the money
and not pay as the purpose of justice wouldn’t be served otherwise.
- const says that r to life and livelihood includes the same w human dignity.
They thus said attachment of salary should be removed as this is taking away
his means of livelihood. It came up that what if there is not money to pay the
other party at the end of the loan so they said you can go up to 50% maximum,

7
 just like a loan. Earlier any amt could be attached but attachment of entire
salary is depriving him of r to life and human dignity. Now attachment of
salary can only be done in the rarest of cases where there is absolutely no
other option to pay back
 The backlog of cases became a serious issue after this and they felt that this Code made
it a very long process. They said it was 5 years for a normal litigation process, resulting
in backlog, so they felt they must address
 Justice Malimanth Commission was established, in his report he pointed out that there is
a huge drawback in the form of adherence to the timeframe in CPC.
 Salem Advocates Bar Asscn Case 1 ( ) and 2 ()
 The above in association with the Commission brought a change in the time for deciding
cases with time limits for every stage of civil litigation. Prescribing time limit for every
phase of litigation.
4. 1999 and 2002-
 came after the two Salem judgments . These introduced amendments to avoid the backlog
of cases. The Curt called out lawyers as they contributed to delaying the cases
a) Issue of adjournment had become v imp as it was granted to anyone and
everyone, even if no valid reason for the same.
- if adjournment is to be granted, there must be some uniform parameters for granting
them. In a civil suit, more than 3 adjournments should not be granted. Discretion of court
to interpret facts and circumstances and thus may deviate from this route to a certain
extent, thus must be done w proper reasoning and w recording of grievances for the same.
- Must be clear what the judge has done in this context and how he is approaching the
matter
- Reality: there is no civil suit foll. The rule of 3 adjournments. Only thing after this rule is
that seeking adjournment on foolish grounds has stopped (improvement of grounds of
giving adjournment). They can still grant adjournments as discretion has been giving to
them to interpret the facts in isolation to any other matter.
- Water tight provisions cannot be given to civil law. The court is entertaining the matter
and any future circumstance may not be foreseen by the courts and thus a blanket no
cannot be given. Ine very situation the court has to face a new issue.
- The deviation to be recorded and to be in consonance w normal parameters used in the
appl in previous cases. Eg- shouldn’t be lenient enough to grant on contributory
negligence of both parties.
b) Time limit prescribes for filing of written statements and objections and was
asked to be strictly adhered to or abided by the court except circumstances
accepted in the court and the reasons for the same have to be recorded.
- time limit for written statements: 30 days within date of receipt of summons. Thus it helps
the court in understanding within 30 days whether there is a matter or not. If the party
doesn’t contradict any of the facts in the statement then the court will not have to go into
details about that matter.
- If incident w blood relation in the fam (parent, child, etc., not distant relation) then can be
used to ask the court for an extension

8
- Thus now written statements are coming to the court at the earliest possible instance.
c) Out of court settlement provision has been simplified and relaxed
- out of court settlement means the court does have a role but they don’t follow the
procedures and don’t hear the merits directly
- the parties may arrive at a compromise and agree on certain things and then produce it to
the court. The court will check the elements in that- not go against the est principles of
law, make sure no party Is forced into giving consent (principles of fairness- might give
consent but do not understand the consequence of it), in accordance w major procedures
and law of the land, etc (any other defect). They will then issue that as a judgment if all
flaws corrected etc. Only thing being saved is the actual interpretation n court isn’t done.
This is done as the parties want early disposal of their cases.
- OoCS can be appealed theoretically however if that will be accepted is the question as it
has been arrived at by mutual consent. Judicial estoppel as they agreed to it. Also, since
based on mtual agreement then grounds of appeal reduced.
- Statutory rights are not absolute. Further, it is given birth only by a statute and taken away
by that statute alone. If statute doesn’t grant specific right to appeal then cannot claim this
right . FRs can be amended but cannot be taken away completely. No of appeals isn’t a
matter for discussion in courts, it is according to the law. The concept of third appeal was
taken away (appeal at the same court, eg- appeal goes to a division bench of a certain no.,
etc)

1. CASES RELATING TO OBJECT OF THE COURTS AND WHAT IS THE COURT’S

STANCE ON THE SAME:

I. Ganesh Trading Co. v Mojiram (AIR 1978 SC 484)

SC stated that a procedural law is always in aid of justice and act as subservient to the
substantive law. Nothing can be given by a procedural law what is not sought to be given by
a substantive law and nothing can be taken away by the procedural law what is given by the
substantive law. (they are saying that the act is always serving the cause of justc. When there
is a contradiction, substantive law prevails)

II. Syed Muhammad Bakar v Abdul Habib Hasan (AIR 1998 SC 1624)
Same as above case

2. INTERPRETATION OF CPC:

I. State of Punjab v Shyamlal Murari (AIR 1976 SC 1177)

The SC stated that procedural law isn’t supposed to be direct but as a supplement to the cause
of substantive law, in order to further aid substantiate the aid of justice. Where the non-
compliance though procedural in nature , thwart the concept of fair hearing or prejudice the
doing of justice to the party, the rule becomes mandatory. But grammar apart, if the breach
can be corrected w/o injury to a just disposal of the case, we should not enthrone a regulatory
requirement into a dominant desideratum.

9
(the Court says that though the previous judgment- proc law subservient to subs law but when
non-compliance the proc law compromises the aspect of fair hearing, the rules of proc law
becomes mandatory. If law suggests in this context right to sue for remedy and filed plaint in
court but proc says that interim measures wont be provided and call opp party for issuance of
summons and here issuance becomes a mandatory rule, if summons not issued then fair
hearing will not be done as the other party wont know a case has been issued against him. For
fair hearing and fair trial, you have to ensure it takes place, even if it takes time. Thus through
this judgment the court made procedure of several laws, including CPC, mandatory. Can
understand why civil litigation takes time)

3. BASIC TERMS AND ESSENTIALS OF CPC

1. Decree
 It will be a piece of adjudication, which will be formal in nature (in writing and declared
in open court and coming w the seal and authority of the court. Not an oral or speaking
order of the Court). It will give finality to all or some rights. [all these essentials give the
defn of a decree].
- arbitration is called an award unless executed by a civil code. Only a civil court or any
forum which is by law recognised at par w civil court and its power ins enforceable wrt a
civil court
- If it only gives finality to one right it still is but might be a preliminary decree. All types,
including preliminary and final decree are applicable.
 You either execute the decree or you challenge it. Thus for convenience of the parties it
will include all the rights as otherwise the parties wouldn’t be able to challenge.
 Judgement will hold the substantive value, decree: application of the law.
 If something is not determined w finality, it will be anything but a decree. Necessarily
have to get finality on all the issues or any one of them.
 An order of the court declaring no case made out from a plaint it means the court has read
the plaint, applied the legal situation and enforcing legal right and has decided cannot
continue the hearing and rejects it and this becomes a decree. By saying that there is some
defect due to which it cannot be introduced then this isn’t a defect, it can be brought back
after rectifying the defect. In the first instance, there is adjudication that there is no merit.
In second instance, not gone into substance of the law/issue.
 S2(2)- decree
- this section suggests that decree will be a formal expression of an adjudication as regards
to the court expressing it, conclusively determines the rights of the parties with regard to
all or any of the matters in controversy which may be either preliminary or final. It shall
be deemed to include the rejection of plaint but shall not include 1) any adjudication from
which an appeal lies as an appeal from any order 2) an order of dismissal of suit for
default.
 An order is something the Court says with respect to names of parties, etc (other
procedural issues) but no actual rights of the parties are determined. There are two

10
 types of orders- appealable and non-appealable. Only test of determination of decree
is all the features in s2(2) being fulfilled verbatim.
 Imp. Elements of decree:
1. Adjudication of a civil court

I. Madan Naik v Hansubala Devi (AIR 1983 SC 676)

For a decision of a court to be counted as a decree, there must be a judicial determination of
the matter in the dispute. If the determination isn’t judicial in nature or the court has not
applied its judicial mind or prowess, it may not be referred as a decree.

2. Adjudication must take place or must have been done in a civil suit.
- CPC remains silent on it

III. Hansraj Gupta v Official Liquidators of Dehradun Musoorie Electric Tramway

Co. Ltd.
Part of the discussion was meaning of suit as the law didn’t define suit. The matter was
pending before Privy Council and they decided that : suit ordinarily means a civil proceeding
instituted by presentation of plaint. (thus if starting point isn’t presentation of a plaint then
that will no be called a suit and the judicial adjudication will not be termed as a decree)
The above was concurred by the SC in:

IV. Diwan Brothers v Central Bank of India (AIR 1976 SC 1503)

How to come to the conclusion whether suit or not. The SC stated that “for the purpose of
s2(2) of the court, a proceeding may result into a decree if it is prescribed or provided in a
suit. Thus, a decision of a tribunal may be referred as a decree in a proceeding referred as a
suit but may not be a decree for the purpose of s2(2) if it is not commencing by presentation
of a plaint.

3. Rights of the Parties

- Suit instituted for declaration of the substantive rights of the parties. But apart from this,
other rights like procedure is also involved (certain procedural rights decided in your
favour, eg: allowing a third party to be part of the suit). But decree only if substantive
right, for procedural right it is an order
- The word right included for the purpose of s2(2) aims to include only the substantive
rights of the parties and not merely procedural rights. Thus an order for dismissal of a suit
for default of appearance or an order refusing the status of informa pauperis are not
referred to as decrees.

V. Dattatraya v Radhabai
Pronounced by Bombay HC. If you talk rights of parties you include substantive rights not
proc rights. The decision in respect to rejection of app due to applicant being informa
pauperis is an order not a decree.

4. Conclusive Determination

11
 VI. Jethanand & Sons v State of UP (AIR 1961 SC 794)
The court has given a decision in rest to conclusive determination. “The determination of the
rights in the court must be final and conclusive as regards to the court passing it. A
conclusive determination may only determine conclusively the rights of the parties involved
therein and may not be intended to dispose off the suit.”

 Decisions referred as decrees:

1. Dismissal or appeal of suit for want of evidence
2. Dismissal of appeal as time barred – condonation of delay
3. (copy notes from ex book)

 In the context of prelim decree for executing in favour of party, there are two ways.

VII. Shankar v Chandrakand (AIR 1995 SC 1211)

GO THROUGH FACTS
A leading judgment. In the context of prelim decree becoming final, the court said there are 2
ways : A prelim decree is one which declares rights and liabilities of arties leaving the actual
result to be worked out in further proceedings which would be as a result of further inquiries
conducted pursuant to preliminary decree leading to the comprehensive determination of all
the rights in question. Such prelim decree can become final in two ways:
1. When the time for appeal has expired w/o any appeal being filed against the prelim
decree or the matter has been decided by the highest court. Now party doesn’t have a
statutory right to appeal.
2. When the time for appeal has expired w/o any appeal being filed against the prelim
decree and the same stands disposed completely off by the time the party realised he
should appeal.
- here the court suggests that even if prelim decree, has to final so parties can go for
execution of the same.

VIII. Moolchand v Director, Consolidation (AIR 1995 SC 2493)

The SC stated that where an adjudication decides the rights of the parties w regard to all or
any of the matter in controversy but doesn’t completely dispose off the suit, it is referred as
prelim decree. It is a stage in working out the rights of the parties which are to be finally
adjudicated through a final decree and till then the suit continues.

Execution of prelim decree is only when limitation period is over and the matter us decided
by the highest court.
If nothing is prescribed the CPC then the court can exercise its inherent powers for the cause
of justice.
The court would not want to have several decrees as opposed to one final decree as this
involve execution as well and the execution proceeding will take time, more effort, etc. The
court will go for prelim decree mainly in suits for partition and family rights as well as
dissolution of partnership as well as sale of mortgage property.

12
Deemed decree:
In the context of any order, anything left out of the coverage of the decree but if the court
deems fit that itxan be used to execute a decree it can use it as a deemed decree.
Eg- rejection of plaint
It is a term used to create a statutory fiction for the purpose of extending the meaning to aid
which otherwise expressly was not prescribed to it.

IX. CIT v Bombay Port Trust Corp. (Privy Council judgement)- 1939
Deemed implies any statute in respect to a apreson or a thing as a particular status of a
particular person or thing associated with that person after due consideration. (court is oaying
attention to the status of the person and determines

X. East and Dwelling Co. Ltd. v Finsbury Bureau Council (English Judgement)- 19
The court is suggesting that the statute says you must imagine a certain state of affairs. It
doesn’t say that having done so you must cause or permit your imagination to boggle when it
comes to the inevitable corollaries of that state of affairs.

XI. Cambay Electric Supply Industrial Co. v CIT (AIR 1978 SC 1099)
If you are giving certain status recognition or order recognising indirectly a conclusive right
of a party you hold it on the same footing as decree.

2. JUDGMENT
a) Concise statement of facts which is included in the judgment which is leading to points
of determination for giving the judgment. A decree has no concise statement of facts, it
will only give the operative aspect
b) Reasoning
- when appealing you appeal against the decree per se but you are actually appealing
against the reasoning of the decree which is the judgment
 Relevant prov- s2(9) [Judgment is the statement given by the judge of the grounds of
decree].
a. concise statement of facts
b. point of determination
c. decision on such points of det.
d. Reasons
 The above characteristics will not be applicable to Small Causes Court as they are not
bound to prescribe concise statement of facts and reasoning.

I. Balraj Taneja v Sunil Madan (AIR 1999 SC 3381)

Dealt with judges not prescribing reasons for judgment:
- there would be no grounds of appeal as reasoning wasn’t there
- the reasoning of the decision descries the actual point which acts as the last hammer in
deciding the case
this contributed in deciding on the importance of reasoning in a judgment

13
The Supreme Court stated that a judge cannot merely say “suit decreed” or “suit dismissed”.
The whole process of reasoning is to apply the intelligible mind on part of the judge while
applying the law to the facts and merits of the case.

3. ORDER
Discussing the procedure of the court
Order means the formal expression of a decision of civil court which is not a decree, which is
founded on objective consideration and as such the judicial order containing the question at
issue for deliberation.

Similarities between order and decree

1.   Both relate to matter in controversy
2.   Both of them are adjudication of a civil court.
3.   Both of them are formal expression
 
 
ORDER DECREE
1.   Order does not provide conclusive Decree provides conclusive determination
determination to of any the right in of matters in question.
question.
2.   Mere application is sufficient to get an
Decree will only be passed in a civil suit
order, presentation of plaint is not which has commenced with presentation of
necessary. plaint
3.   No such requirement as to whether it has
Decree may be- preliminary, deemed, partly
to be preliminary or deemed. preliminary, partly deemed.
4.   There may be multiple orders. In a civil suit there will be one final decree
and more than one preliminary decree. 
5.   Orders may be appealable or may not be Decree is always appealable in nature.
appealable in nature.
 
Decree holder and judgment debtor.
  
Foreign Courts:
 Established by or carried on by the govt. of india.
 Legislature or/& parliament have to the power to establish a court in India or outside
India with the permission of that country.
 This is because the people are electing the members of the parliament and the people have
the power. Further, parliament allocates and distributed funds therefore the power to
establish a court is in the hands of the parliament.
 Foreign court means a court situated outside indiaand not established or continued by the
authority of the central govt. s2 (5)
 

14
 I. Lalji Raja & sons v Firm Hansraj Nathuram AIR 1971 SC 974
Thus the courts established in england, Burma, Pakistan , Afghanistan, Bangladesh and
Ceylon and privy council are not recognized as indian courts as they were part of undivided
or uniform india.

4. MESNE PROFITS
 Occupying property without the consent of the owner. The cost of enjoying (either
personal purposes or actual commercial profit) need to pay back to the owner. The
mesne profit is the amount paid back to the owner.
  The ordinary usage of the property despite special factor present that might result in
greater rents. 
 Calculation of mesne profits: the usage based on the ordinary usage or the usage
which a man can reasonable foresee. Standard rate of the property will act as a
parameter for identifying the mesne profits.
(copy from ex book
Interest case-

I. Mahant Narain v Tirumali Tirupathi Devasthana

Interest is an integral part of mean profits, which has to be allowed in the computation of
mean profits itself. The rate of interest remains at the discretion of the court subject to the
limitation that the said rate shall not exceed 6% p.a. and the interest may be allowed till the
date of payment of mean profits.

XII. Dakshina v Saroda

Old Privy Council judgment (1894). How to calculate mean profit? The mean profit normally
means net profit. Amt incurred in gaining that net profit can be deducted in order to compute
the net proft and that is payable to the court.
While awarding mean profits, the court may allow the deductions to be made from gross
profits of the defendants such as land revenue, cess, cost of cultivation, charges incurred and
ultimately the net profits will be awarded.

5. AFFIDAVIT
 An affidavit is a declaration of facts reduced to writing and affirm and sworn before an
officer having authority to administer oaths. It should be drawn up in the first person and
should contain his statements and not questions or inferences. [you only declare and write
affirmatory sentences. You don’t infer something or ask questions, etc.]
- oath commissioner: person entitled to administer oath (take stamp paper, sign, etc.) he
will write a certain no in his reg and it will say that so and so person has taken an affidavit
etc.
- It will always be in first person, never third person. You cannot swear in the name of
someone else. Swear for the existence of a certain fact or incident you would like to abide
by

15
6. APPEAL
 Judicial examination of the decision of an inferior court by a higher court.
 It is considered to be a remedy which is created by a statute and until a statute clearly
grants it, it cannot be claimed by the person.

7. CAUSE OF ACTION
 A bundle of essential facts reqd to be proven in any case if you want a favourable order
(get a decree from the court). These facts which suggest or contravene the law and you
have to prove such contravention, that fact becomes the cause of action.
- necessary for a plaintiff to prove before he can succeed in litigation. A plaint filed by the
plaintiff has to necessarily disclose cause of action otherwise there would be rejection of
plaint by the court which will be a decree.
- Thus cause of action is essential. Ultimately to be proven w/o any compromise

8. CAVEAT
 An application to the court tha please do not move an inch in the matter w/o hearing our
side first
 Caveat is an official request that a court shouldn’t take any particular action w/o issuing
notice to the party lodging such caveat and w/o affording an opportunity of hearing him.

16
 MODULE 2: JURISDICTION OF CIVIL COURTS

Ubi jus ibi remidium where there is a right there is a remedy

Civil law provides certain rights and prescribe certain aspects of procedure, they can’t work
in isolation in any forum. this is because, every time a right is given the authority is given that
he can contravene for the upholding of the right. It gives a forum to actually protect the rights
and the authority of the individual to move to a forum to secure the right.
Power to pass & prepare the law- legislature
Power to test the law- judiciary (interpret the law)
The power or authority to entertain the right and pass an order is given to a court or any other
forum.
Basic test of deciding a law is- when a right is made, the authority of the court to entertain the
rights and pass an order in order to secure the law is present or not.
If the court goes beyond its jurisdiction-Whether the court is empowered to hear the matter
i.e- if the legislature has given the power or not.
If the court does not have the jurisdiction or the power of the law but still continues with the
proceeding, the existence of any order passed will become null.
If the law or statue has specifically stated that a court shall not have jurisdiction over certain
matter, the court can’t interpret it in another manner.

S9- intends to give every civil the power to entertain all civil matter expect in cases where
there is implied power.
This is because separate tribunals have now been created which are governed by their own
laws. The court thus ceases to have jurisdiction, and the legislature has the power to make the
laws for the separate set of courts or tribunals.

Main reason for the establishment of the tribunals was to ensure fair and speedy trial and if
the matter is going to be passed on to the civil court, then it defeats the purpose therefore in
cases where the matter has to be passed on to the court, it passes to the high court.

Lack of jurisdiction—no jurisdiction from there day 1- nullity.

Irregular jurisdiction –
- jurisdiction was there but was exercised irregularly, or one went slightly beyond their
jurisdiction or decided a matter which went beyond its power or jurisdiction.
- when this happens, it is the duty of the parties to raise the point that the court is going
to go beyond its powers.
- If one does not raise an issue, the higher court will consider the decree to be valid as
the bona fide intention is missing.
- Moreover, if the party does not raise the point at the earliest possible instance and
raises it at a later stage deliberately thinking that the decree will become null, this
does not take place as nullity only takes place in lack of jurisdiction.

17
 Imp. At the time of framing of issues or at the earliest possible instance.

This is because the party cant plead ignorance as the party chooses to remain silent the court
presumes that there is deliberate intention.

No clear-cut explanation of the term “earliest possible instance”, it varies from case to case.
Therefore, one can raise the point in any instance if the party is able to prove that this
instance is the earliest possible instance available.

Decree contains several aspects but which portion can be challenged in a court is decided by
the jurisdiction of the court.

Imp. Challenge on ordinary grounds exists in certain cases.

Types of jurisdiction
1. Territorial
2. Pecuniary
3. Subject matter

I. Abdul Waheed Khan v Bavani (AIR 1966 SC 1718)

The Court stated that a litigant having a grievance of civil nature has a right to institute a civil
suit in a competent civil court unless its cognizance is either expressly or impliedly barred by
any statute. A suit for its maintaibaility doesn’t require any authority of law and it is
sufficient to prove that no statute bars it.

XIII. Gangabai v Vijay Kumar (AIR 1974 SC 1126)

(stated what was said in Abdul Waheed Khan)

a suit is always maintainable only if there id an expressed or implied bar only then will the
jurisdiction aspect arises.
Jurisdiction= juris + dicto

Meaning of jurisdiction: (as discussed before)a

XIV. Union of India v Tarachand Gupta and Ors. (AIR 1971 SC 1558)

XV. Official Trustee v Sachindra Nath (AIR 1969 SC 823)

Referred to the doctrine developed in Anisminic Ltd.

I. Anisminic Ltd. v Foreign Compensation Commission (1969) 1 All E.R. 208 / 1969 1
AC 147
This case developed the doctrine for the first time. While going onto juris, discussed the auth
of court to go into jurisdiction. It said that a court can be held to have a jurisdiction to decide

18
 a particular matter where it must not only have the jurisdiction to try the suit brought before it
but also should have the powers to pass the order sought for a as relief. Jurisdiction must
include in its entirety all the powers to pass necessary relief which may arise ordinarily out of
the subject matter at hand or which may help to decide the matter sin controversy b/w the
parties. Jurisdiction is your power to pass orders .

XVI. Ujjambai v State of U.P. (AIR 1962 SC 1621)

The case of Ujjambai highlighted the general understanding and meaning of jurisdiction.
“Jurisdiction means the pow or auth of court of law to hear and determine a cause or a matter.
It is the power to entertain, deal with and decide a suit, an action or a petition or any other
proceeding. The units of jurisdiction include subject matter, pecuniary value and local limits.

The gen rule of appl of relief remains that if I am asking for more than one counts of relief,
the court must be competent to award me all, some or any of them. But the court cannot go
beyond what has been asked for by the party.

XVII. Dhirendranath v Sudhir Chauhan (AIR 1964 SC 1300)

If the court has no inherent juris to try a particular matter, neither acquiescance or waiver or
estoppel can create such jurisdiction. A fundamental defect of jurisdiction cannot be cured by
the consent of parties and the order of the court, howsoever precise it is can be challenged at
any stage if it carries the defect of lack of inherent jurisdiction.

XVIII. A.R. Antulai v R.S. Nayak (AIR 1988 SC 1531)

It is the authority of the legislature to legislate and assign juris to any court but the pow to
interpret the law and decide whether they have juris or not lies by the court.
Eg where court has expounded the legislature and reduced the role of locus standi- PIL
The power to create or enlarge jurisdiction is legislative in character and also the power to
confer a right of appeal or to take away the right of appeal is legislative in nature. No court
whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest
a person of his rights to appeal or revision.

Exxtolo malo non oritor actio :

XIX. ABC Laminad Pvt Ltd. A.P. Agencies (AIR 1989 SC 1239)
Q- can a law completely take away the juris of the court? Can it go to the extent where it
grants juris to no court (right to appeal isn’t available in any court, right to juris taken away
and not vested in any other court)
A- this cannot be done except on the grounds of public policy and order. This is the meaning
of the maxim: Exxtolo malo non oritor actio [literal meaning: an agreement to oust the
jurisdiction of a court absolutely would be treated as unlawful and void and is itself regarded
as contrary to public policy

19
XX. Kiran Singh v Chaman Paswan (AIR 1954 SC 340)
(This judgment hold good still and hasn’t been overruled on the aspect that no matter how
much we discuss juris, if the court passes an order w/o juris it will be null. Even the appellate
court cannot go down and say that it was valid, it will always be a nullity and cannot be
regularised.)
 It is a fundamental principle well established that a decree passed by a court w/o
jurisdiction, is nullity and that its invalidity can be enforced or set up whenever and
wherever it is sought to be enforced, including the stage of execution proceedings.
 A defect of jurisdiction strikes at the very authority of the court to pass any decree and
such a defect cannot be cured even by the consent of the parties. [if the court has
passed a decree and due to certain reason both parties abide by the decision, if it
comes to the notice that the decree was passed where there was defect of juris then
such consent will be immaterial].

XXI. Ittyavira Mathai v Varkey (AIR 1964 SC 907)

Q- validity of the decree was challenged as suit was time barred. If aw of limitation was
applied, it was otherwise time abrred so decree passed by court not valid.
SC- if the suit was barred by time and the court has yet decreed it, the court would be
committing an illegality and the aggrieved party would be entitled to have such decree set
aside by preferring an appeal. If the party aggrieved doesn’t take appropriate steps to have the
decree corrected, or have the error corrected, the erroneous decree will hold good and will not
be open to challenge on grounds of being a nullity. [A court proceeding on a matter w/o auth
then such decree is invalid but in the context of limitation, the suit was time barred but it
wasn’t the case that the court never had the auth to try it, if not time barred, the court
otherwise had right to determine it. This isn’t a deviation, it is giving a new dimension. Court
committed an irregularity but if no corrective steps by the party then the irregularity will hold
good.]

 The plaint suggests what should be the jurisdiction. Neither def nor the parties decide the
juris. The basis to formulate juris lies on the basis of the plaint. Whatever juris suggested
by the party who approaches forms the basis of investigating the basis of jurisdiction.
This is because this is the aggrieved party. If the court goes by logic of defendant, it
won’t work as the job of the def is to always negate the contention of the plaintiff. Thus
only the latter has to prove whether this court can grant appropriate remedy or not. The
court will look into the objection if any (after first looking at the plaint).
 Null proceeding- lack of inherent juris (only when this is the case can you raise objection
to juris even at a later stage). Otherwise, earliest possible opportunity. Has to prove that
when he is raising objection, that this was the earliest possible opp that he could raise this.
[otherwise general and specific rule- till the time of raising the issues].
 The jurisdiction could be a question of fact or one of law. Territorial juris- Suppose a
prop is situated at a border of Jodhpur, once investigated it is proved that it is in Pali.
Thus it is one of fact. Subject matter juris- question of law as you have to check whether

20
 express or implied bar according to CPC. [in the former eg, the plaint brings the area of
contention thus it proves that the plaint forms the basis of deciding territorial jurisdiction].
 Plaintiff has to prove that there is a cause of action and the jurisdiction supports that cause
of action [because he has to prove the cause of action, he has to prove the jurisdiction].
 General rule of presumption: court has jurisdiction over the matter
 Sessions Court takes the longest time as it is the court of first instance.
 Basis to determine juris (3 below):

XXII. Abdullah bin Ali v Galappa (AIR 1985 SC 577)

It is a well settled principle that for deciding jurisdiction of civil court, the averments made in
the plaint are material. The defence put up by the defendant in his written statement may only
lead to the objection of such general rule of presumption. It is also well-established that while
deciding the jurisdiction, what is imp is the substance of the matter and not the form. The
plaintiff is duty bound not to circumvent the provisions of law in order to invest jurisdiction
in civil court which it doesn’t possess.

XXIII. Begum Sahiba v Nawab Muhammad Mansur (AIR 2007 SC 1636)

XXIV. Bank of Baroda v Motibhai (AIR 1985 SC 545)- Imp.

This case settles the issue of what should the court look into. Whether the content of the
presentation of the content.
In this case, a simple case of loan. He bank will ask for collateral as security whem applying
for loan. When you furnish this, bond signed b/w you and bank that you are giving this as
security and In case of default,, bank has the right o get proceeds from this prop. In this case,
all of this was complied w but when the person didn’t ay the emt, the bank sued the person
that he is not returning the money so to pass a decree to sell the prop or pass rder to return
money in specific time, The person said the deed said the right was less than ownership (only
possession) so the bank is the tenant. So it is a matter of clemency not of ordinary civil court.
The court said that general work is iving loan on the basis of collateral, if they become tenant
for every collateral then itll only be a tenet and never have any right to any prop. They looked
into the fact that the bank did not want any other relief, only the payment of money. U/s 9 of
CPC nothing bars the court from making it a civil suit/. Thus argument was not accepted, said
it was their duty not to go into content but the for. The content made it a money suit. Basic
rule- going to content not form

XXV. Ananti v chhannu 1930 allahbad HC

XXVI. Topan das v gorakhram AIR 1964 SC 1348 (case (a) was referred in this case)
The plaintiff chooses his forum and files his suit if he establishes the correctness of the facts,
he will get his relief from the forum choosing. If it is found on a trial on the merits so far as
the issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts
alleged by the defendants are true, and the case is not cognizable by the court, there may be 2
kinds of orders passed.

21
 1) If the jurisdiction is only related to territorial or pecuniary limits, the plaint
will be ordered to be returned for presentation before the proper court.
2) If on the other hand it is found, that having regard to the nature of the suit, the
suit is not cognizable by the court to which the proceedings belong, the suit
will be dismissed in its entirety.

Delhi district court pecuniary jurisdiction was increased so that the burden on the higher
courts is reduced as the 1st investigation is done in the district court. Further, the matters in
the high court, could now be referred to in the district court.

In cases of subject matter courts have been more serious and returning of plaint to lower court
does not take place.

Whenever the jurisdiction of the court is challenged that the court has inherent jurisdiction to
decide the same questions. Every court or tribunal is not only entitled but bound to determine
whether the matter in which it is asked to exercise the jurisdiction comes within its
jurisdiction or not.

XXVII. Bhatia Cooperative Housing Society ltd v D.C. Patel AIR 1953 SC 16
Court not having jurisdiction does not mean the court does not have to the power to
determine the same. Only that court alone will decide if they have jurisdiction or not, some
other court can’t decide this.
First initial case which held that the court alone will decide whether they have jurisdiction or
not.

Various narrower types of jurisdiction: (read on your own)

1. Civil and criminal jurisdiction
2. Territorial jurisdiction or local limits jurisdiction
3. Pecuniary jurisdiction
4. Subject matter jurisdiction
5. Original and appellate jurisdiction
6. Legal and equitable jurisdiction
7. Municipal and foreign jurisdiction (extra territorial jurisdiction)

Sec9-
 all civil matters can be brought before any civil court but based on the fact whether it
is expressly barred or impliedly barred.
 Certain conditions have to be fulfilled and when these conditions are fulfilled the
court decides the jurisdiction.
 The conditions suggest that there should be an expressed or implied bar and both the
conditions have to be fulfilled in totality.

22
  Further if there is any conflict or doubt on the condition the court will have
cognizance as every suit of civil nature has cognizance by a civil court.

1. Expressly barred- the statue itself gives away the jurisdiction to another court or
forum. it is there to a certain law or statute.

2. Impliedly barred- one interprets from the existence of a fact whether the jurisdiction
of the court is valid over here or not or interprets from the law passed by the
legislature.

 In case of overlapping of jurisdiction, then whichever court takes up the matter first
will have the jurisdiction.

S9- A civil court has jurisdiction to try a suit on the basis of two conditions, a) the suit must
be of a civil nature b) The cognizance of such a suit should not have been expressly or
impliedly barred.

Matters regarding carrying out of religious procession, elections, matters related to FR etc are
not matters of the civil court.
Eg- When the matter is regarding encroachment of a waqf property goes under the
jurisdiction of the civil court but administration of the waqf property will not be under the
jurisdiction of the civil court.
Eg- Recovery of money due to failure of payment by the temple trust will fall under the civil
matter. Further for the appointment of a chief priest from a particular community with
interpretation of rituals and customs therefor, it will not be a suit of civil nature.

S151- inherent powers.

Very few chances of being accepted since inherent powers are themselves have limitation.

Under sec9-
1. Prove it is of a civil nature
2. It is not impliedly or expressly barred

Suit of civil nature-

Civil court can exercise jurisdiction over a suit of civil nature which pertains to private rights
or remedies of a citizen as distinguishable from criminal or political matters or religious
matters. In a civil suit if a principle questions is of a civil nature (right to property or other
civil rights) and the adjudication incidentally also involves the determination relating to a
caste question or to a religious right or religious ceremonies, it does not cease to be a suit of
civil nature and the jurisdiction of civil court is not barred. The jurisdiction of a civil court is
decided in accordance with the principle question of the controversy.

23
XXVIII. Most rev. P.M.A Metropolitan v Moran Marthoma AIR 1995 SC 2001
Laid down by the court in a form of doctrine that even if a religious matter is intermingled
with the civil matter in order to find out if it is a case of civil nature it is important to identify
the most important question at hand and it is important to test it. Two parameters of the test
were give- 1) nature of relief sought 2) interpretation of facts.
If the principal question is of civil nature, then the matter is of a civil suit.

Suits of civil nature-

 Suits of civil nature
 Suits for damages
 Suits for right to property
 Suits for specific performance of contract
 Suits for rents
 Suits related to accounts, etc.

Suits not of civil nature-

 suits involving principle q of case revelation
 Suits involving religious rights or ceremonies
 Suits for recovery of voluntary payments. Eg- temple offerings. Etc.

A Suit is said to be expressly barred when its cognizance is barred by any enactment for the
time being in force it is open to a competent legislature to bar the civil court but every
presumption should be made in favor of the jurisdiction of the civil court and the provision
excluding the jurisdiction of the court must be strictly construed. If there is any doubt, about
the exclusion of the jurisdiction of civil court, the court shall lead to an interpretation of the
jurisdiction which would maintain the jurisdiction of the court.

XXIX. CIT v Parmeshwari Devi AIR 1998 SC 1276.

XXX. Abdul wahid Khan v Bhawani

XXXI. Bharat kala bhandaar pvt ltd v Municipal Community Dhamman Gaon. AIR 1966
SC 249.
Referred and reiterated in Dhurabhai v State of MP.

XXXII. State of Tamil Nadu v Ram Linga Samigal AIR 1986 SC 794
If the remedy provided by a statute ousting the jurisdiction of the civil court is not adequate
and all questions cannot be decided by the special tribunal as sought for relief, the jurisdiction
the of the civil court is not barred.

A suit is said to be impliedly barred when it is barred by general principals of law where
exists a specific remedy given by a statue, it deprives the person who insists upon a remedy

24
 of any other form than that given by the statute. Where an act creates an obligation, and
enforces its performances in a specified manner, that performance cannot be enforced in any
other manner.

XXXIII. LIC v India Automobiles & Co. AIR 1991 SC 884

specific performance

XXXIV. premier automobiles v Kamlekar Shanta AIR 1975 SC 2238

exclusion of civil court and its limitation

1. situation of is not to be readily inferred and such exclusions must be expressly clear.
In scenario where the jurisdiction of the court is barred, a court has jurisdiction to
examine whether the provisions of such act and the rules made there under have or
have not been complied with, or the order passed is contrary to law, malafide, ultra
vires, arbitrary, purported to be violative of principles of natural justice etc. in all such
cases the court is not bound by such Act and the jurisdiction of the civil court will not
be deemed to be ousted.

XXXV. Secretary of State v Sask and Co. AIR 1940 SC/PC 105 [read book for foundation
on jurisdiction of court to oust]

XXXVI. Firn State Radha Krishan v Administrator Municipal Community Ludhiana AIR
1963 SC 1547
the court has stated a suit in a civil court will always lie to question the order of a tribunal
created by a statute, even if its order is expressly or by necessary implication made final, if
the said tribunal abuses its power or does not act under the Act but in violation of its
provisions.
General principles of exclusion of jurisdiction

XXXVII. Dhulabhai v State of M.P

The court, in the context of analysing whether civil court has juris and whether that juris is
barred, will check what is the existing posn of law as leg is empowered to curtail juris of
court or tribunal.
This case elaborated on aspect of juris and laid down certain principles acting as guideline for
all the matters of jurisdiction.
General principles of exclusion of jurisdiction:
1. Where a statute gives finality to the orders of tribunals, the civil court’s jurisdiction
must be held to be excluded if there is adequate remedy to do what civil courts would
normally do in a suit. This principle will not apply if the tribunal has not acted in
conformity w the fundamental principles of judicial procedure.

25
 2. Where there is an express bar of jurisdiction of a court, an investigation to find the
adequacy of remedy provided under the Act may be relevant but this isn’t a decisive
test for sustaining the jurisdiction of a civil court. If a statute creates a special right or
liability then in that case all the questions associated w the right and liability so
created shall be adjudicated by the tribunal so constituted and the intervention of civil
court on grounds of inadequacy may be possible only if there is no remedy attached w
such right.
3. Challenge to the provision of a particular act as ultra vires cannot be brought before
tribunals constituted under that Act.
[tribunal cannot adjudicate upon the validity of the Act w which it was established it can only
be done by a higher court of adjudication, not est by that Act. Civil Court cannot adjudicate
on the validity of a law, they can only make the matter pending.]
4. When a prov is already declared unconst., any prov under the Act may be brought to a
challenge through a suit. A writ of certiorari may include a direction in this context
only if the period of limitation is breached, but it isn’t a compulsory remedy to be
replaced through a suit.
[suppose an IT Act is challenged on the grounds of head of income to be computed and
taxed- inc from salary, business and possession, house property, other sources; challenge
brought before a competent court- discretionary, harassing parties. Court declares it to be
invalid and thus Act struck down. The above point is suggesting that when already declared
invalid, any dispute wrt what has been done by the auth under the act can be brought before
the civil court in civil suit (not the tax authorities). Approach saying that wrongly taxed, etc
thus compensation from the govt. Only in cases where period of limitation breached then
issue writ of certiorari can be issues directing the tribunal to entertain that particular matter.]
5. Questions of the correctness of an assessment apart from its constitutionality are
available as decisions only to the authorities and a civil suit doesn’t lie against such
procedures.
6. Ac exclusion of the jurisdiction of the civil court is not to be readily inferred unless
the conditions prescribed under this judgment applies.

(1 class missing)

1. RES JUDICATA
 The imp aspect is that the sole aim of this doctrine is to avoid multiplicity of suits.
 3 fold object:
1. person not to be vexed twice (not facing continuous litigation)
2. state ensure proceedings come to an end, no multiplicity , so that resources are not
wasted
3. judgment of court respected and accepted as it is (allowed to be challenged to a
certain extend but not beyond)(court given due respect)
[this three-fold objective serves – public policy : last 2 points and pvt interest: first point]
 Aiming at conclusiveness of judgment, decide one judgment for one suit is enough
- Privilege of king that will make a decision final and binding [maxim of roman law
talking about the same aspect of res judicata ]

26
  Effective test of construing res judicata is looking into diff dimensions: (?)
1) who decided
2) time frame -when decided
3) which court decided it
4) parties
 look into issue at hand and the substance and not the representation (could be
represented in a diff manner). Thus have conclusive framework of deciding
conclusvity of a judgment
 Res judicata from the aspect of adjudication- rule of conclusiveness of judgment and
not investigation. Adjudication imp for invoking res judicata. (cannot re-open)
 Public policy- access to justice would be denied to other parties only those people
would be getting access to justice. Immediate right of relief of the other parties would
be denies.
- More imp, court should always remain a final authority. Respect of court will go down.
- If multiple revisits to the same thing will make the situation worse for execution

 Ex captio rex judicata- one suit and one decision is enough for a single matter or a
single dispute. The doctrine of res judicata aims at conclusiveness of a judgment
where the matter is finally decided by a competent court and after such decision, no
party should be permitted to reopen the matter. In a subsequent litigation

I. Satyadhan Ghoshal v Deorjin Devi (AIR 1960 SC 941)

When a matter, whether on a question of fact or a question of law has been decided the
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 because no appeal lies at all, neither
party will be allowed in a future suit or proceeding b/w the same parties to canvass the matter
again.

[go through s.11 and the first 6 explanations given there]

Point of res judicata- finality for the time being

Need for investigating arises when you don’t understand the consequences and implications
of this. Obligation on court to understand this.
objectives of re jusidcata-
1. Nemo Debet Bis Vexari Pro Una Et Eadem Causa- no man should be vexed twice for
the same cause
2. Interest Republicae Ut Sit Finis Litium- in the interest of the state that there should be
an end to a litigation.
3. Res Judicata Pro Veritate Occipitur- a judicial decision must be accepted as correct.

27
XXXVIII. Duchess of Kingston case
Importance of this case is that they have decided the broader guideline to see if res judicata
applies or not and on what circumstances these rules will be applied.
Sir William the/de grey- he suggested that the judgment of a court in cases of civil matters is
based on two deductions- 1) the judgment of the court of a concurrent jurisdiction directly
upon the point as a plea, bar or as evidence conclusive between the same parties upon the
same matter directly in question in another court. 2) that the judgement of the court of an
exclusive jurisdiction directly on the point is in like manner conclusive upon the same matter
between the same parties is in question in another court for a different purpose.

This case finds its reference in

XXXIX. Dariyaro v State of UP case.

rule of res judicata is a rule of universal law pervading every well-regulated system of
jurisprudence and is put upon two grounds. 1) the public policy and the necessity which
makes it a matter of estate interest 2) hardship of the individual aiming and providing justice
to the same. (corpus juris 35)

Final- final/conclusiveness for the time being in forth.

Judges usually revisit to decide another matter or aspect.
Progressive jurisdiction does not stop res judicata. Further it means “from now on” it does not
include revisiting the judgments to undo it.
However, undoing of the previous judgments is not allowed or valid.
Revisit- only when there is a severe change in direct circumstances, public policy , public
interest etc.

1. Difference between Res Judicata and Res Sub Judice

RES JUDICATA RES SUB JUDICE

1. Applies to a matter adjudicated 1. Applies to a matter pending for

upon already trial.

2. Bars the trial of the suit or an 2. Bares the trial of a suit pending
issue which has been for decision with a court of a
conclusively determined competent nature.
including institutions thereof.

2. Difference between res judicata and estopple

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 I. Batul Begum v Hem Chandar 1960 All HC
The rule of estopple is nothing else but interpretation of the term constructive res judicata
where the verdict will be acting as an estopple for the court, but there exists difference
between the two terms-

RES JUDICATA ESTOPPLE

1. Results from the decision of the 1. Results from the act of the parties.
court.
2. Based on public policy. 2. Proceeds on the doctrine of equity-
which means a person who by his
conduct has induced another to alter
his position disadvantage and
cannot turn around and take
advantage of such alteration of
others position.
3. Excludes the jurisdiction of a court 3. It is only a rule of evidence
to try a case and even precludes an directing the action of a party.
enquiry in limine.
4. Prohibits a man contesting the same 4. Prevents him from saying one thing
thing on multiple occasions. at one time and another thing at
another time, which acts as opposite
to each other.
5. Presumes conclusiveness of the 5. Prevents a party from denying what
truth of the decisions in the former he once refers as a truth.
suit.

Estopple- majorly acts on he conducts where one can’t deny wants already been said
It only binds a single party.
Conduct based

Res judicata- can’t undo what was decided in the previous judgment.
Therefore, it binds all the arties
Binds the parties to a conclusive decision

Splitting of claims – (order 2 rule 2)- bars splitting of a suit into different suits which could
be decided under the same judgment. In this the second issues might not have been discussed
earlier but the issue could come under the previous issue.

3. Difference between res judicata and splitting of claims

29
RES JUDICATA SPLITTING OF CLAIMS

1. Plaintiffs duty to bring 1. Only requires the plaintiff to claim

forward all the grounds of all reliefs flowing from same
attack in support of his claim. cause of action.

2. Refers to both the parties i.e- 2. Only refers to a plaintiff and

plaintiff as well as defendant and bars the suit on such ground.
precludes a suit as well as a
ground of defense.

Res judicata- not related to relief.

Only looks into what has been presented in the court earlier.
Refers to the entire proceeding.

Splitting of claims- done only to receive multiple reliefs.

Refers to the splitting of claims to increase multiplicity in order to claim multiple reliefs.
Therefore, its more about relief.

Similarities-
Both res judicata and splitting of claims are barred.

Conditions for application of res judicata-

1. The matter directly and substantially (read the meaning) in issue in a subsequent
suit, or issue must be on the same matter which has been already adjudicated upon
directly (explanation no. 3) or constructively (proving the link by interpretation)
(explanation no. 4) in the former suit.
2. The former suit must have been a suit between the same parties or between parties
under whom they or any one of them claim. (Explanation no. 6)
3. Such parties must have been litigating under the same title as was in the case of
the former suit.
4. The court which decided the former suit must be a competent court to try the
subsequent suit or the suit in which the issue was subsequently raised.
(explanation no 2 & 8)
5. The matter directly and substantially in issue in the subsequent suit must have
been heard and finally decided by the court in the former suit. (explanation no. 5)

I. Sheo Dan Singh v Dariyao Kunwar AIR 1966 SC 1332

Matter in Issue-
This means a decision of a competent court acting as a bar on institution of the subsequent
suit where such issue may be an issue of fact an issue of law or a mixed question of fact and

30
 law. it belongs to the rights litigated among the parties for which a claim may lie. In a given
circumstance a fact is to be checked with applicable law to determine such issues.

XL. Mathura Prasad v Dosibai N B Jeejee Bhoi AIR 1971 SC 2355

Issue can be either of fact or law or mixed issue of fact and law and all three are covered by
res judicata for a subsequent suit. The job of the court is to interpret the fact in the light of
law/ circumstances and to pass a judgment.

Directly in issue-
Refers to a fact which has been involved immediately without intervention. A fact cannot be
said to be directly in issue, if the judgment stands whether that such fact exists or not. Such
interpretation is based on facts and circumstances of the given case.

Substantially in issue-
It means essentially or materially a matter being invoked in a litigation which is short of
certainty but greater than mere suspicion. Also refers as a fact in effect which may not be in
expressed terms.

XLI. Pandu Rang Ramchandra v Shanti Bai Ramchandra AIR 1989 SC 2240
Constructive Res Judicata

XLII. Workman v Board of Trustees Kochin Court Trust AIR 1978 SC 1283
When any matter which might and ought to have been made a ground of defense or attack in
a former proceeding but was not so made, then such a matter in the eyes of law to avoid
multiplicity of litigation and to bring about finality in its judgment is deemed to have been
constructively in issue and is therefore is taken to be as decided.

XLIII. State of UP v Nawab Hussain AIR 1977 SC 1680

Not contemplated or argued in the court as a matter of attack or defense, then arguing that
this is not coming under res judicata as this aspect was not argued, is not accepted and it is
barred by constructive res judicata. Since the matter is incidental under the same point and for
the judgement, then one can’t invoke it saying that the issue wasn’t expressly argued earlier.

The supreme court stated that a suit is deemed to be barred by constructive res judicata if it is
established that the plea taken in a subsequent suit was well within the knowledge of the
plaintiff in a previous suit even though he chose not to express it.

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 XLIV. Forward Constructive Co. v Prabhat Mangal AIR 1986 SC 391
The court held that the principle underlying explanation no. 4 is that where the parties have
had an opportunity of controverting a matter that should be taken to be the same thing as if
the matter had been actually controverted and decided. It is true that where a matter is raised
to be constructively in issue it was not actually heard and decided but could only be deemed
to have been heard and decided.

As a matter of general rule the doctrine of res judicata rule, similarly the doctrine of res
judicata will also equally work between co-defendants and co-plaintiffs if certain conditions
are satisfied.
1. There must be conflict of interest between co-defendants
2. It must be necessary to decide that conflict in order to give relief to the plaintiff
3. The question raised between the co-defendants must have been finally decided
4. The co-defendants were necessary or proper parties to the former suits.

XLV. Iftikhar Ahmed v Sayeed Meherban Ali

If these conditions are fulfilled then res judicata will work with the co-plaintiffs and the co-
defendants and both are bound by res judicata.

XLVI. Nottingham v Earl Shrewsbury case

If Plaintiff cannot get his right without trying and deciding a case between co-defendants, the
court will try and decide such case and which will bind the co-defendants. But if the relief
given to the plaintiff does not require a decision of any case between co-defendants, the co-
defendants will not be bound as between each other by any proceeding which may be
necessary only to the decree which the plaintiff obtains.

XLVII. Syeed Mehmoob Sahab v. Sayeed Ismail AIR 1995 SC 1205

If a party obtains a decree from the court by practicing fraud or collusion he cannot be
allowed to say that the matter is res judicata and cannot be open.

XLVIII. Iftikhar Ahmed v Sayeed Meherban Ali

For co-plaintiff- if there is a conflict of interest between plaintiff and if it is necessary to
resolve the same by a court in order to give relief to a defendant and the matter is in fact
decided it will operate as res judicata between such co-plaintiffs for all subsequent suits.

Constitutional matter (write petitions) + civil (res judicata)

XLIX. Dariyao v state of UP AIR 1961 SC 1457

Contesting the final decision of the court in cases of writ petitions.

32
Matter of res judicata and the relation with writ petition came up.
Court said that there is conclusiveness of writ petitions also and that they are also bound
bythe doctrine of res judicata. Earlier they were hesitant in saying so, as they believed this
will closes the door of justice to the parties. Doctrine of res judicata is therefore applicable to
writ petitions also.
The SC while dealing with the issue of doctrine of res judicata in writ proceedings laid down
the governing principles which are:
1. If a petition under A226, is considered on the merits as a contested matter and is
dismissed, the decision will continue to bind the parties. Unless it is reversed in
appeal or modified by the court itself.
2. It would not be open to a party to ignore the judgment under A32, by SC to moving
an original petition on the same facts and for obtaining the same order or directions on
such writs.
3. If the petition under A226 is dismissed by the high court not on merits but because of
laches’s applying for such writ or it is established that the party had an alternative
remedy to it, such decision will not constitute a bar for a subsequent litigation filing a
separate write under A32 on the same facts.
4. Such a dismissal by the court may constitute a bar under A32 if the facts thus found
by the HC becomes relevant under A32 also.
5. If the writ petition is dismissed in limine and an order is pronounced on that behalf
and such order relates to the merits of the case (no prima facie case made out), then in
such situations only it will act as a bar.
6. If the petition is dismissed in limine, without speaking order, such dismissal cannot be
treated as creating a bar of res judicata.
7. If the petition is dismissed as withdrawn it cannot create a bar on subsequent litigation
for same facts under A32.

Addition of 3 principles by:

I. Sarvuja transports services v STAT AIR 1986 SC 88

1. Rule of constructive res judicata- if some point ought to have been covered a
point/ground of attack or defense it is deemed to be included in the doctrine of res
judicata.
2. The rule of res judicata does not apply to the writ of habeas corpus.
3. The general principles of res judicata apply to the different stages of same suit or
proceedings.

What should happen in the case of ex parte?

I. Pandu Rang Ramchandra v Shanti Bai Ramchandra AIR 1989 SC 2240

Ex parte decrees are order on merits and therefore it is covered by rule of res judicata

4. FOREIGN JUDGMENTS

33
Covered by section 13 of CPC.
Meaning of foreign court-Any court established outside the territory of India, or which is not
carried on by the authority of central government.
Therefore, any judgment passed by the above mentioned is foreign judgment
Applicability will not be done directly; the courts of India will check the judgment by
checking it through principles of natural justice and the laws of the land and then it will be
see if it can be applied or not.
E.g.- all courts established in India before partition. (from Iran to Burma: initial territory of
India)
Mutual cooperation treaty- Indian govt. may establish any adjudicatory body in another
country, then the authority will be deemed to that court that the authority is being given by
the central govt. (also includes executive order and ordinances)

Tests/ guidelines on which the foreign judgments may be enforced in India- (s.13) (in order to
make judgment, clause a to f of s13 prescribing such conditions have to be fulfilled in toto,
their effect is cumulative)

1. Competency of the court- the court under which the law was formed/passed
- competent jurisdiction according to the law by which such courts have been est (the
domestic law)
- competent to hear on the basic principles of intl law as well
- if both are present then foreign judgment valid
- [competency also imp for res judicata]

I. R. Viswanathan v Rukn ul Mulkh Syed Abdul

For judgment is conclusive if pronounced by competent court and such competency should
be tested in accordance w the law of the state establishing it and also in accordance w broader
principles of intl law.

L. Gurdyal Singh v Raja of Faridkot (1895 PC)

Same fact est that competency est wrt law of the state deciding it
Also, if a judgment is passed by a court merely on the fact that the actual cause of action has
arisen there and the parties reside in some other jurisdiction then only the court where the
parties reside will have jurisdiction to enforce such judgment.

2. Judgment should be based on the merits of the case

- based not on merit but any other issue or reason
- whether formally passed and investigation into evidences and question of law and fact
was done
- if passed only on the basis of conduct of parties (eg- dismissed due to non attendance of
parties) then such judgment isn’t applicable to India.

I. International Woolen Mills v Standard Wool UK Ltd (AIR 2001 SC 2134)

- discussed the aspect of what is judgment on merit

34
- ‘the real test’ for deciding merits of a given case is to see whether judgment was merely
formally passed for default of conduct of the parties or defendant or whether it was based
upon genuine considerations of truth or falsity of plaintiff claim
- SC tries to point out what is judgment of merit
- If judgment declared to be decreed due to party not appearing, non-payment of fees etc,
these wont be considered. Going into and investigating the truth vis a vis the plaintiff’s
right and conduct of the defendant in that context.

3. Should be in consonance with the laws of land

- public policy of Indian law offended or against the broader princis of intl law.
- Judgment based on a law in contrast w the public policy of India

LI. Narasimha Rao v Venkatlakshmi (1991) 3 SCC 451

‘When a foreign judgment is founded upon a fact of jurisdiction or a ground not recognised
by Indian or intl law it becomes a judgment in defiance of law and therefore becomes or
remains unenforceable.

4. Followed the principles of natural justice

- this is related to judicial procedure as natural justice applies to the judicial process not the
merits

I. Sankaran Govindan v Lakshmibharat (AIR 1974 SC 1764)

- In this judgment, the court pointed out one imp dimension. Natural justice in India, we aim
to look at the transparency of the judicial process. Substantive law will take its own course
but the process should be fair and transparent too. Imp aspect – process also cannot be
neglected or ignored, the process itself should be above reasonable doubt
- ‘Natural justice refers to the fact that minimum requirements of judicial procedure is
assured and upheld. Therefore, a judgment which is a result of bias or want of impartiality on
part of the judge, such judgment will be coram non judice or nullity.

5. Element of fraud should not present while passing a foreign judgment

- not a mere mistake but misleading the court

I. A.V. Papayya Shastri v Govt. of A.P. (AIR 2007 SC 1546)

- Normally fraud has two dimensions, substantive and procedural aspects. However, the
latter can be checked by the previous condition but If fraud on substance then that will
affect the merit of the judgment. Law was applied to a particular repr on the basis of facts
that was never there. Thus, the law is useless in this case. Taking away the judicial
process of courts applying judicial minds. The judgments are severely compromised.
- A judgment obtained by playing fraud on the court is a nullity and non est in the eyes of
law. Such judgment has to be treated as null by every court whether superior or inferior. It
can be challenged in any court at any point of time including appeal, review, writ or even
through collateral proceedings.

35
 6. Enforcement of such judgment should not breach upon any Indian law
- the judgment prima facie isn’t violating Indian law but when we enforce it it would lead
to violation of Indian law.
- Violate principles and rights with respect to any proceedings

The ultimate judgment on the judgment on the foreign court lies with the Indian courts only.
If the court still chooses to enforce a foreign judgment the legislature can bring in an order
negating the judgment.

I. Satya v Teja Singh (AIR 1975 SC 105)

Any foreign judgment founded upon breach of Indian law or the execution of whom may
offend the public policy, remains unenforceable.

Cases-
FJ act as Rej Judicata:

I. Batad and Co. v East India Trading Co. (AIR 1964 SC 538)

LII. R. Viswanathan v Rukn ul Mulk Syed Abdul (AIR 1963 SC 1) (imp)

(both judgments)
A Judgment delivered by a for. court of for jurisdiction is enforceable in India. Both plaintiff
and defendant are entitled to non-suit on basis of such judgment.

Principle of comity of nations- objective of FJ

I. Satya v Teja Singh (AIR 1975 SC 105) (imp)

Recognition of foreign judgment on basis of comity of nations is accorded as non an act of
courtesy but on the considerations of justice, equity and good conscience.

S14- presumption as to foreign judgment

I. Narsimha Rao v Venkatlakshmi

Mere production of a photo sted (?) copy of a decree of foreign court is not sufficient. Such
decree is reqd to be certified by a competent authority or representative of such the
jurisdiction under which the court is established.

5. PLACE OF SUING IN INDIA

 Which court to approach and under which provision (refer s15-20)

Section 15- suit to be filed in the court of lowest grade competent to try such matter
 General provision
 Which court to approach- s15 gives guideline (always try to file suit at the lowest
level where cause of action arises)

36
  When there is a specific guideline, that override the general one, however, if nothing
is mentioned then this is taken into account.
 Two fold object of this section:
1. to see that the court of higher grades are not over burdened by such suits
2. to afford convenience to the parties and witnesses which may be examined in such
suit.
[one class missing]

6. INSTITUTION OF SUITS
 s26- s35(b) of CPC covers institution of suits and order 1
 It deal w the aspect of who all are parties to the suit, who is being sued and for what
reason it is being brought to the court
 Elements:
1. there should be opposing parties and w/o them there would be no dispute arising
- framing of issues requires that on a common point, the two parties disagree
2. subject matter associated w the suit or in in dispute [right/property etc.]
- helps court in deciding the central point of agument
- helps them decide the competency of the court
3. has to be some wrong committed- valid cause of action [cause of action accruing
out of such opposition]
- differential opinion and subject matter may be present but until and unless something is
done that gives you the right to sue me, there can be no suit.
- Most imp element
4. Relief claimed for the redressal of valid cause of action- want relief from the court

 what is a suit- any proceeding by one person or persons initiated against another
person or group of persons in the court of law wherein the plaintiff pursues the
remedy which affords him for the redress of any injury or enforcement of a right
whether at law or in equity. Thus there are 4 valid constituents of a suit:
(the 4 above points)

Missing?
Misjoinder and non-joinder
When a person who is a necessary or proper party to a suit has not been joined as a party to
the suit, it becomes a case of non-joinder. On the contrary, if a party has been joined to the
suit contravening rule 1 and rule 3 of Order 1, which is neither a proper party or a necessary
party, it becomes a case of mis-joinder.

LIII. S.K. Saldi v U.P. State Sugar Corporation

The court observe that the mis-joinder or non-joinder of parties cannot be the sole ground of
dismissal of the suit and further, a decree passed by a competent court may not be set aside
merely on the ground of wrong description of defendant

37
LIV. B. Prabhakar Rao v State of A.P. (1985 Supp. SCC 432)
The Supreme Court has laid down that the interest of the persons who are not joined as
parties, if proved to be identical with those who were present before the court and who were
sufficiently represented would deem to include their representation and therefore the petition
is not liable to be dismissed on such grounds.
[these are technical procedures and substantive justice not to be undermined due to this]

Rule 13, Order 1 talks about when an objection as to non-joinder and mis-joinder is to be
taken. Case in this context:

LV. Naba Kumar v Radha Shyam (PC 229)

The ratio was reiterated in the SC later as well. The court suggested, interpreting rule 13 that
if the objection as to non joinder of necessary party has been taken by the defendant at the
earliest stage and even after that the plaintiff declines to add such party, he cannot
subsequently be allowed in appeal to rectify the error by applying for the amendment. As a
general rule otherwise, all objections on the ground of non-joinder or mis-joinder of parties
should be taken at the earliest opportunity. Otherwise it may be deemed to have been waived.
[if brought at the earliest possible opp., the then court and parties will find it convenient to
chip in to the litigation, if not will have to track it back to day one of the start of the
litigation.]

Rule 10 of Order 1- Striking out, adding or substituting the parties

- comes to the knowledge that the party isn’t the correct party or that the party added will
not give him complete justice and some other party should have been added. Can apply to
the court to just add a party without adding anyone or substitute one party for another or
just adding other parties
- Conditions to be looked into:
1. whether the person who has been sued is a wrong person [name, etc., is wrong]
2. whether the mistake was bona fide or deliberate in nature
3. whether such amendment is necessary to adjudicate the real dispute or subject matter
of the litigation or not

LVI. Anil Kumar v Shivnath 1995 (3) SCC 147

The underlying object of rule 10, order 1 is to save honest plaintiffs believing bona fide in the
maintainability of their claims being non-suited on a mere technical ground. The policy of the
rule is to decide the real questions in the controversy between the parties bypassing the mere
technical objection for defeating a just and honest claim by discouraging puerile contest on
technicalities

Sub rule 2 of rule 10 empowers the court to strike out the parties on two grounds :
1. Such person ought to have been joined as plaintiff or defendant and is not so joined
2. Without his presence the question involved in the suit cannot be completely decided
Case relating to broader domain of the power of the court in this context

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LVII. Raziya Begum v Sahibzihadi Anwar Begum AIR 1999 SC 976
The SC has laid down as follows that the power of the court to add the parties or strike out
the parties under rule 10 sub rule 2 should be governed by the following principles:
1. The addition of parties under rule 10 of order 1 is generally not one of initial
jurisdiction of the court but of a judicial discretion which has to be exercised in view
of all the facts and circumstances of a particular case and in some cases it may raise a
question of jurisdiction which may be limited to as developed u/s 115.
2. In a suit relating to a property a person may be added as a party if he has a direct
interest which is distinguishable from a commercial interest.
3. Where the subject matter of litigation is a declaration as regards to the status or legal
character, the rule of direct interest may be relaxed.
4. The cases contemplated in the suits or declaration should be determinable in
accordance w the statutory provision of s42 and 43 of the Specific Relief Act.

[missing notes]

7. FRAME OF SUITS
Order 1
First aspect: Inclusion of claims [rules 1 and 2].
A cause of action might give rise to multiple claims (multiple remedies can be sought from
the Court). As a plaintiff I should always include the entire claim in the plaint. If multiple
releases not afraid of claiming of all of them. In case no bona fide intention and if proves,
dilues chance f getting relief. 2) if paint read by defendant and there is no claim initially, only
including it later, the defendant should be aware of what you are doing. Procedural law
follows principal of natural justice, both parties kept at equal footing.

Inclusion of entire claims:

1.every suit should include the whole of the plaintiff’s claim in respect of cause of action and
as far as practicable all matters in the dispute between the parties should be aimed to be
disposed off finally. It indicates that in each case the court will have to see whether it was
practicable for the plaintiff to frame his suit in such a way so as to include his entire set of
claims associated with the cause of action. And should convey what is being relinquished by
the plaintiff through non-inclusion in the plaint. [suit should be drafted such that the entire set
of claims should be included]

4th September (Shradha)

Whether the court has any subjective or objective ideas or is it based on facts and
circumstances?
There are certain conditions laid down in the case of State of Maharashtra v National
Construction Company AIR 1996 SC 2367. These conditions are-
1. Whether the cause of action in previous suit and the subsequent suit is identical.
(identical nature)

39
 2. Whether the relief claimed in the subsequent suit could have been given in the
previous suit on the basis of pleading made in the plaint. (Whether the relief could
have been granted)
3. Whether the plaintiff omitted to sue for a particular relief on the cause of action,
which has been disclosed in the previous suit. (Whether the relief that could have
been granted was not provided)

LVIII. Mohammad Khalil v Mehboob Ali

Which suits should be allowed and which should not be under the order 2 rule 2. The
sc therefore laid down certain points and conditions. These are-
1. the correct test in the causes following under, whether the claim in the new suit is
in fact founded upon a cause of action, distinct from that which was the
foundation of the the former suit.
2. The cause of action here would mean that every fact, which will be necessary for
the plaintiff to prove if, traversed in order to support his right to judgment. (Cause
of action is all those facts which give rise to certain allegations and is required to
be proven)
3. If the evidence to support the two claims is different then the cause of the action is
also presumed to be different. (If not clear from factual side, can be proceed from
the evidence side)
4. The causes of action in the two suits may be considered to be same if in substance
they are identical. (Irrelevant in what form the plaint is presented)
5. The cause of action has no relation whatsoever to the defence that may be set up
by the defendant nor does it depend upon the character of the relief prayed by the
plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a
conclusion in his favour. (Only investigate the pleadings by the plaintiff. Will not
check from the defence of the defendant to check whether the substance is similar
or not)

Order 2 rule 4 & 5

Joinder of claims- this provision means that normally one is not allowed to join claims,
except the certain claims provided in rule 4 & 5. In these cases court is bound in all other
cases, it is the discretion of the claim. Further it is based on the discretion of the court to see
if they want to join the claims or not.

Rule 4- immovable property. (normally will not be allowed unless leave from court unless)
1. Claims for mesne profit and arrears of rent in respect of the property claimed by the
plaintiff or any part thereof so claimed
2. Claims for damages for breach of any contract under which the property or any part
thereof is held.
3. Claims in which the relief sought is based on the same cause of action. (allowed on
the same suit but not in a new suit)

40
Automatic joining of claims may take place in case of the above-mentioned conditions.

Joinder of cause of action – Rule 3 & 6

Order 4 & s26

Institution of suit where the rule 1 of order 4 suggests that every suit must be instituted by the
presentation of plaint in duplicate (with two identical copies) or in such other manner as
maybe prescribed by the plaintiff himself or his advocate or by his recognized or by any other
person duly authorized by him.

A plain must be presented to a court or such officer which is appointed on that behalf and has
to be filed on a working law and working time.

Suit by indigent person may be allowed by s33 where every particular plaint needs to be
registered

Suit against minor- a suit can be brought against a minor and would be deemed to be
instituted from the date of the presentation of claim and not from the appointment of
guardian.

[one class written]

41
 MODULE 3: PLEADINGS
[one class missing, take from Shradha- written]
 Order 6 Rule 2- Principles/Basic Rules of Pleading
1. Pleadings should state facts and not the law
- it is the duty of the party to state only the facts on which they seek to rely upon for their
claims and it is for the court to apply the law to the facts pleaded by the parties
- pleadings should contain a question of fact on which a party intends to differ from the
other party and any type of negligence portrayed on behalf of the other party should also
form part of the pleadings and the corresponding facts need to be highlighted.
- A judge is under a duty to apply the correct law upon the facts pleaded by the parties even
if the law cited by the parties does not turn out to be correct. A construction or
interpretation of document is a point of law and need not be pleaded specifically by the
parties.

I. Sayid Dastagir v T.R. Gopalkrishna Setty

(the above pt wrt to facts and not law)- duty of the parties is to plead the facts, law is the
domain of the judge, he will apply the appropriate law

LIX. Ramprasad v State of M.P.

Duty of the court is to apply the law even if the law doesn’t turn out to be correct

2. Pleadings should be on material facts alone

- Material facts will mean all the facts upon which the plaintiff’s cause of
action or the defendant’s defence depends. Or in other words, all those facts
which must be proved in order to establish the plaintiff’s right to relief
claimed in the plaint or defendant’s defence presented in the written statement.

LX. Calcutta Discount Company Ltd. V ITO

LXI. Udhav Singh v Madhav Rao Sindhia (AIR 1976 SC 744)

[the court only decided what will be included in primary facts-both cases]
All the primary facts which must be proved at the trial by a party to establish the existence of
a cause of action or his defence will be construed as material facts.

LXII. Virendranath v Satpal Singh

It is absolutely essential that all basic and primary facts which must be proved at the trial by
the party to establish the existence of a cause of action or a defence are material facts and
must be stated in the pleadings of the party. Further, particulars of the party or particulars of
the facts ensure the conduct of fair trial and are thus required to be pleaded because it would
not take the opposite party by surprise.

3. The parties should argue on facts and not evidences

42
 - there are two facts: facta probanda (material facts reqd to be proved) and facta proventia
(evidences through which it is to be proved)
- pleadings should contain facta probanda alone and not facta probentia. The latter may be
called upon in the court on the basis of issues decided between the parties

LXIII. Williams v Wilcox and Phillips v Phillips

Indian case referring them:

LXIV. Virendranath v Satpal Singh

The court while laying down the distinction b/w the two has settled that pleadings must
contain only the facta probanda and the facta probentia which helps in establishing the case in
favour of the parties may be proved during the trial in order to establish the facts in issue.

4. Pleadings should be in a concise form

- the basic rule of drafting suggests that pleadings should have sufficient gravity and
precision. The pleadings must point out to specific facts avoiding ambiguity and every
pleading should be divided into separate paragraphs so as to ensure the applicability of
facts in the case and it helps in avoiding the option open to the party to turn back from
their facts or to adduce additional facts, taking advantage of such ambiguity.
- If care is taken in syntactic process, the pleadings can be saved from tautology

LXV. Virendra Kashinath v Vinayak Joshi

Missing??

Amendment of Pleadings order 6 rule 17 (imp) and 18)

17- the court may at any stage of the proceedings allow either party to alter or amend the
pleadings in such manner and on such terms as may be just and all such amendments deemed
necessary for the purpose of determining the real questions in controversy

Rule 17 proviso: provided that no application for amendment shall be allowed after the trial
has commenced unless the Court comes to the conclusion that in spite of due diligence the
party could not have raised the matter before the commencement of the trial.
- this proviso gives specific circumstance as well as a general rule

Object of the rule is that the court should be facilitated to try all the matters on merit and
should consequently allow all amendments that may be necessary for determining the real
question in controversy to the extent that it doesn’t cause prejudice to the other party. The
aspects of procedural law is to provide justice and not punish parties for the mistakes for the
mistakes committed by them during the presentation of pleadings and the larger purpose of a
valid decree should be achieved

43
 I. Suraj Prakash v Raj Rani AIR 1981 SC 485

LXVI. Cropper v Smith (1884) 29 KB 700

Rule laid down in this case and adopted in the Indian scenario in the above case

Rule 17 gives wide discretion to the court to alter or amend the pleadings of the parties but
such discretion should be utilised or exercised judicially and in consonance with well
established principles of law. To eliminate the ambiguity in the utilisation of discretionary
norms, the court should devise a mechanism which may be tested uniformly and with
reasonable care while allowing such discretion. For this, the court has developed a few
conditions and tests
1. Whether such amendment is necessary for the determination of real questions in
controversy. No amendment should be allowed when it doesn’t satisfy this cardinal
test if there is a mistake or omission by the party in bona fide or the suit is brought
under the wrong act, the amendment should be allowed.

I. Jay Jay Rammanohar v National Building Materials Suppliers AIR 1969 SC 1267

2. No amendment will be allowed which will cause injustice to the opposite party, which
can’t be compensated by costs (irreparable damage). The Court may allow an
amendment for the purpose of granting consequential relief on the basis of same cause
of action, which was amended by the party in their pleadings.

I. A.K. Gupta and Sons Ltd. v Damodar Valley Corporation AIR 1967 S 96

Grounds of refusal for amendment of pleading application: (amendment of pleadings is a

discretionary power of the court, utilised judicially and must subscribe reasons for the same-

LXVII. Gangabai v Vijay Kumar

The SC has held that the power to allow an amendment is a wide and discretionary power
governed judicial considerations and wider the discretion, greater ought to care and
circumspection on part of the court
(the court by using this may allow or refuse and amendment appl) )

1. Leave to amend will be refused when the amendment isn’t necessary for the purpose
of determining the real questions in controversy b/w the parties

2. Leave to amend will be refused if it introduces a totally different new and inconsistent
case or changes the fundamental character of the suit or defence

I. Steward v North Metropolitan Tramway Companies

The real test while deciding is whether or not the party can amend its pleadings w/o placing
the other side in such a position that he cannot be recouped by way of allowance of costs or
otherwise.

44
 This has been referred in-

LXVIII. A.K Gupta and Sons Ltd. v Damodar Valley Corporation

a. whether he can be recompensed
b. if allegation changed so substantially that he has to submit separate pleadings
[if above two met then it will be a new case]

3. Leave to amendment will be refused where the effect of proposed amendment is to

take away from the other side a legal right accrued in his favour

I. Weldon v Neal, 1887

Referred in-

LXIX. Pirgonda Patil v Kalgonda Patil AIR 1967 SC 363

The rule of amendment of pleading is to provide a just and reasonable ground to both the
parties and while allowing such amendment the Court should keep in mind the law of
limitation and other relevant factors in exercising its discretion.

LXX. Charan Das v Amir Khan AIR 1921 PC 50

The power of the Court to amend a pleading cannot be disputed yet thee may be
circumstances where such considerations are outweighed by the special circumstances of the
case.

4. Leave to amend will be refused where the application for amendment is not made in
good faith

I. Patasi Bai v Ratanlal (1990) 2 SCC 42

After the application of amendment, the procedure:

1. once a trial court grants an application for amendment of pleadings through recoding
reasons for the same, a notice is to be served to the other party to raise an objection of
such nature which is legally valid and the other side is reqd to amend its pleading. But
if the amendment is purely formal or technical and doesn’t change the merits of the
case or circumstances, non-issuance of notice by the Court may not be termed as
violations of principles of natural justice.

LXXI. Usha Devi v Rizwan Ahmed (2008) 3 SCC 717

Limitation period
No period of limitation prescribed under the law of limitation act would govern an appl
submitted u/r 17, order 6 as such applications may be moved ‘at any stage of pleadings’.

45
 MODULE 3: PLAINT AND WRITTEN STATEMENT

Rule 1-8 of order 7 talks about particulars of plaint

Rule 10-10b talks about return of plaint and appearance of parties
Rule 11-13 rejection of plaint
Rule 14-17 provisions related to production of documents

How to write uniform plaint despite diff facts and circumstances for each and every case:
- the CPC provides certain essential ingredients for the plaint, reqd to be mentioned in each
and every plaint
- helps defendant to draw up strategy in response and plaintiff to lay out their position
Particulars of plaint (rule 1-8) this order is followed in the plaint:
1. Name of the Court
2. Name and description and place of residence of the plaintiff
3. Name and description and place of residence of the defendant
4. If there is a suit brought by a minor or person of unsound mind- how to identify it is a
suit of this nature: the parties write a statement saying whether it is suit brought by
minor or on behalf of minor contested by someone as guardian, same w unsound mind
(contested by near friend or guardian)
- a statement stating the fact that the suit is contested on behalf of minor or person of
unsound mind
5. The facts constituting the cause of action arising in favour of the plaintiff
6. The statement jurisdiction of the Court
7. Valuation of the subject matter and corresponding court fees
8. Statement constituting the representative nature of the suit and the facts establishing
the conditions deemed essential for establishing a representative suit.
9. Statements showing or allowing set off on behalf of the plaintiff or statements
10. The facts showing or allowing the amount of set off on part of the plaintiff or the
amount relinquished by the plaintiff in the plaint itself
11. The nature of relief claimed by the plaintiff cumulatively or alternatively
12. If it is a suit in nature of recovery of money, the relief claimed would be so amended
that the exact amount of money will be claimed by the plaintiff
13. When there is a suit for possession of property and calculation of mean profits which
cannot be determined at the time of institution of suit, the approx. value or amount
would be claimed
14. If it’s a case for immovable property- identification of immovable property
- where the subject matter of the suit is immovable property, a description of the property
sufficient to identify it would have to be presented before the Court.
15. The nature of interest and liability of each defendant has to be sufficiently established
16. When the SUIT is time barred a statement or ground on which you are seeking an
exception from the court to entertain the suit will have to be presented in detail

(missing from 13th- 19th September)

46
 Rule 1-5 and rules 7-10
 Special rules of defence: those types of defences and facts only brought by the
defendant but not brought up by the plaintiff. Eg- maintainability of suit, denial (but
mere denial may not be deemed sufficient, have to specifically deny)
 Rules:
1. New facts which are to be cited
- new facts pertaining to maintainability of suit or jurisdiction of the court or any
transaction being declared voidable or void may be brought up as a ground of defence by
the defendant, which if not raised at that time may not be allowed to be raised
subsequently. The effect of this rule is to require the party to tell the opponent what is he
coming w before the court to prove his case. If a party doesn’t raise this issue it may not
be allowed to be raised and it leaves the party at the mercy of the court.

I. Union of India v Surjeet Singh AIR 1979 SC 1701

Case for the above point

2. The denial must be specific which means that each allegation of the fact as raised by
the defendant must be expressly denied or otherwise being deemed to have been
admitted.

LXXII. Udhav Singh v Madhav Rao Sindia AIR 1917 SC

Case for above point

3. The denial must not be vague or evasive and the language used for denial must be
specific or explicit in its nature.

4. Every allegation of the fact in the plaint shall be taken to be not admitted if the
defendant choses to deny them but it doesn’t lead to automatic conclusive
circumstance and the court may emphasise upon the plaintiff to prove each allegation
w evidences

5. Written statement point????

I. Badar and Co. v Indian Trading Co.

The written statement must be dealt specifically and should include categorically each and
every allegation of fact raised in the plaint and when a defendant denies any such fact he
should deny the same in substance. IF the denial of the fact is not specific but evasive the said
fact shall be taken to be admitted. These rules form an integral part of the Court and the legal
consequences may flow in case of non-compliance. The allegation has to be set out
specifically in case of registering new facts on the part of the defendant before the court.

47
 6. If the defendant relies upon distinct grounds of defence or brings the separate facts for
set off or counter claim, they should be stated separately and distinctly from other
parts of the pleadings.

7. Where the circumstances have changed after the institution of the suit giving a
separate ground of defence to the defendant, the court may take notice of such
circumstances or subsequent events. If there are new circumstances after filing of
plaint, the circumstances may be specifically included by the defendant in his
pleadings and the court may take notice of such subsequent events.

8. No new pleading or relief may be allowed in the written statement, apart from the set
off or counter claim by the court but the court may allow to draft a claim at the
discretion of the parties. [the court doesn’t have a say as to what is to be written]

9. If the defendant fails to present his written statement within the time prescribed or
fixed by the court, the court shall pronounce the judgment against him or pass such
order in relation to the suit as it may deem fit.

I. Modula India v Kamakshia Singh Deo AIR 1989 SC 162

The SC has held in relation to rule 1,5,10 of order (?).
Rule 1 merely requires the defendant to present a written statement but if he fails to do so,
under rule 5(2), the court will remain in its lawful duty to pronounce the judgment on the
basis of the facts contained in the plaint and may ask the plaintiff to prove it alone, in absence
of any counter argument. There is nothing in these rules, which makes it mandatory for the
court to pass a decree in favour of the plaintiff straight away, merely on the ground that
written statement has not been filed.

LXXIII. Balraj Taneja v Sunil Madan (Imp) AIR 1999 SC 3381

The court is not supposed to act blindly upon the admission of a fact made by the defendant
in his written statement, nor should the court proceed to pass a judgment blindly, merely
because a written statement has not been filed by the defendant, traversing the facts set out by
the plaintiff filed in the court. Such a circumstance may be covered by the expression ‘The
Court may in its discretion require any such fact to be proved” while conclusively
determining the rights of the parties.

10. Special element. Cross claim- the defendant acknowledges that the plaintiff has a
claim but that the defendant too has a claim arising out of the same cause of action
against the plaintiff. Using the outstanding amt to settle of the existing claim. Tries to
settle of using his own claim. No prob w the plaintiff’s claim but the court has to look
into the claim of the defendant- if he had brought it before the court, it would’ve been
maintainable. The claim should be:
a. maintainable before the court at the time when it was brought (not barred by
limitation) (regular maintainable suit)
b. against the plaintiff w whom you are bringing the suit

48
 c. It should be of certain specified sum of money not in lieu of certain rights. Only
claimed if there is recovery of money of a specified amt.

Set off is a cross claim which is intended to be brought by the defendant originally to off-set
the claim of the plaintiff. It referred to extinction of debts of which two persons are
reciprocally debtors to one another by the credits of which they are reciprocally creditors to
one another. Where there are mutual debts b/w the plaintiff and the defendant one may be
settled against the other. A plea of set off essentially is a plea whereby a defendant
acknowledges the justness of the plaintiff’s demand but sets up another demand of his own to
counter balance that of the plaintiff either in whole or in part.

LXXIV. Union of India v Karam Chand Thapar & Bros. Ltd (2004) 3 SCC 504.
(the above case)

8. COUNTER CLAIM
Counter claim is a claim made by the defendant in a suit against the plaintiff which is
independent of and separable from the plaintiff’s claim which may be enforced by a cross-
action. It is a cause of action arising in favour of the defendant against the plaintiff.
Therefore, it can be set up only in respect of a claim for which the defendant may file a
separate suit.

I. Laxmi Das v Nanabhai AIR 1964 SC 11

[leading case on counter claims]
The SC observed that the question is on the principle as to whether there is anything in law,
statutory or otherwise, which precludes a court from treating a counter-claim as a plaint in the
cross suit. The Civil Procedure Code of CPC prescribes the contents of a claim and we
acknowledge that a counter claim brought by the defendant may not conform to all such
requirements of the plaint but this in itself is not sufficient to deny the court the power and
jurisdiction of constructing the pleadings in a reasonable manner. There could be no legal
objection traceable to the counter-claim for it being treated as a plaint and granting any such
relief to the defendant is otherwise open to the Court. To hold otherwise would be to erect
what in substance would be a mere defect in a form of pleading, making it an instrument for
denying what justice manifestly demands. [the last line suggests that there is nothing
tracebale in law that prohibits us from taking a cross-section. Can be rejected on grounds not
matching w all requirements of a plaint]

Objective of filing counter claim:

The provisions relating to counter claim seek to save the time of the court and are in sync w
the recommendations of the law commission of India, which extensively refers to avoiding
the multiplicity of proceedings. It is aimed at deciding all the disputes b/w the same parties
and avoiding unnecessary extension of judicial proceedings

LXXV. Ramesh Chand v Anil Panjwani AIR 2003 SC 5208

(the above point)

49
 What are the ways of setting up a counter claim?/ How to file it?
1. Through a written statement filed under Order 8 Rule 1
2. By amending written statement w the leave of the court
3. In a subsequent pleading under Order 8 Rule 9

A defendant may file a counter claim against a plaintiff but if a claim deals w a defendant
along w the plaintiff, the defendant may file a counter claim against the co-defendant but a
counter claim solely against a co-defendant is not maintainable.

LXXVI. Rohit Singh v State of Bihar

(the above point)

Difference b/w set off

Set off Counter claim
1. Statutory defence to the plaintiff’s Substantially a cross action suit
claim
2. Must be for an ascertained sum of Not reqd to arise out of same transaction
money or arising out of the same
transaction
3. Ground of defense utilised by the This is a weapon of offence to enforce a
defendant to afford an answer to the claim against the plaintiff w/o
plaintiff’s claim in toto (in whole) or acknowledging the justness of the plaintiff’s
pro tanto (in proportion) demand.
4. In the case of set off, the amt must be In the case of counter claim, legally
legally recoverable at the date of recoverable at the date of filing the written
filing of suit. statement
5. When the defendant demands in a When there is a larger claim or the claim
plaintiff suit an amount below them exorbitantly exceeds the claim of the
or up to the claim of the plaintiff, it is plaintiff, it may be referred as a counter
referred as set off in stricto senso. claim.

9.
[get the order and rules from someone]
The procedure u der order 11 says that the other party has the right to ask a set of questions as
interrogatory. Defendant is having a right to ask interrogatory from the plaintiff and the latter
has to reply to each of these questions.
Order 11 (?)
 To compel the opposite party to disclose what he has in his possession or power. It is
referred by a party to an action or facts or documents. it is a compulsory disclosure by
a party to an action or facts or documents on which the other side wishes to rely. After
the presentation of plaint or written statement, the settlement of issues take place after
which it becomes pertinent for the parties to rely upon the info associated w the facts.
If the info is not available directly before the court, the interested party is allowed to

50
 put a series of questions to his adversary which are referred as interrogatories. The
answer to the interrogatory will compel the other side to reveal information on oath
before the trial, which is called discovery of facts.
 Interrogatories are covered from rules 1-11 of order 11
 Objects:
1. to know the exact nature of the case of the opponent
2. to support his own case either by a) directly obtaining admissions or b) indirectly
by destructing the case of the opponent.

LXXVII. Gangadevi v Krishnaprasad

This case was referred by SC in:

LXXVIII. Raj Narain v Indira Gandhi, AIR 1972 SC 1302

The primary objective underlying this procedure of putting forth a bunch of questions to the
adversaries is to save expenses by enabling a party to obtain from his opponent information
as to material facts and to get his admissions on any matter in the suit which otherwise would
have to be proven by evidences and the same may not be available. This power of the Court
should be exercised liberally w/o being restricted by technicalities.

 Interrogatories may be administered by one party to the other party to the suit, which
means that both the plaintiff and the defendant have the right to seek responses to
interrogatories.
 The objection to the interrogatories may be filed by the parties on the ground of the
same being scandalous, irrelevant, mala fide, etc. (rule 6 of order 11)

 Rules as to interrogatories:
1. Interrogatories may be administered in writing, w the permission of the court, subject
to any condition or limitation as may be imposed by the court
2. The particulars of the interrogatories proposed to be delivered should be submitted to
the court and the court has to decide on the interrogatories within 7 days of such
submission.
3. Interrogatories may be administered b/w a plaintiff and defendant in general
circumstances but it may also be administered by one defendant to another provided
that there is some question or issue b/w them in the suit or proceeding
4. No party may deliver one set of interrogatories to the other party w/o the order of the
court and more than one set may be allowed only in exceptional cases
5. No leave can be granted to the plaintiff to administer interrogatories until the time of
filing of written statement has expired and similarly a defendant may also not file
interrogatory until he files his written statement.
6. Interrogatories mat be administered to a guardian or next friend in case it is a suit
against minor or a person of unsound mind. And if against body corporations then the
answer to the interrogatories is to be provided by the officer in charge.
7. Interrogatories must relate to the matter in question in the suit

51
 8. Interrogatories must be in relation to the question of fact and not as to conclusion of
law or inferences of facts or expression of opinions or construction of documents.
9. Interrogatories cannot be allowed or may be objected on the ground that they are
vexatious or irrelevant or are injurious to public interest, etc.
10. The cost of interrogatories shall be borne by the parties administering such
interrogatories
11. Any party at the trial of the suit may use as an evidence any part of the answer(s)
given by the party during interrogatories.
12. Where a person failed to comply w an order to answer interrogatories, his suit may be
dismissed if he is a plaintiff or his defence may be struck of if he is a defendant.

10.EX PARTE ORDERS AND DECREES

R1 and R 12
Rule 1 mandates the parties to appear before the court on the date of the summons which was
served upon the defendants.
Rule 12 mandates that someone who has been asked to appear in person doesn’t, or asked…..
(?) the court may dismiss the suit

R6 and R10- Plaintiff

R6 mandates that where the plaintiff appears and not D, the P has to prove service of
summons on the D and if it is proved that these were duly served, the court may proceed w
the matter ex parte against the D and may declare a decree in favour of the plaintiff if he
satisfactorily proves his case. This rule applies to first hearing alone and doesn’t per se apply
to subsequent hearings.
[applies only in case of first hearing]

LXXIX. Sangram Singh v Election Tribunal AIR 1955 SC 425

Situation where D doesn’t appear only P

R7-11: Defendant
Where the D appears and not P and D doesn’t admit to the claim of the P, the court shall
passs an order dismissing the suit, however, if the D admits to the claim of the P, wholly or
partly, then the court will pass a decree against the D upon such admission and dismiss the
suit for the rest of the claim.

LXXX. Calcutta Port Trust v Shalimar Tar Product Ltd. AIR 1981 SC 684

LXXXI. Raja Devi Baksh v Habib Shah PC 1913

It is a serious matter to dismiss the plaintiff’s suit w/o hearing him and that course ought not
to be adopted unless the court is really satisfied that the justice so requires. But the Court has
no power to dismiss the suit where the plaintiff doesn’t appear owing to his death and the
same rule will be applicable upon the defendant as well.

R9

52
 When the context of a party appears after ex parte decl, the court will look into whether there
is sufficient cause for non-appearance (not defined, left to discretion of the court).
Rule 9 precluded the P thereafter from filing a fresh suit on the same cause of action,
however, a party may apply to the court to set aside such dismissal up to the satisfaction of
the court that there existed a sufficient cause for his non-appearance and in such a scenario,
may fix a new date for the hearing of a suit. If sufficient cause is shown by P for non-
appearance, reopening of the matter becomes mandatory and Rule 9 becomes directory in
nature.

LXXXII. Lachi Tewari v Director of Land Records AIR 1984 SC 41

(for above point)

Sufficient cause depends upon the facts and circumstances of each case and a liberal and
generous construction should be adopted to advance the cause of justice and the restoration of
the suit shouldn’t ordinarily be denied. When a party arrives late and finds that his suit or
application has been dismissed, he is entitled to have his suit or application restored on the
payment of costs.

LXXXIII. Chota Lal v Ambalal Hargovan 1925 Bombay HC- IMP

LXXXIV. Currim Bhai v N.H. Moos 1929 Bombay HC

The court held that it would be diff to agree w the Chotalal judgment in principle as a settled
proposition of law. If a defendant wants to derail the suit proceedings, he may deliberately
not appear before the court and all he would have to do is come up on a successive date and
ask for restoration of the suit upon payment of costs, which would leave the justice at the
mercy of people who can uphold such payments.
This overruled the Chota Lal case.

If non appearance is due to non service of summons R2 and R 4:

It is a fundamental principle that a party must have a fair and reasonable opp to present his
case and for the same, he must have the knowledge of initiation of a legal proceeding against
him in a court of law. The same cane be facilitated through service of summons, which would
prescribe a date and the nature of proceedings for appearance.
Rule 2 of order 9 enacts that when such summons isn’t served, the suit may be dismissed, but
this will not be applicable if the D has appeared before the court even upon the failure of
delivery of summons. However, such dismissal shouldn’t be resorted to as a general principle
and the P may be given a sufficient time again for delivery of summons.
If the plaintiff fails to apply for a fresh summons within 7 days, from the date of return of the
previous summons, the court will dismiss the suit against the defendants.

Ex Parte Decree
Grounds of challenge:
1. Summons not duly served or failed to be served

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 – Not duly served: the standard procedure of summons is not followed [the different
points not mentioned or failed to be mentioned]
2. There existed a sufficient cause in favour of the defendant which prohibited or
restricted him for appearance in the court and due to this set aside the order of ex
parte

The language of the rule is plain, express and unambiguous and the grounds mentioned
therein (in the context of sufficient and good casue) are exhaustive, thought there may not be
a material difference b/w the two expressions, ‘sufficient cause’ and ‘good cause’.

LXXXV. G.P. Srivastav v R.K. Raizada, (2000) 3 SCC 54

(for the above point) and,
the sufficient cause for non-appearance refers to the date of absence which was made a
ground for proceeding ex party. If the sufficient cause is made out for the non-appearance of
the defendant on the date fixed for hearing when ex parte proceedings were initiated against
him, he cannot be penalised for any previous negligence, which was already condoned
earlier.

Whether the situation will change if the govt is appearing- court clarified that the sufficient
cause principle will apply to anybody, private or govt

In the context of sufficient cause, the major test is:

Whether the defendant honestly and sincerely intended to remain present when the suit was
called on for hearing and did his best to do so. If the answer is in affirmative, ex parte decree
or order should be set aside and if the answer is in negative, the ex parte decree cannot be
recalled.

LXXXVI. UCO Bank v Iyengar Consultancy Services Pvt Ltd., (1994) Supp 2 SCC 399.

Missing?

 Order 10 covers aspect of first hearing- court normally begins trial of the suit by
asserting the actual proposition of facts, as well as the position of law.
 The meaning isn’t defined in the CPC

LXXXVII. Siraj Ahmed v Premnath, AIR 1993 SC 2525

The date of first hearing of a suit is ordinarily understood to be the date on which the court
proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in
documents filed by them for the purpose of framing the issues to be decided in the suit.

 O10 R1-
 R2- the court will ensure that the appearance of the parties take place and in the
appearance mere silence must not be there and the parties must elaborate on the actual
position of facts.

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  O10 R1 and 2 is connected w O14 R1. It is reqd that both these rules have a
conjunctive study.
 Materials used by court for framing the issue: explanation given by the parties (the
pleadings submitted) and also any document produced.
- Rule 3 O14:
1. allegations made on oath by the parties or the statements made by the pleaders
representing the parties.
2. allegations made out in the written pleadings or in answer to the interrogatories.
3. Docs presented by the parties before the court.

LXXXVIII. Hiralal v Badbulal, AIR 1953 SC 225

The court explained what can be the consequence of not framing proper issues.
If proper issues are not framed, the parties may move to the court and asking it to redraft the
issues in a language which is clear, unambiguous and relates to the actual controversy
brought before the court. The court while framing the issues has the right to examine the docs
presented, seeking a right of appearance of the parties or securing of oath from the parties.
The court also has the power to frame additional issues or strike out the existing issues, which
were alleged to be wrongly framed, by the parties.

Disposal of suit at the stage of first hearing- Order 15

Grounds:
1. where the parties are not at issue of question of law or fact
2. where the defendant admits to the claim of the plaintiff, the court may pronounce a
judgment or decree. Where there are two or more defendants and one of them agrees
to the claim of the plaintiff, a decree may be passed against him, and the suit may
proceed against the remaining defendant.
3. Where the summon has been served and either party fails w/o sufficient cause to
produce any evidence on which he originally relied upon.
4. Where a party or his pleader makes admission of such nature which is sufficient to
dispose off the case.
Case for these grounds:

LXXXIX. Kundibai v Vishinjit Hotchand, 1977 judgment of Sind HC [AIR 1947 Sindh 105]
The judgment was referred by the SC in:

XC. Hiralal v Kalyan Mal, AIR 1988 SC 618

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 INTERIM ORDERS
1. COMMISSIONER
Appointment of commissioner: Order 26 r/w s75-78
Commissioner is one who does the executive task on behalf of the court (not related to any
of the parties) of consolidating the docs, evidences and witnesses. Upon receiving
instructions from the court, he may: adjust accounts

Read what is commissioner and what he does from the book

Examination of witnesses by the commissioner

Rules 1-8 of order 26 r/w s 75-78
 Where a party requests a court to examine the witnesses produced by it at the time of
trial, the court is under duty to record their testimonies, however, any inability of a
witness to attend the court on the ground of sickness or infirmity or his appearance
may be detrimental to public interest, may justify the issue of commission for
examining such witnesses.
 The circumstances for examination of witnesses are :
1. if the person to be examined as a witness resides within the local limits of the
court’s jurisdiction and is a) exempted under the Court from attending the Court
or b) is suffering from a sickness or infirmity which precludes him from attending
the Court or c) in the interest of justice and for the expeditious disposal of the
case, it is deemed essential of examining such witnesses through commissions.
2. If he resides beyond the local limits of the jurisdiction of the court
3. He is about to leave the jurisdiction of the court.
4. If he is a govt servant and cannot, in the opinion of the court, attend the court w/o
detriment to public service
5. If he is residing out of India and the court believes that his evidence necessary
The court may issue such commissions either suo motu or on the appl of any party to the suit
or even on the appl of witnesses to be examined.
The evidence taken by the commissioner shall form part of the record.

Limitation of the usage:

1. A judicial function of the court cannot be delegated to a commission.
2. Further, the commission cannot be issued to value the prop in the dispute but
commission may help the court in gathering the data, which discovers the actual value
of the property.
3. A court is not duty bound to collect evidences for a party, neither is it supposed to
protect the party and hence, commission may not be appointed to seize the books of
accounts on mere allegation that the other party may tamper w it.

Evidentiary value of the report of commissions

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  Reports of the commissioner would furnish prima facie evidence of the facts and data
collected by the commissioner which will constitute an imp piece of evidence in itself
and cannot be rejected, except on sufficient grounds.
 However, it is open to the court to determine how much value it would like to attach
w the report of such commission.
Case for above points:

I. Tushar Kanti v Savitri Devi, AIR 1996 SC 2752

11.TEMPORARY INJUNCTION
11.10.18 missing

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Order 1- 21: Stages of Civil Suit

order 3- appt of advocate (through vakalatnama)

order 4 r/w s26- institution of suit

court fees or stamp duty to process the appl before the court

order 10
s89 r/w order 10 rule 1A [refer for out of court settlement: ADR methods]
- different modes mentioned

order 12: admission of facts and documents

- whatever facts pleaded by one party is to be admitted by the other parties

order 13: documents

- court keeps the doc or gives for possession to some party

0rder 14: issues

refer IEA- defn for fact and issue in s3

order 16: summons are issued to witnesses

issue interrogatories to the list of witnesses which has already been forwarded to the parties.
- expenses looked after by the parties who have called them

order 18- plaintiff begins w the case then the def will give perspective then witness
statements

three stages of examination of witnesses:

1. examination in chief- the question sent before the answers to those are submitted in
court (submitted through affidavit)
2. cross examination- done by court or court appt commissioner
- examined first by the person called. The facts in favour, will ask those and take out
evidence in their favour

3. re examination- the other advocate examines him try to prove something to prove him
to be hostile
- leading questions are asked

order 19- affidavit

order 20- judgement

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section 32- if a party doesn’t appear after summons, arrest or attach property

order 21- execution of decree [106 rules]

s2(2) defines decree-a formal statement of final adjudication. Conclusive determination of the
rights of the parties.
- suit starts from when instituted, gets over after judgement
- before it gets over, anything said in between is the order
- after the final hearing, evidence, etc., the court gives a determination and that is judgment
- decree is the operational part after the judgment . Final decree- issued after the judgement
- decree in between the suit: preliminary decree
- if the court for eg gives 5 out of 10 judgments, these will be called preliminary decrees
and judgment on final issues, that is final decree.
- Partly preliminary and partly final decree: 5 out of 10 issues decided byt the court and
these are so imp that you don’t need to go further w the suit. Then in this case it will be
party preliminary and partly final.
- The decree is executed and have to file appl in court for execution of decree

Execution of Decree

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