Paper - I

Civil Procedure Code and Law of Limitation

Running Notes for the lecture sessions in Week #2

Stages of Proceedings:
 S. 2 Definitions:

S. 2(2) "Decree" means the formal expression of an

adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard
to all or any of the matters in controversy in the suit and
may be either preliminary or final.

All Framed issues are perused and heard by the judge and
the decision reached on any given issue, will be considered
as a decree.

S. 2(9) "Judgment" means the statement given by the judge

of the grounds of a decree or order.

Judge’s explanation of why such a decision has been reached

upon. Based on which principles was this decision
justifiable. Ratio Decidendi & Obiter Dicta

S. 2(14) "Order" means the formal expression of any decision

of a Civil Court which is not a decree.

Any direction given by the court during the suit proceedings

is called an order. (Interim order / Docket order)

Suits in General:

1. What is meant by a suit?

When a dispute arises between two parties, a suit is filed in
the court of law for determination of rights or liabilities of
both the parties.

Essentials of a suit:
a. Two or more opposing parties
 b. Subject Matter of dispute
c. Cause of Action (Necessary reason why court is being
approached)
d. Relief requested

2. In which court suit is instituted?

Jurisdiction of laying a suit is decided based on the case
S. 3, 6, 9, 15 to 21(Place of suing); deal with this question.

3. Can suits be transferred? – Yes. Refer S.22 to S.25

4. How many suits can be instituted in connection with a

dispute?
Only one suit. Refer S.10, 11 & O.I - R2

5. Who are the parties to the suit? – O. I

6. What are the various stages of the suit?

Suit proceedings (a-j) [As shown in the flowchart above]

Jurisdiction of Civil Courts

Jurisdiction – Latin:

o Juris – By law
o Dicto – to speak

I speak by law – Jurisdiction – Power or authority of a court

of law to hear and determine a cause or a matter.

Jurisdiction of a court means the extent of authority of a

court to administer justice prescribed with reference to the
subject matter, pecuniary value and local limits.
 Classification of Jurisdiction:

 A litigant having a grievance of a 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.

Abdul Waheed Khan v. Bhawani AIR 1966 SC 1718

 Cognizance in a formal way for its decision

Raja Soap Factory v. S. P Shantaraj AIR 1965 SC 1449

 Consent cannot confer nor take away jurisdiction of a court.

A.R. Antulay v. R. S. Nayak AIR 1988 SC 1531

Enlarging jurisdiction is legislative character – Parliament

 If a court doesn’t have jurisdiction then acquiescence, waiver
or estoppel cannot create jurisdiction.

 Defect in jurisdiction cannot be cured by consent of parties.

Therefore, the judgment or order however precisely certain
and technically correct is null and void and the validity
thereof can be challenged at any stage (includes execution)

Dhirendra Nath v. Sudhir Chandra AIR 1964 SC 1300

Vasudev Dhanjibai Modi v. Rajabai Abdul Rehman

AIR 1970 SC 1475

 Decree passed by a court without jurisdiction is considered

as “Coram Non Judice”

 Only if two or more courts have jurisdiction, can the parties

consent to choose one of those and only in such case the
agreement regarding jurisdiction is legally valid.

 Want of Jurisdiction v. Irregular Exercise of jurisdiction

 Lack / Jurisdicitonal error: -- Cannot be corrected –

Decree is null

 Irregular exercise: Adjudicating time barred suit – Can

be corrected in an appeal or revision – if no appeal then
this judgment is accepted and it is final.

Ittyavira Mathai Mathai v. Varkey Varkey AIR 1964 SC 907

Time barred suit was decreed

 The aggrieved party doesn’t take appropriate steps to have
the error corrected then the erroneous decree will hold good
and will not be open for challenge on the basis of nullity.

Anisminic Ltd. v. Foreign Compensation Commission

(1969) 2 AC 147

 Error of Jurisdiction = Error of law

 The court has inherent jurisdiction to decide the challenge

regarding its own jurisdiction

Bhatia Cooperative Housing Ltd. v. D C Patel

AIR 1953 SC 16

 It is determinable at the commencement, not at the

conclusion of the inquiry.

R v. Boltan (1841) 1 QB 66

S.9 – Courts to try all civil suits unless barred— The Courts
shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred.

Civil nature + Expressly barred + Impliedly barred

Civil nature – Pertains to private rights and remedies of a

citizen as distinguished from criminal, political and religious
questions.

Civil nature: Suits related to

Right to Property, Right to worship, Taking out a religious
procession, Right to shares in offerings, Damages in Civil
wrongs, Specific Performance and damages for breach of
contracts, Specific relief, Restitution of conjugal rights, suits
for dismissal of marriage, Rents, For or on Accounts, Rights
to franchise, Rights to hereditary offices, Rights to
Yajmanvritis, Against wrongful dismissals from service &
salaries, etc.

Not Civil: Suits involving

Principally caste questions, Purely religious rites and
ceremonies, Upholding mere dignity & honour based on
religion, Recovery of voluntary offerings and payments,
Against expulsion of caste, etc.,

Expressly barred: Matters that are excluded by other

statutory laws in writing are barred from being filed in the
Civil Courts.

Impliedly barred: Barred by general principles of law. Eg:

Stay of suits, Family Courts Act

Presumption of jurisdiction:
Court always presumes that the plaintiff has filed in the
correct jurisdiction until defendant challenges it.

Burden of Proof: The party claiming a defect in jurisdiction

takes the burden of proving wrong jurisdiction.

Dhula Bhai v. State of MP AIR 1969 SC 78

Objection as to jurisdiction: At any stage of the suit

however, at the commencement makes more juridical sense.
 General Principles of Jurisdiction:

1. A civil court has jurisdiction to try all suits of civil nature

unless their cognizance is expressly or impliedly barred. (S.9)
2. Consent can neither confer not take away the jurisdiction of
any court.
3. A decree passed by a court without jurisdiction is a nullity
and the validity thereof can be challenged at any stage of the
proceedings including execution proceedings or even
collateral proceedings. [S.41 of Indian Evidence Act]
4. There is a distinction between want of jurisdiction and
irregular exercise thereof.
5. Every court has inherent power to decide the question of its
own jurisdiction.
6. Jurisdiction depends on averments made in plaint and not
upon the defence in a written statement.
7. For deciding jurisdiction of a court, the substance of a
matter is important but not its form.
8. Every presumption should be made in favour of jurisdiction
of a civil court.
9. A statute ousting jurisdiction of a court must be strictly
construed.
10. Burden of proof of exclusion of jurisdiction of a court is on
the party who asserts it.
11. Even when jurisdiction of a civil court is barred, it can still
decide whether the provisions of an Act have been complied
with or whether an order was passed de hors the provisions
of law.
 Doctrine of Res Sub-Judice (S.10) & Doctrine of Res
Judicata (S.11)

Doctrine of Res Sub-Judice (S.10) – Stay of Civil Suits

No court shall proceed with the trial of any suit in which the
matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties and that
the court in which the previous suit is pending is competent
to grant relief claimed.

Indian Bank v. Maharashtra State Cooperative Marketing

Federal Ltd., AIR 1998 SC 1952

 Concurrent jurisdiction – When two or more courts have

jurisdiction simultaneously.

 S.10 does not prevent a court from passing interim orders

such as injunction or stay or appointment of receiver, etc.
 Stay of suits: This rule applies to trial of a suit and not to the
institution of the second suit.
 It however applies to appeals and revisions

Appeal:

Raj Spinning Mills v. A G King Ltd. AIR 1954 Punj113

Revision:

Vaithilinga Pandara Sannadhi, Re, case AIR 1930 Mad 381

Object of S.10: Prevent courts of concurrent jurisdiction from

simultaneously entertaining and adjudicating upon two
parallel litigations in respect of same cause of action, same
subject matter and same relief.
  Confining a plaintiff to one litigation.
 Protecting a person from multiplicity of proceedings
 To avoid conflict of decisions.

Conditions for applying S.10:

1. There must be two suits, one previously instituted and the

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

 If all the conditions are met then S.10 becomes mandatory

in the subsequent suit

Manoharlal Chopra v. Seth Hiralal AIR 1962 SC 527

 At any stage the conditions can be proved:

Life Pharmaceuticals (P) Ltd v. Bengal Medical Hall

AIR 1971 Cal 345

 In case where all conditions are not met… does the judge
have discretion to still give Stay of suit? Yes
S. 151 – Inherent powers to the court

Judge may stay the suit even without all conditions met if he
believes that will serve justice.

Jado Rai v. Onkar Prasad AIR 1975 All 413

Also different suits between the same parties arise, the judge
may choose to consolidate the matters if they are
substantially same.

P P Gupta v. East Asiatic Co. AIR 1960 All 184

Exception:

 If the Court is satisfied that the subsequent suit can be

decided purely on the legal point by examining the merits
of the matters but not evidence, then it is open to the
court to decide such a suit.

P D Jain v. Gopala Krishna AIR 2004 SC 3504

A decree passed in contravention of S.10 cannot be

disregarded even in execution proceedings.

 If all the parties waive their right expressly and ask the
court to proceed with the subsequent suit, then they
cannot challenge the validity of the decree in the
subsequent proceedings.

Gangaprashad v. Banaspati AIR 1937 Nag 132

 Suit pending in foreign court: No bar in the power of

Indian court to try a subsequent suit if the previous suit is
pending in a foreign court.