Order 1: Parties to Suit- There are always two parties involved in a case.

For a civil case, these two parties are

referred to as the plaintiff, who is responsible for instituting the suit against the other party, and the defendant
who is the other party and has to provide his defense in the civil court against the allegations made on him. This
is the beginning of a civil case as have been provided under Order 1 that deals with Parties to suit. Right after
the parties to suit are recognized comes the need to frame the suit as provided under Order 2.

Order 2: Frame of Suit- The plaintiff will be approaching a civil court with his suit which is familiarly known
as Frame of Suits provided under Order 2 of the Code. Framing of suit signifies that a party has instituted a legal
action against another party. As provided by Rule 2 of Order 2, the plaintiff is supposed to include his entire
claim in the suit, which will function as a cause of action brought by the plaintiff against the defendant. The
framed suit needs to be instituted before the civil court. But, who does the institution? Is it the plaintiff, or any
other individual? This question is answered by Order 3 of the Code.

Order 3: Recognized agents and pleaders- Order 3 of the Code of 1908 talks about recognized agents and
pleaders. For instituting the suit framed by the plaintiff before the civil court, the instituting party needs the help
of a legal professional or a pleader who is expertise in the field of law. Here comes the need to hire a lawyer
who takes the framed suit before the civil court on behalf of the aggrieved party, that is the plaintiff. Who all can
be categorized as recognized agents, and pleaders have been given room under Rule 2, and Rule 4 of Order 3
respectively. Now it becomes the responsibility of the recognized agent, or a pleader, to institute the suit before
the civil court on behalf of the disputed party, the plaintiff, which brings us to Order 4 of the Code.

Order 4: Institution of suits -For instituting the suit, a plaint needs to be presented before the court by the
plaintiff. The meaning of a plaint has been explained under Order 7 of the Code of Civil Procedure, 1908. It is to
be noted that for the proper institution of suit compliance with sub-rules (1), and (2) of Rule 1 of Order 4 stands
mandatory. While sub-rule (1) mandates the presentation of a plaint to institute a suit before the court of law,
sub-rule (2) provides that no plaint as provided in the previous rule can escape the rules provided under Order 6,
and 7 of the Code.

Order 5: Issue and service of summons- After a suit is instituted by the plaintiff, there comes the need to
inform the defendant about such a suit so that the latter can appear before the court, and provide his defense
against the claim made by the plaintiff. To facilitate the defendant to do the required steps, the court serves
summons as has been duly provided under Order 5 of the Code of 1908. The defendant is provided with a period
of 30 days to appear before the court, and file a written statement.  The proviso of Rule 1 of Order 5 provides
that if a defendant appears before the court at the time the plaint is presented and admits whatever the plaintiff
has claimed in the plaint submitted to the court, then in this case no summon shall be served to the defendant.
Put simply, summon is the medium by which the court calls the defendant to present his defense against the
claims made by the plaintiff in his plaint. Order 5 also includes the steps involved in serving the summons and
the way they are to be delivered.

Order 6: Pleadings generally- Rule 1 of Order 6 provides the meaning of the term “pleadings” which shall
mean plaint, or written statement. Although plaint, and written statement will be explained in Order 7,
and 8 respectively, the current Order emphasizes the essentials of a pleading which are;

1. Pleadings must be stating relevant facts only. Evidence does not have significance in a pleading (Refer:
Rule 2 sub-rule (1)).
2. To avoid wasting the court’s time, pleadings must be divided in small paragraphs, and the dates, figures,
and numerical should be expressed both in figures, and words in a pleading (Refer: Rule 2 sub-rule (2), and
(3)).
3. The pleading must be consisting of all necessary particulars in cases they are specifically required (Refer:
Rule 4).
4. To include any new ground in the pleading which appears to be inconsistent with the previous one,
amendments are a must. (Refer: Rule 7)
5. Pleadings must not contain any matter of fact that will be of a biased nature, favoring either of the parties to
the case (Refer: Rule 13).
6. It is mandatory for the respective parties to provide their initials in their pleadings (Refer: Rule 14).

Order 7: Plaint- The term plaint has been taken into consideration previously while discussing the institution of
suits. Order 7 particularly deals with it. The ingredients of a plaint are laid down under Rule 1 of the Order. If
the requisites are not abided by, Rule 11 of the Order that deals with grounds for rejecting a plaint will come
into play. While the plaintiff is going to submit his plaint, the defendant has to answer the plaintiff’s claim
before the court by means of a written statement which is provided under Order 8 of the Code.

Order 8: Written statement, set-off, and counter-claim- After the summon is served to the defendant by the
court under Order 5, the defendant shall submit his written statement before the court within the specified period
of 30 days from the date of receiving the summon from the court. The consequence of the failure to submit the
written statement within such time will allow the court to specify some other day for the defendant to submit his
statement. But the new specified date must not exceed 90 days from the date of issue of summons by the court
to the defendant. The most important trait of the written statement submitted by the defendant is that it must
contain specific denials of the allegations made by the plaintiff and not just a general one.

Order 9: Appearance of parties and consequences of non-appearance -After pleadings by the two parties,
the court will ask for appearances of the parties to proceed with the hearing of the case.  Order 9 of the Code
provides the same. Rule 1 of the Order specifically points out that the parties in a civil case are supposed to
appear before the civil court on the date which is specified in the summons served to the defendant by the court.
The interesting part of this Order is the consequences provided for the non-appearance of the parties, which has
been listed down hereunder:

1. Rule 3 talks about the non-appearance of both parties on the specified date. In this situation, the court shall
dismiss the suit.
2. Rule 6 talks about the situation when only the plaintiff appears before the court. Under this Rule, three
scenarios have been provided which will decide the fate of the suit accordingly.
3. Rule 8 talks about the non-appearance of the plaintiff on the date the suit is called for hearing. In such a
situation also the suit will be dismissed by the court provided the defendant has not admitted the claim
made by the plaintiff against him. If otherwise, then the court shall pass a decree against the defendant on
the basis of the claim admitted thereby dismissing the rest of the suit.

Order: Defined under Section 2(14) of the Code of 1908, the order simply provides as to how a case will move
forward in a civil court. As the provision provides, order connotes the formal expression of a Civil Court’s
decision, but expressly excludes a decree.

Decree: Defined under Section 2(2) of the Civil Procedure Code, 1908, the decree is also a formal expression of
an adjudication that lays down the rights of the parties in a civil case that are the plaintiff, and the defendant. A
decree must have the following essential; the rights of the parties, the suit, adjudication, conclusive
determination of the decided rights of the parties, and should be in writing.

Judgment: Defined under Section 2(9) of the Code of 1908, a judgment is a statement delivered by the Judge in
a civil case on the basis of the order, or the decree previously passed by him, or her, to the parties involved in
the case. A judgment must consist of the statement of facts, the determining points, the decision of the court, and
the reason behind the court’s decision.
What do you mean by abatement of suit? Whether the following suits will be abated by the death of plaintiff. Explain
with reasons. -Assault -Malicious prosecution -Specific performance of a contract -Defamation

Abatement of suit means if any of the party to the suit dies during pendency of the case, the suit will abate
against the party and you have to implead the legal representative of the party to the suit.
In a representative suit, the persons appointed to conduct such suit are merely the representatives of other
persons who are constructively parties to the suit. Hence, even if any person dies such suit will not abate and
other person or persons interested in the suit may proceed with the suit or may apply to be added as plaintiff or
plaintiffs.
An abatement of suit may be total or partial. If the entire suit is founded on tort or on personal action, the suit
would debate as a whole on the death of the plaintiff or the defendant, as the case may be. But if the action is
founded partly on tort and partly on contract, the claim relating to tort will abate whereas the claim relating to
contract will survive. Thus, if A files a suit against B, a trustee under Section 92 of the Code for his removal as
also for settlement of scheme and B dies during the pendency of suit; the suit will abate as regards his removal,
but it can be continued as regards settlement of scheme.
Rule 2 In other words, right to sue survives if the cause of action survives or continues. The general rule is that
all rights of action all demands whatsoever, existing in favour of or against a person at the time of his death,
survive to or against his representatives.
Order 22, Rule 3, Civil Procedure Code, provides that under sub-rule in certain types of suits the legal
representatives of the deceased plaintiff can be brought on the record and thereafter the Court shall proceed with
the suit. If an application for substitution is not made within the time limited by law, under Sub-rule (2) the suit
shall abate so far as the deceased plaintiff is concerned.
Under Order 22, Rule 9 (2), Civil Procedure Code, provisions have been made for setting aside the abatement
under certain circumstances. A time-limit is also prescribed under the Limitation Act for making application for
setting aside abatement and delay in filing such application is also condoned under Section 5, Limitation Act on
a proper cause shown.
Abatement of suit takes place when the right to sue doesn’t survive. A personal action dies with the person, is
derivation and source of Latin maxim Actio personalis moritur cum persona Right to sue, other than closely
connected with the individuality of the deceased, always survives to or against his legal representatives.
There are cases where the plaintiffs mostly sue with regard to some claim which is associated with or vests in
their individuality. In case of the survival of right to sue the suits do not abate on death of a party but the
impleadment or substitution of his legal heirs becomes incumbent within the period of 90 days. This is so
because the surviving right has now become vested in the legal heirs. So, as long as a right is referable to the
individuality of a person, it does not survive at the death of that person.
The general rule is that all causes of action and all demands whatsoever existing in favour of or against a person
at the time of his death survive to or against his legal representatives. This principle is found enacted in the
Succession Act as well, with the only exception that rights intimately connected with the individuality of the
deceased will not survive. A right to sue, other than intimately connected with the individuality of the deceased,
will always, survive to or against his legal representatives
Right to sue doesn’t survive in case of Assault, Malicious prosecution, Specific Performance of a contract
and Defamation so there is abatement of suit in these conditions.
For example: A contract to make a painting cannot be performed by anyone else except one skilled in the art.
Thus, the right to sue doesn’t survive in the present case. Hence, according to Rule 1 abatement of suit will take
place. (Specific performance of a contract)
What is the legislative intent behind incorporation of Res judicata in cpc. Whether res judicata will be
applicable to writ petition? What's the difference between -Res judicata and res sub judice -Res judicata
and Estoppel
a.) “Res judicata pro veritate accipitur” is the full latin maxim which has, over the years, shrunk to mere “Res
Judicata”.The concept of Res Judicata finds its evolvement from the English Common Law system, being
derived from the overriding concept of judicial economy, consistency, and finality . From the common law, it
got included in the Code of Civil Procedure and which was later as a whole was adopted by the Indian legal
system.
From the Civil Procedure Code, the Administrative Law witnesses its applicability. Then, slowly but steadily
the other acts and statutes also started to admit the concept of Res Judicata within its ambit.
The doctrine of Res Judicata in nations that have a civil law legal system is much narrower in scope than in
common law nations . According to the dictionary meaning, ‘Res Judicata’ means a case or suit involving a
particular issue between two or more parties already decided by a court. Thereafter, if either of the parties
approaches the same court for the adjudication of the same issue, the suit will be struck by the law of ‘res
judicata’.

b.) The doctrine of res judicata also applies to writ proceedings under Article 32 of the Constitution. In a writ
petition under Article 226 filed before the High Court, challenging the detention of a person is dismissed and
subsequently, a writ petition under Article 32 is filed before the Supreme Court, with some additional point not
raised before the High Court, the agitation of these additional points before the court will not be barred. The
Supreme Court in the landmark case of Daryao v. State of U.P. has extensively dealt with the question of
applicability of the principle of res judicata in writ proceedings and laid down certain principles which may be
summarized thus:
 When a petition under Article 226 is considered, contested on merits and is dismissed, the decision would
continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate
proceedings as prescribed under the Constitution.
 It would not be open to a party to ignore the said judgement and more the Supreme Court under Article 32
by an original petition made on the same facts and for obtaining the same or similar orders or writs.
 A dismissal of writ petition under Article 226 by any High Court not on merit but due to laches of the
petitioner or when the party have an alternative remedy available with them, the dismissal for the writ
petition would not constitute a bar to a subsequent petition under Article 32.
 Such a dismissal may, however, constitute a bar to a subsequent application under Article 32 where and if
the facts thus found by the High Court by themselves relevant even under Article 32.
 Whether the writ petition would constitute a bar would depend upon the nature of the order. There will no
bar if the order is on merits. the petition is dismissed in the timeline without a speaking order, such
dismissal cannot be treated as creating a bar of res judicata.
Suits of Civil Nature- Suits of civil nature is a very wide expression and not exhaustive in any law.
However, some light can be casted on this topic based onCPC, 1908. In CPC suits of civil nature means a
suit that is presented before a Civil Court for adjudication of a civil matter, more specifically to
determine the right of property or office. Here in both phrases,  “right to property” and “right to office”
deserves more clarification. “Right to property” means and includes movable, immovable,  intellectual,
inheritable property and property that arise out of any contract, agreement, litigation, or out of any other
civil rights. As opposed to, “right to office” means a right to hold a position and exercise the power of that
position. It could be a job post, a religious, or any secular post.
Section 9- Provisions relating to “suits of civil nature” have been laid down in section 9 of CPC. It reads “Court
shall have the jurisdiction to try all suits of civil nature except those of which their cognizance is expressly or
impliedly barred.” In the landmark case, Shankar Narayan Potti v K Sreedevi, (1998) 3 SCC 751 the apex
court held that ”it is obvious that in all type of civil dispute civil courts have inherited jurisdiction as per section
9 of the CPC unless a part of Jurisdiction is carved out from such jurisdiction, expressly or by necessary
implication by any statutory provision conferred on any other tribunal or authority.”

Civil Suit examples =Following are the suits of civil nature

1.suit relating to property. 2. suit for damage of civil wrong. 3. suit for Specific Relief. 4. suit for damage
for breach of contract. 5.suit for rent.

But these are not suits of civil nature,

1. A suit for a declaration of a member of caste refrained from invitation to a caste dinner.
2. A suit for expulsion of a member from caste.
3. Suits involving purely religious ceremonies.

What do you mean by Constructive res judicata? What is the Difference between res judicata and
constructive res judicata? Explain with examples.
The doctrine of constructive Res-judicata is provided in the Explanation IV of section 11 which explains 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 has been actually controverted and decided. The object of explanation is to compel the plaintiff or
the defendant to take all the grounds of attack or defense which were open to him.
The rule of Constructive res judicata is an artificial form of res judicata, and provides that if a plea could have
been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that
plea against the same party in a subsequent proceeding with reference to the same subject matter.
Difference between res judicata and constructive res judicata:
The distinction between Res Judicata and Constructive Res Judicata has been carved out in the case of
Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, wherein it was observed that
Section 11 contemplates actual res judicata while Explanation IV provides for constructive res judicata. When
by any judgement or order any matter in issue has been directly or explicitly decided, the decision operates as
res judicata in a matter in subsequent suit. It is also true in case of decision of court on an issue in an earlier suit
which is implicit. However, when any matter which might or ought to have been a ground of attack or defense
in the previous suit has not been raised in such suit, then it is deemed that the matter is constructively in issue
and is therefore taken as decided. This is rule of constructive res judicata.
EX.- RESJUDICATA - A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the ground as
the area of the land was less than the mentioned on the lease. The Court found that the area was greater than
shown in the lease. The area was excess and the principles of res judicata will not be applied.
EX- constructive - State of U.P. V. Nawab Hussain, AIR 1977 SC 1680 A, a sub-inspector of police was
dismissed from service by D.I.G. He challenged the order of dismissal by filing a writ petition in the high court
 on the ground that he was not afforded a reasonable opportunity of being heard before the passing of the order.
The contention was, however, negatived and the petition was dismissed. He then filed a suit and raised an
additional ground that science he was appointed by the I.G.P., the D.I.G. had no power to dismiss him. The state
contended that the suit was barred by constructive res judicata. The trial court, appellate court and the high court
held that suit was not barred, but the Supreme Court held that the suit was barred by constructive res judicata as
the plea was within the knowledge of the plaintiff and could well have been taken in the earlier writ petition

Res-judicata Estoppel
It results from a decision of the Court. Estoppel flows from the act of parties.

The rule is based upon public policy, viz that there should be an end to It proceeds upon the doctrine of equity; that he who by his
litigation. It bars multiplicity of suits. conduct, has induced another to alter his position to his
disadvantage cannot turn round and take advantage of such
alteration of the other's position.
It ousts the jurisdiction of a court to try a case and precludes an enquiry In other words, estoppel prevents multiplicity of
in limine. representations.
It prohibits a man averring the same thing twice in successive It is only a rule of evidence and shuts the mouth of a party.
litigations.
This rule presumes conclusively the truth of the decision in the former Estoppel prevents him from saying one thing at one time and
suit. It binds both the parties to a litigation. the opposite at another. The rule of estoppel prevents a party
from denying what he has once called the truth. i.e. estoppel
binds only that party who made the previous statement or
showed the previous conduct.

Res Sub Judice Res Judicata

Res Sub Judice, there must be two suits, one of which should be Res Judicata the motive is that ‘there must be an end to litigation’.
previously instituted. Thus, there is a bar on trial that has already been adjudicated.
The doctrine of Res Sub Judice is contained in section 10 of the The doctrine of Res Judicata is contained in section 11 of the Civil
Civil Procedure Code, which provides when and how it can apply. Procedure Code, including eight explanations that provide when and
how it can be applied.
Res Sub Judice prohibits proceedings of two parallel suits between Res Judicata prohibits the second trial of the same dispute between
the same parties.  the same parties.
Res Sub Judice, the previously instituted suit must be pending in Res Judicata, the previously instituted suit must be decided by the
the same court or any competent court having jurisdiction. competent court in which the issue has been raised subsequently.
Res Sub Judice, it applies to only suit, including appeal. Res Judicata, it applies to suit and applications.
Legal set off Counter claim
The provision for legal set-off is given under Rule 6 of order 8 of CPC. The provision for counter claim is given under Rules from 6A
to 6G of Order 8.
In a legal set-off, the defendant demands in a plaintiff’s suit an amount In a counter-claim, the defendant demands for a large amount.
below or up to the suit claim. The claim for excess amount is really a counter-claim.
Legal set-off is a right to adjust the claim of the plaintiff against certain A counter-claim is a claim made by the defendant in excess of
right or dues of the person entitled. the right claimed by the plaintiff.
Example: Where a servant sues his master for recovery of amount of Example: After a bank has sued a customer for an unpaid debt,
salary, the master can claim set-off for loss sustained by him due to the customer counterclaims (sues back) against the bank for
negligence of servant since it arises out of same relationship. fraud in procuring the debt. The court will sort out the different
claims in one lawsuit (unless the claims are severed).