CODE OF CIVIL PROCEDURE NOTES

Compiled by G.Vivekanandan, Advocate, Madras High Court

1. NECESSARY PARTY, PROPER PARTY & DOCTRINE OF DOMINUS

LITUS

NECESSARY PARTY

Introduction:-

1. Order I provides for Parties to the suit.

2. It also provides for addition, deletion and substitution of parties, joinder, mis-joinder
and non-joinder of parties and also objection as to non-joinder of parties.
3. Whether a party is necessary or not depends on the facts and circumstances of each
case.

Meaning of Necessary Party:-

A Necessary Party is the one whose presence is indispensible or against whom

relief is sought and without whom no effective order can be passed.

According to Order 1, Rule 10 of the Code, a person is considered a necessary

party if their presence for complete and effective adjudication of the dispute or if their
absence would risk multiple or inconsistent judgments.

Case Law:- Hardeva Vs Ismail (AIR 1970 Raj 167)

In this case, two tests have been mentioned for determining the question whether a
particular party is a necessary party to a proceeding:

1. There must be a right to some relief against such party in respect of the matter
involved in the proceeding in question.

2. It should not be possible to pass an effective order in absence of such party.

 PROPER PARTY

Meaning of Proper Party:-

A Proper Party is one in whose absence an effective order can be passed but
whose presence is necessary and final decision on question involved in proceeding.

In other words, the party is said to be a proper party whose presence is not a must
but his presence helps the court to adjudicate the disputed question more effectively and
completely.

Mis-Joinder & Non-Joinder of Parties:-

Order I, Rule 9 of the code says: No suit shall be defeated by reason of the mis-
joinder or non-joinder of parties and the court in every suit may deal with the matter in
controversy so far as the right and interests of the parties actually before it.

Provided that nothing in this rule shall apply to non-joinder of a necessary party.

Doctrine of Dominus Litus

1. Plaintiff is the domain (master) of the suit.

2. This doctrine gives the plaintiffs the right to decide who should be the parties
to the suit.

3. This right is not absolute.

4. It is subject to the provisions of CPC including Order I, Rule 10. (Court has
in its discretion, can add or remove parties to ensure that all necessary and
proper parties before it).

5. This doctrine is based on the premise that it is the plaintiff who is aggrieved
and therefore, he should have the right to decide against whom he wants to
fights the case.
 2. REPRESENTATIVE SUIT

Introduction:-

1. Order I, Rule 8 of the code, defines Representative Suit.

2. The general rule is that all persons interested in a suit ought to be joined as parties to
it. Rule 8 forms an exception to this general rule.
3. The object of the rule is to afford convenience in suits where there is community
interest among large number of persons so that a few should be allowed to represent.

Definition:-

A Representative Suit is a suit filed by or against one or more persons on behalf of

themselves and others having the same interest in the suit.

Conditions for a Representative Suit:-

There are 4 essential conditions for a party to institute a representative suit under
Order 1, Rule 8 of the code are:

1. The Parties are numerous

2. Same interest or community of interest.
3. Necessary permission of the court has to be obtained.
4. Notice to all the persons interested in the suit.

Applicability of Res-Judicata:-

Order I, Rule 8(6) of the code, provides that a decree is binding on whose behalf
or for whose benefit the suit is instituted. Therefore, Section 11 of the code is applicable
to representative suits also.
Addition and Substitution of Parties:-

Order I, Rule 8(3) of the Code provides that any person on whose behalf a suit is
filed or defended, may apply to the court to be added as a party to the suit. Such person
must show that the conduct of the suit is not in proper hands and that his interests will be
seriously affected to his prejudice if he is not joined as a party to the suit.

Order I, Rule 8(5) of the Code provides that where any person suing in such
capacity or defending a representative suit does not proceed with due diligence in the suit
or defence, the court may substitute in his place any other person having the same interest
in the suit.

Abatement:-

A Representative Suit does not abate on the death of the representative as he or

she can be substituted by another member of the plaintiff.

Case Law:- Tamilnadu Housing Board Vs. Ganapathy (1990)

In this case, residential buildings were allotted by TNHB to the applicants who
belong to low income group. After settlement of price, excess demand was made by
TNHB.

The allottees challenged the demand by filing suit in a representative capacity.

TNHB contented that the suit was not maintainable as separate demand notice
were issued against each allottees and raise to separate cause of action.

Negativing the contention, the Supreme Court held that all of them had the same
interest and therefore the suit was maintainable.
 3. JURISDICTIONS OF A CIVIL COURT

Introduction:-

1. The meaning and concept of jurisdiction is not explained in the code.

2. Jurisdiction is defined as the power authorities of the court to adjudicate the cases,
appeal suits and to render a particular judgment in the law.
3. In other words, to deliver justice ordered within reference to the subject matter
pecuniary value and local limits.

Types of Jurisdiction:-

1. Territorial Jurisdiction
2. Pecuniary Jurisdiction
3. Jurisdiction as to subject matter

Territorial Jurisdiction:-

1. Every Court has its very own territorial limits far away in which it cannot operate
its jurisdiction, these limitations are fixed by the government.

2. The District Judge has to operate jurisdiction within his district.

3. The High Court has jurisdiction over the territory of state within which it is
situated and not beyond it.

Pecuniary Jurisdiction:-

1. A Court will have jurisdiction only over as the amount or value of the subject
matter of which does not extend the pecuniary limits jurisdiction.

2. Some Courts have unlimited pecuniary to restriction like High Courts and District
Courts have no pecuniary limitation.

3. Munsiff Courts and Small Causes Courts having jurisdiction to try the dispute to a
particular amount.
Jurisdiction as to subject matter:

1. Different Courts have been empowered to decide different type of suits.

2. Presidency Small Causes Court has no jurisdiction to try suits such as Specific
Performance of a contract, Partition of immovable property, foreclosure and
redemption of a Mortgage.

3. In respect of Testamentary matters, Divorce Cases, Probate proceedings, only the

District Judge has the jurisdiction.

4. DOCTRINE OF CONSTRUCTIVE RES-JUDICATA

Introduction:-

1. Explanation IV of Section 11 of the Code, speaks about the Doctrine of

Constructive Res-Judicata.

2. This Doctrine seeks to prevent the determination of claims which were failed to be
brought at the appropriate time in earlier proceedings.

Constructive Res-Judicata:-

1. Constructive Res-Judicata means if a plea could have been taken by a party in a

proceeding between him and his opponent and if he fails to take that plea, he cannot
be allowed to re-litigate the same matter again upon that plea.

2. In other words, if a matter which might and ought to have been raised by the plaintiff
in the former suit is not raised him, there he would be estopped from raising the same
question in a subsequent suit between the same parties. Similarly, the defendant did
not raise all the objections in the former litigation, he will be barred from raising in a
subsequent suit.
Conditions for applying Constructive Res-Judicata:

1. Firstly, the parties involved in both proceedings must be the same.

2. Secondly, the subject matter of the subsequent proceeding should be identical to that
of the earlier proceeding.

3. Thirdly, the issue raised in the subsequent proceeding should have been directly and
substantially in issue in the earlier proceeding.

4. Lastly, the earlier proceeding must have resulted in a final decision on merits.

Case Law: State of Uttar Pradesh Vs. Nawab Hussain

In the 1st Writ Petition, he challenged dismissal order for not given a reasonable
opportunity to be heard and dismissed.

In the 2nd Writ Petition, he challenged the authority who issued dismissal order
and High Court and First Appellate Court opined that Constructive Res-Judicata not
applied.

But, Supreme Court took a different stand that the Doctrine of Constructive Res-
Judicata applied to the case.
 5. INTERPLEADER SUIT

Introduction:-

1. The term of ‘interpleader litigation’ are covered under Section 88 and Order 35
of the Code.

2. It is a powerful tool designed to protect the rights of individuals and entities who
find the conflicting interests.

Interpleader Suit:-

1. An ‘interpleader suit’ is a legal action initiated by a person is covered under

Section 88 and Order 35 of the Code.

2. Interpleader means “to litigate with each other to settle a point concerning a third
party”.

Conditions to institute Interpleader Suit:-

Following conditions must be satisfied to institute an interpleader suit:

1. There must be some debt, sum of money or other property movable or

immovable property in dispute.

2. Two or more persons must be claiming it adversely to one another.

3. The plaintiff who claiming such debt, money or property must not be claiming
any interest therein other than the charges and costs and he must be ready to
pay or delivery it to rightful claimant.

4. There must be no suit pending in which the rights of the rival claimants can be
properly decided.
Essentials of an Interpleader Suit:-

1. Disputed debt or property.

2. Multiple Claimants
3. Disinterested Claimant
4. No pending suit

Statements necessary for Plaints:

1. To state that the plaintiff claims no interest in the subject matter in dispute other
than for charges and costs.

2. That there is no collusion between the plaintiff and any of the defendants.

3. That the claims have been made by the defendants separately.

6. INDIGENT PESON
Introduction:-

1. The term ‘indigent person’ refers to a person who is suffering from extreme
poverty.

2. In legal term, an indigent person does not possess the financial capacity to pay the
court fee.

3. Order 33 of the Code deals with suits by indigent person and provides remedy to
those who need to institute a suit for the enforcement of their rights but they
cannot afford court fee etc.

Meaning:-

1. According to Order 33, Rule 1 of the code, a person is an indigent person if he is

not possessed of sufficient means to enable him to pay the court fee.
 2. The word person mentioned in Order 33 includes not only a natural person but
other juridical person also.

Inquiry into the means of an indigent person:-

Order 33, Rule 1A of the code states that the Chief Ministerial Officer of the court
has the authority to do an inquiry.

Contents of the application:- (Order 33, Rule 2)

1. Particulars of all movable or immovable properties of the indigent

person/applicant along with its estimated value.

2. The indigent person/applicant shall himself in person, present the application

before the court.

Rejection of application:-

1. When an application is not framed and presented in the prescribed manner (R.2 &
R3).
2. When an applicant not an indigent person.
3. When an applicant has fraudulently disposed of any property.
4. Where there is no cause of action or barred by any law.
5. Where any other individual enters into an agreement with the applicant to help
him financially in the litigation.

Case Law:

1. Union Bank of India Vs. Khader International Construction (2001) 5 SCC 22

1. Order 33 is an enabling provision which allows filing of a suit by an indigent

person without paying the court fee at the initial stage.

2. If the Plaintiff succeeds, the court would calculate the amount of court fee and that
amount would be recoverable by the state from any party ordered by the decree to
pay the same.
 2. Dr.Neena Mohan Vs. John Varghese (2019 SCC Online Ker 13269)

The term ‘sufficient means’ in Order 33, Rule 1 of CPC, therefore refers to the
ability or capacity of an individual to raise money in an ordinary course of living.

3. RV Dev Vs. Chief Secretary, Govt. of Kerala (2007 5 SCC 698)

It was held that the payment of court fees as the scheme is merely deffred. It is not
altogether wiped off.

7. INTERLOCUTORY APPLICATION
Introduction:-

1. To meet the ends of justice and to render timely justice to the parties, the
mechanism of filing Interlocutory Application is to an extent indispensible in Civil
proceedings.
2. The main purpose of filing Interlocutory Application is to protect the rights of the
parties and also stop parties from acting unethically.

Interlocutory Application:-

An application to the Court in any suit, appeal or proceeding already instituted in

such court other than a proceeding for execution of a decree or order.

Types of Interlocutory Applications:-

1. Injunctive Relief: Orders that stop the other party from doing something.

2. Particulars: Orders to compel a party to provide particulars (details).

3. Discovery: Orders to compel a party to provide certain documents sought by the

other party through discovery process.

4. Subpoenas: Subpoenas are Orders to determine whether a party can ask a third
party to provide certain documents.

5. Interrogatories: Orders to compel the other party to answer certain questions,

required to determine a position on a matter in dispute.
Enquiries and Orders in Interlocutory Applications:

Section 94 of the Code, the Civil Court has powers to order with regard to
different types of Interlocutory Orders for Temporary Injunctions, Attachment before
Judgment, Appointment of Advocate Commissioner and Receivers, etc.

8. CAVEAT PETITION
Introduction:-

1. The term ‘Caveat’ is not defined in CPC.

2. The right and procedure to file a Caveat have been provided under Section
148A and Order 52 of CPC.

3. Section 148A has been inserted by the amendment act 1976.

Meaning of Caveat:-

1. The word ‘Caveat’ is derived from latin, meaning “let a person be aware”.

2. A Caveat Petition is a precautionary measure which is undertaken by the

parties who having a very strong apprehension that some case is going to be
filed in the court regarding their interest in any manner.

Caveator:-

The Person by whom the Caveat has been lodged is called a Caveator.

Who may lodge a Caveat?

Any person claiming a right to appear before the court, where an application is
expected to be made.

Duties of the Caveator:-

The Caveator shall serve a notice of the Caveat by registered post,

acknowledgement due, on the person by whom the application is expected to be made.
Duty of the Court:-

After a Caveat has been lodged, if any application is filed in any suit or
proceeding, the Court shall serve a notice of the application on the Caveator. This is
mandatory in nature.

Time Limit:-

A Caveat shall be valid not more than 90 days from the date of filing. After the 90
days period has passed, afresh Caveat may be filed.

How to file a Caveat Petition:-

A prescribed form in Appendix D1 has been created for filing of a Caveat Petition
which consists of:

1. The name of the Court where the Caveat Petition has been filed.
2. If a suit, petition or appeal has been filed, the number if that appeal or suit.
3. Name and address of the person filing Caveat Petition.
4. Name and address of the opposing party
5. A complete description of the matter on which the Caveat Petition is filed.
6. If a Caveat Petition is filed in the case of an appeal or writ petition, the Caveator
should also attach a copy of the decision against which he believes the opposing
party can file an appeal or writ petition.
7. The Caveat Petition also accompanied with Vakalat.
8. The Caveator must serve the notice to the opposing party through registered post
and the same is enclosed in the Caveat Petition.

Case law: RBI Employees Association & another Vs. RBI & others

Whether an order of stay that is made without hearing the Caveator is

unenforceable or is a nullity?

It was observed that by the Supreme Court that an order that was issued without
giving the Caveator adequate notice cannot be deemed invalid.
 It was decided that even if the Caveator was informed the date of hearing, the
mere filing of a Caveat Petition would not limit the Court’s authority.

The Caveat is merely the person’s right to be notified, but this cannot prevent the
court from making an interim order on the merits of the case.