CIVIL

PROCEDURE
CODE
&

Law of Limitation
by

N. Bhagya Lakshmi

Contact details

9849528129
[email protected]
m

What
WhatisisCPC?
CPC?
What
Whatisisthe
the
PURPOSE?
PURPOSE?

UNIT
1

ntroductio
ntroductio
nn

Criminal Law & Civil Law

LA
W

Major Differences
Civil
Wrong vis--vis
another individual.
Prayer...monetary
compensation/other.
Burden of proof...can
be shifted

Criminal
Considered...against the
society.
Prayer...punishment /
jail
Burden of proof...always
on the state

INTRODUCTION
INTRODUCTION
TO
TO

Admn. Of
Admn. Of
JUSTICE
JUSTICE

IVILLLAW
AW
CCIVIL
SUBSTANTIAL LAW
SUBSTANTIAL LAW

PROCEDURAL LAW (or)

PROCEDURAL LAW (or)
Adjective
Adjective

DETERMINES
DETERMINES

MACHINARY
MACHINARY

RIGHTS & LIABILITIES

RIGHTS & LIABILITIES

ENFORCEMENT OF
ENFORCEMENT OF
RIGHTS & DUTIES
RIGHTS & DUTIES

Ex. CONTRACT ACT, T.P

Ex. CONTRACT ACT, T.P
ACT, I.D ACT
ACT, I.D ACT

Ex. CPC, CrPC, IE Act

Ex. CPC, CrPC, IE Act

Cont...
S ubstantive......
Define the relationship
Explains......to understand their
rights
Deals with Rights, Duties & Liabilities
The efficacy of substantive laws
depends ...... procedural law.

Cont...

P rocedural......
Governs the process of litigation
Method to achieve Rights...
......an aid to justice
Lay down the rules to be
followed by the courts

Cont...
CPC...........one of the major and main
procedural laws
For enforcement of civil rights and
remedies through civil courts.
Governs the process of Litigation

Cont...
The major concern of law is conflict
resolution.
Procedural laws are important
........ for implementing and enforcing of
rights
&
remedies
provided
in
substantial law
.... regulate the functioning of civil
courts

Cont...
...... procedure for adjudication of disputes
Provides a fair procedure for redressal of
disputes
Ensure procedural regularity in civil
litigation
......is an adjunct or an accessory to
substantive law

Therefore in this semester.....

.......this course is a part of study.
the study covers ....
procedures to be followed by the
civil courts
from the institution of suits to till the
final disposal.

Cont...
This course will also purse civil litigation
............through appellate courts, examining
the corrective steps available in civil
proceedings.
...clear idea regarding imp. Steps that are
usually taken in an ordinary suit
This course also deals with the Law of
Limitation as applicable to civil proceedings.

Cont...
.....designed to facilitate Justice and
further its end
Regulating access to court and to justice
Maintain speedy and effective process
Achieving just and effective out comes
Specific rules for proceedings of case
........systematic and formal way

Cont...
Code construed liberally
......and technical objections should not be
allowed to defeat substantial justice
....... not merely based on the black letter of
law and procedure.
It takes into account humanist perspective
while charting out the procedure

???

Find out the nature of case

If it is in

civil nature..

Ubi jus ibi remedium

Fundamental principle.....
.....adopted by Indian legal system
Means......
Wherever there is a right...
There is a remedy

Civil rights
Means
Rights & Duties vested with
citizens
For enforcement of .such rights and
liabilities

?????
Civil Suit.....
No definition provided in code
If any dispute involves
........determination of civil rights

Essential.....

Litigants
The person who brings an action at
law.?
Plaintiff
Opposite party .?
Defendant
Legal person only can sue..

STAGES OF THE SUIT

 Persons fail to solve

Persons fail to solve
a dispute
a dispute
Approach the court
Approach the court
Filing a case
Filing a case
To settle the disputes
To settle the disputes
Declare & Establish
Declare & Establish
individual rights
individual rights
Regarding the
Regarding the
matters in dispute
matters in dispute
CPCaid to justice
CPCaid to justice

STAGES
Institution of the Suit

Arguments

Issue of Summons

Judgment

Filing of Written
Statement

Appeal, Revision,
Review

Framing of Issues
Evidence of Parties

Trial

Chief Examination
Cross Examination
Marking of Documents

Orders & rules 51

Cont
Section
lays down the general principles of
jurisdiction
Rules
...prescribeMethod & Manner
Both.read
together
&
construed harmoniously

CPC...
Civil Procedure Code,

1908

Prior to 1908.
What was the position of disputes?

Cont
Before 1859- ?
No uniform civil code procedure
1859 Code..ill arranged, incomplete &
unsystematic.
1877 Code.some defects.1882 Code..
Present Code1908 Code..

Still
o 1908 Code exists as it is..
o Still .in force
o ..with extensive amendments
o What are the major amendments?
o Object..behind amendment

Amendments

Major amendments
1976.1999.2002.
Object
to keep procedural law in tune with
changing needs of society & even
technological advances.

1976
To ensure more expeditious disposal
Minimize the litigation
Ensure fair trail

Cont
S. 35 A & 35 B
inserted.to

provide

compensatory

costin respect of false claims

No order for detention .decree does not
exceed Rs.500/ Provision..insertedfor free legal aid
Incorporated..suits related to family

2002
Time limit.fixed
Adduce the evidenceby affidavit
..for

settlement

disputes.through

of

conciliation,

arbitrationLok Adalath..

Objective of
Civil procedure code
Consolidate and amend
..means
To collect the statutory law
Relating to particular subject
To bring it up to date

Features
Regulating access to court & Justice
Ensuring the fairness of process
Maintaining speedy & effective
process
Achieving just & effective out comes

Case Law
?????

AIR 1996 SC 2510

SUKHBIR SINGH & ORS.

V.
BRIJ PAL SINGH & ORS.

Suit filed....

....... for specific performance

Facts....
pleading that...... despite his readiness
and willingness
.........had avoided to sell the property
despite several requests............
........ failed to execute the sale deed.

Cont..
Though .......tried to reach out them

intentionally avoided to execute the

sale deed in their favour.
Consequently,

their

efforts

to

have

the

property reconveyed failed

So, .................suit for specific performance of
the agreement

Plea of the def...

.......agreed........executed

agreement

of

reconveyance,
.......they

were

always

ready

and

willing

to

perform their part of the agreement.

plaintiff did not have sufficient means to pay the
sale consideration
....filed the suit only to blackmail the petitioners.

Trail court
After framing proper issues
.........dismissed the suit

On what ground?


holding that
the plaintiff had failed to prove
.......that they were willing to perform their
part of the contract nor have they enough
funds to purchase the lands in dispute

On appeal.....
o Additional District Judge........
o .....allowed and decreed the suit
o Before H.C
o Second appeal filed.......

o dismissed

Before S C......
Issue.....
Is the Plaintiff required to show his
capacity......before the court

????
What substantive law provides..
What is the duty of procedural law?
According to Sec 16 (1) ( c ) of

???

The Specific Relief Act, 1963

Explanation...
where a contract involves the payment of
money, it is not essential for the plaintiff to
actually tender to the defendant or to
deposit in court any money except when
so directed by the court;
the plaintiff must aver performance of, or
readiness and willingness to perform, the
contract according to its true construction.

Interpretation
Law is not in doubt and
it is not a condition that the plaintiff should
have ready cash with them.
The fact they attended the Sub-Registrar's
office to have the sale deed executed

Cont.
......is a positive fact to prove that they had
necessary funds to pass on consideration
and had needed money with them for
payment
.....at the time of registration.

Cont...
it is sufficient for the plaintiff
to establish that they had the capacity to
pay the sale consideration.
It is not necessary
they should always carry the money with
them
from the date of the suit till date of the
decree.

Finally.
be clear that the courts below have
appropriately exercised their discretion
for

granting

the

relief

of

specific

performance on sound principles of law.

The petition is accordingly dismissed.

prl. Involved
Sukhbir singh V. Brij Pal Singh AIR 1996 SC
2510
..Court explained procedural law is
always subservient to substantive Law. The
procedure

is

handmaiden

substantive rights of the parties.

to

the

Case-Law:

Ghanshyam Dass
Vs.
Dominion of India
AIR 1984 SC 1004

Court says..
.........passed to provide the regulation and machinery
by means of which the Courts may do justice between
the parties.
It is therefore merely a part of the adjective law
and deals with procedure alone
and must be interpreted in a manner so as to sub serve
and advance the cause of justice rather than to defeat
it.

Cont

Our laws of procedure are based on the

principle that
"as far as possible, no proceeding in a court
of law should be allowed to be defeated on
mere technicalities

Case Law
Saiyad Mohammad Baker
V.
Abdul Habib
AIR 1998 SC 1624

SC explained....
.. law is always in aid of justice,
not in contradiction or to defeat the very object which is
sought to be achieved.
A procedural law is always 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.

EE
TT
OO
SS
CC
II
NN

99

J J UU RR I I SS DD I I CC TT I I OO NN

Section 9
......confers jurisdiction over the
civil courts
means
authoritydecide
mattersfor adjudication

Cont

Courts to try all

barred

civil suits

unless

Jurisdictio
Jurisdictio
n
n
Over the
Over the
subject
subject
matter
matter

Territorial
Territorial

pecuniary
pecuniary

Try certain
Try certain
matters

matters

certain court
court
certain
by statute
by statute

Territorial
Territorial
limit
fixed
limit
fixed
by Govt.
by Govt.

Depending
Depending
upon
upon
pecuniary
pecuniary
value
of suit
value of suit

Furthe
Furthe
r
r

Original
Original

Appellate
Appellate

Nolimit
Nolimit
to
HC &
to
HC &
DC
DC

Bar of Suit
Expressly
Barred

Impliedly
Barred

Barred by the any

enactment passed by
the legislature

Barred by general
principles of law & equity

Expiry of
Limitation

Stay/Resjudicata
comp. Arb. Cl.

Jurisdiction

Cause of Action

Limitation

Relief

Jurisdiction

Relief

Cause of Action

Limitation

Cause of Action
foundation of the suit
bundle of essential facts
Antecedent to the institution to
the suit
If plaint does not disclose
court will reject

Limitation.
.related to period
..for barring legal action
Object..
..Should be a limit to litigation
controversies ..restricted ---fixed period of time
Remedy..exercised..only up to
specific periodnot subsequently..

Relief.....
Acc to Order 2 Rule 2.......
Every suit shall include ......
the whole of the claim ....
........omits to sue .........any portion of his
claim
........ shall not afterwards...... sue in
portion so omitted

cont..
Acc to Or.7 R.7
.Should be specific
May..rely upon several .different
rights
Alternatively.
Excess relief
Other relief.

Interpretation of cause of
action.......

Case-law

Sidramappa
Vs
Rajashetty & ors
AIR 1970 SC1059

Facts.....
Pet. Filed before the executing court......
.....to reopen proceedings in respect of
certain properties
and to implead the legal representative of
the owner of the properties
......claiming that as the adopted son & he was
entitled to delivery of possession .
.........Court

dismissed the application

Cont....
......holding that his remedy was by way of a separate
suit.
........he filed a suit for a

declaration

......was entitled to be impleaded in the execution

proceedings
as legal -representative and proceed with
execution.

the

Cont....
.......The purported cause of action for suit
was ......
the dismissal
for

of the

impleading

in

earlier
the

application
execution

proceedings
.dismissed.. It was hit by s. 42 of the
Specific Relief Act

Section 42 of Specific Relief Act..

Injunction to perform negative agreement.

where a contract comprises an affirmative agreement to do a
certain act,
coupled with a negative agreement, express or implied, not
to do a certain act,
the circumstances that the court is unable to compel specific
performance of the affirmative agreement
shall not preclude it from granting an injunction to perform the
negative agreement

Next.

filed another suit on the basis of his title.

Declare him as a LR of owner
.......trial court dismissed the suit
......on the ground that
the relief in question was barred by Order

Before H.C..

Issue..
.....whether the plaintiff's claim in respect of
the properties was barred by Order 2
rule 2 of C P C?
H.C affirmed.....
..aggrieved party

Object of Or.II R.2

no def.....sued and vexed ......regard
to ....same cause of action
To prevent a plaintiff....
To split the claim & remedies

Supreme....
o The High Court & trial court proceeded on the
erroneous basis
o ..... former suit was .......for a declaration of the
title to the properties in question.
o The requirements of Order 2 rule 2 CPC.....
o whole of the claim ........."cause of action."

Cont....
'Cause of action' means .....

.............which the suit was brought'.

It cannot be said that
.... ......the cause of action
on which the
present -suit was
brought is the same as that in the
previous suit.

Cont....

In the instant case

the cause of action on the basis of......
which the previous Suit was brought does
not form the foundation of the present suit.

finally.....
In that suit he could not have claimed the relief
which he seeks in this suit.
Hence the trial court and the
not right

High Court were

......in holding that the plaintiff's suit was barred

Doctrine of
Res Subjudice

Cont
Cases
Cases
Two/ /
Two
More
More

Samesubject
subject
Same
matter
matter
Competentcourt
court
Competent
Powerto
tostay
stay
Power

Same
Same
Partie
Partie
ss

Sec. 10
Simplystay of suit
Where things are pending
..For adjudication
??????
applies to the trial
not to institution

Sec.10 deals.
No Court shall proceed.
............. with the
in which the

trial

of any suit..

matter in issue

directly and substantially

in a previously instituted suit
between the same parties

Trial.
Means..
Judicial examination
Determination of the issue
Matter in issue.means..
.Disputed material questions

Object

to avoid
.conflict decisions
wasting court resources
to prevent courts of
concurrent jurisdiction

Cont
Any decreepassed in violation of
section 10.
Null & Void

Essentials.....
previous suit ........pending in a court;
The matter in issue .........
directly and substantially in issue
The court in which the previous suit is pending
..............has jurisdiction to grant the relief
claimed in the subsequent suit

Cont.....
o The parties in the subsequent suit
o .........must be the same as in the
previously instituted suit
o The parties must be litigating ...
o ........under the same title in both the suits

Case law

AIR 2005 SC
242

AIR 2005 SC 242

National Institute of Mental Health and

Nuero Sciences
V
C. Parameshwara

Facts
Respondent

..senior pharmacist in

Appellant institute
he

was

charge-sheeted

for

alleged

misappropriation of drugs to the extent of

Rs. 1,79,668.46.
Acc to enquiry officer

report. was

responsible for shortages of drugs

disciplinary authority order

.removal of respondent from service
and also directed .. to reimburse the
appellant to the extent of pecuniary loss
suffered
Being aggrieved,
..the

respondent

appellate authority.

..

moved

the

During pendency
..of the above matter..
the appellant filed civil suit seeking a
decree for Rs. 1,79,668.46 with interest
On failure on the part of the respondent to
reimburse the loss

During pendency of civil suit

the

Govt.

referred

the

respondents

dispute to the Labour Court

for

adjudication.
The question..
whether the action of the appellant in
removing

the

respondent

service was justified.

from

Issue by civil court

main

issue

being

whether

the

Institute proves that the respondent

has caused pecuniary loss of Rs.
1,79,668.46.

Labour Court order

set aside the order of removal
and

directed

reinstatement

continuity of service
but without back wages.

with

Cont..
Aggrieved by the award of the Labour
Court,
the appellant preferred writ petition
By interim order .. the High Court
stayed the operation of the order of
reinstatement

In civil suit
the

res.

filed

an

application

under

Section 10

sought stay of the said suit till

disposal of the writ petition

Petition was dismissed

Cont.
Being aggrieved,
filed Civil Revision Petition before the
High Court
High Court

stayed

the said civil suit

H.C also.
directed expeditious disposal of the writ
petition within three months;
in the event of ..failing to dispose ..
within three months,
liberty was given to the appellant to
proceed with the suit up to the stage of
final orders

Cont..

however, the registry was directed not to

draw-up the final decree,
till the disposal of writ petition

Before SC..

whether the stay application filed by

the respondent under Sec.10 read
with Sec. 151 CPC was maintainable?

SC explained.
The language of Section 10 suggests that
it is referable to a suit instituted in the civil
Court
and it cannot apply to proceedings of
other nature instituted under any other
statute

In this..
The
appellant
had
initiated..
the
disciplinary proceedings misappropriation
of drugs.
..was found guilty
On the basis of the findings
of the
disciplinary enquiry,
the respondent.. was removed.
The extent of the loss suffered by the
appellant, as found in the disciplinary
enquiry, was Rs. 1,79,668.46.

Cont..
moved the Labour Court passed an
award setting aside the order of removal
next the appellant instituted
.. writ petition & also instituted civil
suit for recovery of the loss

Cont
Thus, as can be seen from the above facts,
both the proceedings operated in different
spheres.
The subject matter of the two proceedings
is entirely distinct and different

Cont.
The cause of action in filing the said suit
.is the loss suffered by the appellant on
account of the shortage of drugs.
On the other hand, in the said writ petition .
the management has challenged the award of
the Labour Court granting reinstatement of the
respondent

Acc to Sec.10
The proceedings before the Labour Court cannot
be equated with the proceedings before the Civil
Court.
They are not the Courts of concurrent jurisdiction.
In

the

circumstances,

Sec.10

application to the facts of this case.

CPC

has

no

Cont.
o scope of the writ petition filed by the

management
o entirely distinct and separate from the suit
o Acc to SC view.
o the High Court had erred in directing the
trial

Court

not

to

proceed

drawing up of the decree.

with

the

Finally
Section 10 CPC has no application
and consequently, it was not open to the
High Court
to bye-pass Section 10 CPC by invoking
Section 151 CPC.
the appeal is allowed.
The impugned judgment and order of the
High Court is set aside

EXCEPTIONS
EXCEPTIONS
to
to
Res
Res Subjudice
Subjudice

Summary suit
Another recognized method
.can be laid when the
suit is on the basis of
a bill of exchange, hundi, or
pronote or
when the suit arising on a
written contract or guarantee

Cont
court issues notice to the defendant
.to explain why the suit shall not be

decreed.
The defendant.. shall appear before the

court within ten days

court .decreed the suit straight away

Cont
Order 37 ..provides for the summary
procedure.
Jurisdiction?
HighCourts,
CityCivilCourtsand
CourtsofSmallCauses

Cont
o A Summary suit
o is intended to facilitate the speedy
disposal of cases.
o The object
o .to guard against delaying tactics
o who may have no genuine defence.

Difference between
Summary & Ordinary
suit

Summary and ordinary

Suits ..bill of
exchange,
hundies and
promissory notes
are only governed
by order XXXVII
The defendant
may enter
appearance with
in 10 days

All suits of civil

nature are
governed by the
procedure
enumerated in
the C P C
.With in 30
days

Cont
Defendant is not
permitted to file
written statement
without leave of
the court
Permission to file
written statement
may be conditional

Defendant may file

written statement
as of right
Court cannot
impose condition.
But it must be filed
within specified
period

Cont..
Provisions of
summary
procedure are not
of general
application
Leave to defend
may be refused by
the court

It has general
application
Court cannot
refuse to accept
the written
statement if it is
filed within the
time fixed by the
court

Cont
Order XXXVII is
applicable
to
High
Courts,
City Civil Courts
and courts of
small causes

It is applicable to
all civil courts of
original jurisdiction

Case law

Indian bank
vs.
Maharashtra state Co-op fed. Ltd.
AIR 1998 SC 1952

Facts.....
Bank filed Summary Suit
under Order 37
against the
Federation
.for recovery of an amount for Rs.
4,96,59,160/ Federation appeared before the Court
........seeking stay of the

summary suit on the

ground......??????

Cont....
that it has already instituted a suit
against
the
Bank
for
recovery ...3,70,52,217.88
prior to the filing of the summary
suit.
A learned Single Judge of the Bombay
High Court......??????

Acc .....Single judge.....

o .......held that the concept of trial as contained
in Sec. 10 ......
o applicable only to a regular/ ordinary suit
o and not to a summary suit filed under Order
37
o therefore,

further

proceedings

under

Summary Suit were not required to be stayed.

Cont.....

.....no merit in the defence raised by

the Federation.
Petition dismissed........
Aggrieved by the order of the
learned Single Judge ........
Federation
Preferred an appeal.......

Division bench....

.the word 'trial' in Section 10

has not been used in a narrow sense
and would mean entire proceedings
after the defendant enters his
appearance, held that sec.10 applies
to a summary suit also.

Cont......
summary suit ........
subsequently instituted
suit was required to be stayed.
set aside the orders
stayed the summary suit

The question........

whether the bar to proceed

with the trial of subsequently
instituted suit, contained in
Section 10
is applicable to
summary suit filed under Order
37 of the Code.

Before S.C...
learned Single Judge was correct .....
Division Bench has committed an error
of law in taking a contrary view. .....
if Sec.10 ..... applicable to summary suit
very object of making a separate
provision for summary suits
.......will be frustrated

Cont.....
Sec. 10 is a general provision
applicable to all categories of cases.
Order 37 apply to certain classes of
suits.
One provides a bar against proceeding
with the trial of a suit,
the other provides for granting of
quick relief.

Cont....
Both these provisions ........to be
interpreted harmoniously
so that the objects of both are not
frustrated.
Acc to.....37....the defendant has to
file an appearance within 10 days of
the service of summons and apply
for leave to defend.......

Finally....

.........it was not proper

to apply the interpretation of
word 'trial' in that case while
interpreting Section 10 in the
context of Order 37 of the Code
Appeal allowed.

Doctrine of
Res-Judicata

Res judicata
Bar to .

Between same

Try the suit

Parties & Title

Sec.

Finally decided

On merit by
competent court

APPLICABILITY
APPLICABILITY
Suit dismiss for default
Suit dismiss for default
Exparte Judgment
Exparte Judgment
Writ Proceedings
Writ Proceedings
Withdrawal of Suit
Withdrawal of Suit
Execution Petition
Execution Petition
Compromise Decree
Compromise Decree

KINDS
ACTUAL

An issue has been

alleged by one party
and either denied
or admitted.

CONSTRUCTIVE

ought to have been

made ground of claim
or defense in a former
suit,
but a party ignores
it.

Technically.....

..........means that a matter in issue

which has already been tried by
competent Court,
then trial between the same parties
........in-respect of the same matter
shall not be allowed.

Means.....

prevents .re-litigation
Issues ........ judicially determined.
appealing a previously determined
issue is fine,
- but re-litigating it is not.......

This Doctrine

Fundamental concept
Enacts once matter finally
decided
No party can be permitted
reopen it---- subsequent
litigation

Cont
Partyonce succeeded..
should not be harassed
multiplicity of proceedingssame
issue
Absence of ruleno end to litigation
Partiesconstant trouble, expenses
& harassment.

Cont
One suit one decision enough for
any single dispute
Appliespast & future litigation
Sec.11 of CPC deals
Mandatoryplea of lawtouches
the jurisdiction of the courttry
the proceedings.

Pre-Requisites
must be a final judgment
on merits
claims must be same in the first &
second suits
.enacts once matter is finally
decided.
no party can be permitted to re-open it
in subsequent litigation.

Based
on
Three Maxims
Nemo debit bis vexari pro una et eadum
causa.means.
no man should be vexed twice for the same
cause

Cont

Interest republicae us sit finis litium.means.

It is in the interest of the state that there should
be an end to litigation.
Res judicata pro vertitate occipitar means.
A judicial decision must be accepted as correct.

Satisfied.....
Matter
directly/substantially
issuein the subsequent suit
same parties
same claim
under the same title
It may be issue of fact or law

in

Hari Chand Vs Faridabad complex, Admn,

AIR 2005 SC 2429
Where earlier suit for availing benefit of
pension scheme
was decreed by civil court
.therefore subsequent suit for same
relief by appellants,
not party in earlier suit
though similarly placed
not barred by res judicata

Bhanu Jain Vs. Archana Kumar

A I R 2005 S C 626

When an exparte decree is passed,

defendant has two options,
one to file an appeal
and another to file an application for
setting a side,
but in event application is dismissed
defendant can only file an appeal...

???????

..S.C placed doctrine on higher

footing,
Considering & treating the binding
character of ..
Judgments pronounced by competent
court
As an essential part of rule of law

Case-law

Daryao And Others

Vs
The State Of U. P. And
Others
AIR 1961 SC 1457

Explained
the point to consider
.. the nature of the decision

pronounced
by a Court of competent jurisdiction
and what is its effect.

Cont
Thus considered there can be no
doubt that
if a writ petition .. dismissed
on the merits by the High Court
the
judgment
thus
pronounced is binding between
the parties

Cont..
.cannot be circumvented or bypassed by his taking recourse to Art.
32of the Constitution.
.. not satisfied that the ground of
alternative remedies is well founded.

Cont..
It would not be open to a party
to ignore the said judgment
and move this Court underArt. 32by
an original petition made on the same
facts
and for obtaining the same or similar
orders or writs.

Cont..
If the petition filed . underArt.
226is dismissed not on the merits
but because of the laches of the
party applying for the writ
held that the party had an
alternative remedy available to it

Cont
then the dismissal of the writ
petition
would not constitute a bar to a
subsequent petition under Art. 32
.except in cases where and if the
facts thus found by the High Court
..may themselves be relevant even
underArt. 32.

Cont..
If a writ ..is dismissed in limine
.. an order is pronounced in that
behalf,
.whether or not the dismissal would
constitute a bar would depend upon the
nature of the order.
If the order is on the merits it would be a
bar

Case -laws
Gulam Sarwar vs Union of India
A I R 1967 SC 1335
Lallubhai vs Union of India
A I R 1981 SC 728
Vishnu Dutt vs Land Acquisition collector
A I R 2005 SC 3165

COURT PRONOUNCED..

The doctrine of resjudicata..

Is not made applicable to cases of

Habeas corpus pet..

Case Law
Satyadhyan Ghosal
vs.
Deorjin Debi
AIR 1960 SC 941

....has explained....

The prl. Based on .....need of

giving a finality to judicial
decisions
Once res is judicata
It not to be adjudged again

Resjudicata

.in compromise decree..?

.in case of withdrawal of
suit..?
in Execution Proceedings?

Compromise..??????
.is not a decision by a court
..acceptance by the court of
some thing
which the parties had
agreed
merely sets the seal of a court
on the agreement of parties.

Whether the ..doctrine of

resjudicata applies to consent
decrees?

Case-laws

Baldev Das vs Filmistan Distributors

AIR 1970 SC 1929
Subba Rao vs Jagannadha Rao
A I R 1970 S C 406

Cont

Consent decree.cannot be
said..
Heard & Finally decided
So resjudicata..N/A

Cont
But such decree
Precludes a partyfrom
challenging
how ??????

Cont
By rule of estoppelsec.115 of
I.E. Act
Imposes restrictionon a
party.retreat his earlier statement..
Preventsaying.contradictory
statement..

Resjudicata.
in withdrawal of suit
not barred by resjudicata
Would be bar to instituting .fresh
suit
Why?.....how?......

U/Or. 23 R.1..
..

Where the plaintiff abandons

any suit or part of claim
withdraws from a suit or part of
a claim without the permission
shall be precluded
from instituting any fresh suit
in respect of such subjectmatter or such part of the claim.

Case-law
Sarguja Transport service
Vs
State Transport Appellate Tribunal
A I R 1987 S C 88

In E.P proceedings

Prior to 1976..
Not applicable
After 1976 amendment
applicable
to
Execution
proceedings.

THANK YOU

UNIT-2
PLACE OF SUING

SUITS
May relate to
Movable

ased on Contract
Matrimonial

immovable
Based on tort

Suit for Accounts

t be instituted lowest grade competent c

Intro..
Sec. 15 to 21 deals .. Suit is to be
instituted
regulate the forum
Place of suing .which court .
Relating to jurisdiction

Object

To reduce the burden on the higher

court
To afford convenience to the parties
And witnesses who may be examined
in such suits

Cont.

Competency means.
Jurisdiction ...
Pecuniary & Territorial.
Basing on suit value . pecuniary

Sec.15
Lowest Competent Grade
Competent..
Having jurisdiction
to try
..also indicates
Pecuniary jurisdiction

Where it
situates
EX: Partition
foreclosure

Option of the
plaintiff

Either in any
Place
EX:
defamation

Cause of
Action

Immovable

Acc. to Sec.16
Action against res../Property.
Shall be brought
Where res
Situated
Property means..Situated in
India

Sec.17..

When two courts..have jurisdiction

can choose ..the forum
Sec.18
Place of institution of suit
where local limits of jurisdiction
..uncertain

Sec.19..suit.
for compensation
for wrong done to the person or to movable
property
defendant resides,
or carries on business,
or personally works for gain
the suit may be instituted ..at the option of
the plaintiff ..

Sec. 20.
Where..defendant..
actually and voluntarily resides,
or carries on business,
or personally works for gain

?????????

Harshad Chiman Lal Modi

Vs.
DLF Universal and Anr.
(2005) 7 SCC 791

Facts.....
The appellant..... entered into a 'plot
buyer
......for purchase ..... residential plot
..... Gurgaon, Haryana.
......the agreement ..... Delhi.
The Head Office of respondent....
situated in Delhi.
Payment was........ Delhi

Cont....
.....Payment .... in instalments as per the
schedule to the agreement
.........
... Res.. unilaterally and illegally...... cancelled
the agreement
.......had not paid dues ......towards construction
of Modular House
..........objected to the illegal action
and sent a legal notice through an advocate
to carry out his part of the contract

Cont.....
.......replied .......that the agreement had
been cancelled
and nothing could be done in the matter
.....filed a suit......
Before...Delhi Court....

Claim.....
o ..........for declaration,
o ..........specific performance of the
agreement,
o .........for possession of the property
o and for permanent injunction.

Cont.....
.....that there is a valid and existing contract
..........is bound to abide by the contract,
.............perform its part of the contract by
withdrawing the letter
permanent injunction restraining .... from
allotting, selling, transferring, alienating ......
.........directing him to hand over vacant and
peaceful possession

During.....
def....... filed an application under
Order 6, Rule 17
.......seeking amendment in the written
statement
... by raising an objection
.......as to jurisdiction of Delhi Court
to entertain the suit

Plea.....
.... stated that the suit was for recovery of
immovable property
......situated in Gurgaon District.
U/ Sec. 16 ....
....suit for recovery of property .....instituted .......
the property was situated.
Since the property was in Gurgaon,
..,.Delhi Court had no jurisdiction in the matter.

Application.....
...... was allowed
......written statement was permitted to be
amended
Issue...framed......
Whether Delhi Civil court has jurisdiction to
try and entertain the present suit?

Trail......order.....
........upheld the contention of the def.
and ruled that Delhi Court had no jurisdiction
to try the suit.
The plaint was, therefore, ordered to be returned
............. for presentation to the proper court.

......
Being aggrieved by the said order
....... the appellant approached
..... High Court by filing Civil Revision
Petition

Dismissed.......

Before Supreme.....
appellant contended ....
that the courts below have committed an error
of law
.............as well as of jurisdiction

in allowing the amendment in the written

statement and

in holding that Delhi Court had no jurisdiction.

Cont......
Clause 28 of the agreement reads thus;

"The Delhi High Court or Courts subordinate to it,

alone shall have jurisdiction in all matters arising
out of touching and/or concerning this transaction."

Res.....plea
..........the suit relates to specific performance of
agreement relating to immovable property.
........In accordance with the provisions of Section
16...........

......Suits to be instituted where

subject-matter situate......

Cont.....
Admittedly

the

property

is

situate

in

Gurgaon

(Haryana).
Delhi Court, therefore, ....
has no jurisdiction
to entertain the suit
for specific performance of agreement of purchase of
a plot - immovable property - situate outside Delhi.

SC opinion....
.......If the court had no jurisdiction, parties by
consent cannot confer jurisdiction on it.
Section 16 thus recognizes ...a well established principle
that actions against res or property should be brought in
the forum where such res is situate.
A court within whose territorial jurisdiction the property is
not situate has no power to deal with and decide the
rights or interests in such property

Cont.....
a court has no jurisdiction over a dispute in which
it cannot give an effective judgment.
the parties had agreed that Delhi Court
alone had jurisdiction in the matters arising out
of the transaction has also no force.

Finally.......
Such a provision...... would apply to those
cases
where two or more courts have jurisdiction to
entertain a suit and
the parties have agreed to submit to the
jurisdiction of one court.
......deserves

to

be

accordingly dismissed

dismissed

and

is

Sec.20 & objective

Union of India
V
Ladulal Jain
AIR 1963 SC 1681

Case-law

New Moga Transport

Company,
Vs.
United India Insurance Co.
Ltd. and Ors
A I R 2004 S C 2154

Facts.....
......had purchased certain articles ....
........ Material was booked with New
Moga Transport Co
for transportation to Barnala.
The goods were loaded in truck

Cont.....
On account of a fire which took place
allegedly due to electric shortcircuiting
there was destruction of whole of the
materials.

Cont....
.......claimed that he had
suffered loss and
..........lodged a claim for a sum
of Rs.5,10,000/ Since nothing was paid
only a non-delivery of goods
certificate was issued

 ,,,,,, settled the claim for a sum of

Rs.4,63,516/ on the basis of the surveyor's report
and the amount was paid ...... due
receipt was obtained.

 In the suit ......a specific plea

......that the Court at Barnala had no
jurisdiction to deal with the suit
With reference to the consignment
note,
it was submitted that the Court at
Udaipur alone had jurisdiction

Cont....
trial Court did not accept the plea
first Appellate Court upset the verdict
of the trial Court.
By the impugned judgment the High
Court restored the judgment of the trial
Court
and held that the plaintiffs were
entitled to relief and Court at Barnala
had jurisdiction.

Plea of ......S.C
High Court.....
clearly over-looked
the fact that the parties by an
agreement have fixed a particular Court
.... has the jurisdiction.
Without any plausible reason or basis
the High court upset the decision of the
first Appellate Court.

Undisputedly......
The Court at Head office city shall
only be the jurisdiction in respect of
all claims and matters arising under
the consignment at the goods
entrusted for transport".
at the top of the consignment note
the jurisdiction has been specified to
be with Udaipur Court.

 there is clear exclusion of the Courts

other than the chosen one and,
therefore, the suit could not have
been entertained at any other place.

Res.....plea....
consignment note was not clear
..... "the Court at Head Office city shall only
be the jurisdiction in respect of all claims
and matters arising under the consignment
at the goods entrusted for transport".
in view of the vague indication of the court
relating to jurisdiction the High Court has
rightly interfered

Acc to S.C.....
Section 20 of CPC reads as.......
Explanation)- A corporation shall be
deemed to carry on business at its sole
or principal office in (India) or, in
respect of any cause of action arising
at any place where it has also a
subordinate office, at such place."

 The Explanation applies to a

defendant which is a Corporation
which term would include even a
company. The first part of the
Explanation applies only to such
Corporation which has its sole or
principal office at a particular place.

 In that event, the Court within whose

jurisdiction the sole or principal office
of the company is situate will also
have jurisdiction inasmuch as even if
the defendant may not actually be
carrying on business at that place, it
will be deemed to carry on business
at that place because of the fiction
created by the Explanation.

 "in respect of any cause of action

arising at any place where it has also
a subordinate office".
Above being the factual and legal
position, the inevitable conclusion is
that the High Curt was not justified in
upsetting the order of First Appellate
Court. It is not a case where the
chosen Court did not have jurisdiction.

FINALLY,......

Accordingly, .....set aside the

judgment of the High Court and
restore that of the first Appellate
Court.

......
The Court at Barnala shall return the
plaint to the plaintiff No.1
(respondent No.1) with appropriate
endorsement under its seal which
shall present it within a period of four
weeks from the date of such
endorsement of return before the
proper Court at Udaipur.

Case-law

Union of India
Vs
Oswal Wollen Mills Ltd.
AIR 1984 SC 1264

Facts
Company Regd. Office- Ludhiana
(Punjab)
Petition filed- Calcutta H.C
H.C granted exparte ad interim
relief
Before S.C
Set aside pet. Against

s.c
..has not only disapproved
but
strongly
deprecated
the
practice & increasing tendency
On the part of the litigants of
crossing a forum
Which may oblige them by
entertaining suits or petitions

Cont
Though they have no jurisdiction in
the matter
Set aside the order
..further..the action was taken as a
part of maneuvering legal battle.

Objection as to..
Fundamental rule.
Decree of a court without
jurisdiction..
Nullity
Sec. 21 protect honest litigants &
avoid harassment

Cont
u/s 21 (1) no objection as to the
place of suing
Will be allowed by appellate /
revision court unless
Objection was taken
First instance
Before settlement of issues
Consequent failure of justice

CASE LAW
Mantoo sarkar
Vs
Oriental Insurance company ltd
(2009) 2 SCC 244

Transfer of suit

Plaintiff has a right

Decide the forum
With in the jurisdiction
Main factor . Balance of
convenience
Request made earliest instance
After giving notice other side

Cont..

Burden lies applicant

Jurisdiction Appellate court
Grounds .
Reasonable apprehension in the
litigant mind not get justice
Avoid conflicting decisions

Cont

If the Judge is biased

Common Question of fact & law
Ground of Balance of convenience
Two Suits same cause of action
different courts
Avoid delay & unnecessary expenditure
No appeal against this transfer

Case Law
Nandini Chatarjee
Vs
Arup Hari Chatarjee
AIR 2001 Cal 26

Case filed
custody of child
Husband filed..
Interim custody of minor daughter
Wife filed objections
After hearing of interim application

Cont
Interim application allowed..
Observation of..
Minor girl expressed her desire to stay with
..her grand parents & cousins
Minor..passing her days in a solitary
state.with her mother

?????

After passing of the order.

Before High court..
.petitionerfiled application for
transfer of proceedings
On what grounds????????

cont,.
Minor girl age 11 years
Should not be allowed to stay at
father
Without proper
appreciation..application.allowed
Res. Entered into judge
chamber..without having
instruction

Cont
Judge .during the examination of
minor.did not touch..relevant
aspect
Other 4 children..Relatives of her
husband were present at chamber
Husband lawyer has close
acquaintance with the judge
All these circumstances

Cont.
gave apprehension in her mind
She might not get justice or fair
dealing with this ..presiding officer
Husband filed his objection..and
denied
..material allegations

Interpretation.
Of sec. 24
not to be dealt with in a light-hearted
manner
should not be granted readily for any
fancied notion
because .such transfer of a case from
one Judge to another
effect casts doubt on the integrity
competence and reputation of the concerned
Judge.

Cont
Unless and until
..sufficiently cogent ground is disclosed
.. not be allowed as a matter of course.
..must be shown to have disclosed a
definitely unfair attitude or biased frame of
mind against the petitioner
and the petitioner must have some
reasonable grounds for apprehending

H.C.
The contention of the petitioner..
was not justified,
The petitioner has failed to
concretize her apprehension which
seems to be more imaginary than
real.
.therefore, has no legs to stand
upon.

Paramount Consideration...... Justice

Transfer Allowed

Transfer not Allowed

1. Reasonable
Apprehension
2. To Avoid multiplicity of
proceedings
3. Where Judge in one
party Interested
4. Res-subjudice
5. Avoids delay &
unnecessary
expenses

Opposite party
influenced in locality
Court is situate at long
distance
Refusal to grant
adjournment
Presiding Officer
belongs to rival
community

THE E

ND

UNIT-3

PLEADINGS

Pleadings
Pleadings
Material
Material
Facts
Facts
Only
Only

Specific
Specific

Clear
Clear

Requisite
Requisite
Data
Data

Not Law, Vague & Indefinite

Not Law, Vague & Indefinite

?????
It is settled law
..that pleadings must contain
onlyfactaprobanda.. required to
be proved
and notfactaprobantia.. the
facts by means of which they are
proved

Material fact
Fact & Material Fact ?
Facts..broad situations which
give a clear picture of the dispute.
material facts .. those facts
.are an absolute
must for a party
to establish his claim to a relief he
seeks

Cont.
Formal document
Main spine & prickle of litigation.
Pleadings.
Not only define the issues..
Manifest

&

..throughout

exert
the

litigation

their
whole

importance
process

of

What........

means.......
Plaint or written statement
Object......ascertain real
dispute......between parties
Narrow down area of conflict
Make aware of questions to be
argued

Cont

. very important in civil cases

A good case may sometimes be
lost
.. because of bad drafting
Prevent miscarriage of justice

Cont
Order 6(1) deals with pleadings in general

To bring parties definite issues

To diminish expenses & delay
To prevent surprise at hearing

Importance
Provide a guide
..for the proper mode of trial
.. demonstrate upon which party
the burden of proof lies
.who has the right to open the
case

Cont.
..determine
the
range
of
admissible evidence
.which the parties should adduce
at the trial
.. lay down limit on the relief that
can be granted by the court

Fundamental .
Pleadings should state facts & not law
Facts should be material facts
Pleadings should not state the evidence
The facts should be stated in concise form

Case-law

????????

Case-law
VIRENDRA KASHINATH RAVANT AND
ANOTHER
Vs.
VINAYAK N.JOSHI AND OTHERS
AIR 1999 SC 162
Suit:....for eviction

Facts.....
Appellants ........ Landlords
.........building situate at Benham
Hall Lane, Mumbai
...... let out to Shanta Sabnis.....
Original Tenant
After her death......
Her daughter.....continued as a .......

Cont.....

........filed a suit for eviction ....

On the ground......
that the premises were sub-let to
the.....third parties

2nd Res.......
contended that ....
she is the only daughter of Shanta Sabnis
and hence the tenancy right has
devolved on her with the death of her
mother.
She disputed the contention of the
appellants
that the building had been sublet to the
third .....

Cont....
.....but stated that
she was allowed by her mother and
grand-mother
to reside in the building
for the purpose of looking after her
mother
and grand-mother who were old and
sick.

1st res.....
.......admitted that he is in possession
of the suit premises.
.....contended that he was permitted
by the tenant
. to occupy the building on
leave and license basis

Cont
under an agreement dated
16.10.1971 and he continued in such
possession on 1.2.1973 and also
thereafter.
So ...... claimed protection under
Section 15A of the Bombay Rents,
Hotel and Lodging House Rates
Control Act, 1947

Trail.....
.....found that .........1st res was
inducted into possession ........
The claim made by
. for protection under Section
15A of the Act
was repelled

trial court
concluded that induction of....... into
the building
amounted to unlawful subletting.
On the strength of the above finding
.. a decree for eviction was
granted

Cont.......
The appellate authority
.......confirmed the decree for eviction
Before H.C........
High Court approached the issue
..from a new angle
untouched by the trial court and the
appellate authority

H.C.......
observed first ......
that appellants have not treated the
defendant as their tenant
and secondly that there is no clear
averment in the plaint to the effect
that the building has been sub-let to
the 1st res..

Cont......
It is therefore, ...
clear that in order to be entitled to a
decree of eviction against the tenant
.on the ground of unlawful sub-letting
an averment in the Plaint is must that the
tenant has unlawfully sub-let the suit
premises.
It is clear from the allegation in the plaint
that the plaintiffs were not treating any of
the named defendants as their tenants.

Cont......
.......the Tenant of the plaintiffs viz. Ms.
Shanta had expired before institution
of the suit.
Therefore, there is no question of the
plaintiffs being in a position to make a
statement
that the tenant inducted 3rd
parties ....as unlawful subtenant.

Order of H.C.....
In these circumstances,
a decree of eviction could not have been
passed against the petitioner ....
because averments necessary for passing
a decree itself were absent in the Plaint.
both the courts below have committed
grave error of law in overlooking these
aspects of the matter which were crucial
for deciding the controversy in the matter.

Sc observed...
The High Court was not justified
.......in non-suiting the appellants on the
premise that they have "no where treated
the defendant as their tenant.
" The clear averments in the plaint regarding
the tenant are the following:
"One Miss Shanta B.Sabnis during her life
time was Plaintiffs' monthly tenant in
respect of the building bearing No. 7 on a
monthly rent of Rs. 12.85.

Cont.....
The said Miss Shanta B. Sabnis died some
time ago leaving behind her mother as
the heir and legal representative.
It admits of no doubt that appellants
have clearly recognised Ms. Shanta
Sabnis as their tenant in respect of the
suit premises.
Admission of..........subletting to the 3 rd
party,

Cont.....
the High Court has
exceeded its jurisdiction
by upsetting the concurrent finding
of facts reached by the two fact
finding courts,
on a very fragile reasoning that there
was no sufficient averment in the
plaint

Order 6 Rule 5 ......

.......confers powers on the Court
to order a party to make a further
statement
or even a better statement
or further and better particulars of any
matter already mentioned in the pleading.
no suit shall be dismissed merely on the
ground that more particulars are not
stated in the pleadings.

Under Order 6 Rule 2(1).....

"Every pleading shall contain,
and contain only,
a statement in a concise form of the
material facts
on which the party pleading relies for his
claim or defence,
as the case may be, but not the evidence
by which they are to be proved.

The object .......

.........of the Rule is two-fold
First is to afford the other said
intimation regarding the particular
facts of his case so that they may be
met by the other side.
Second is to enable the court to
determine what is really the issue
between the parties.

Cont......

a statement in a concise form" are definitely

suggestive that brevity should be adhered to
while drafting pleadings.
Of course brevity should not be at the cost of
setting out necessary facts, but it does not
mean niggling in the pleadings.

Cont.
Elaboration of facts in pleadings is
not the ideal measure
and that is why the sub-rule
embodied the words "and contain
only" just before the succeeding
words "a statement in a concise form
of the material facts".

Cont.......
"Procedural law is intended to facilitate and not
to obstruct the course of substantive justice.
Provisions relating to pleadings in civil cases
are meant to give to each side intimation of the
case of the other so that it may be met to
enable Courts to determine what is really at
issue between parties, and to prevent
deviations from the course which litigation on
particular causes of action must take.

Finally.....
High Court has thus erred as it
exceeded its jurisdiction.
Hence ..allow this appeal and set
aside the impugned judgment of the
High Court
..and restore the order of the trial
court as confirmed by the appellate
court.

P LA
T

IN

Plaint & its Particulars

.has not been defined
statement of claim, a document,
.by presentation of which the suit is
instituted
Its object is..
.. to state the grounds
upon which the assistance of the
court is sought by the plaintiff
pleading of the plaintiff

Order. 7 Rule. 1-8

Relate to particulars of plaint

Every plaint should contain
Name of the court,
Name & Address of plaintiff & defendant,
in case of minor or unsound mind
..-statement to that effect,
cause of action & when it aroseJurisdiction-Relief

Cont
If the suit is in representative
capacity..
. must show actual existing
interest in subject matter
..allowed a set-off or relinquished
a portion of claim,
..the amount so allowed or
relinquished

Cont.

Where the suit is for amount related to

immovable property or mesne profits
which cannot be determined,
. the approximate amount or value
thereof

Cont
related to immovable property.
Must state ..boundaries..of ..
Description of.survey no
If suitfor
possession.against..tenant
Date of default..of non-payment of rent
for recovery of money..
In spite of repeated demands & date of
default

Cont

If..suit for money

Plaint shall state..
Precise amount

Cont

Suit..damages..
..breach of contract date
for specific performance
. is ready & willing to perform

Admission of .

Where the court orders.

Issued of summons
The plaintiff must present summons.
Within 7 days..
along with copies.

Return of ..

Where there is no
territorial or pecuniary .jurisdiction
With regard to the subject matter..
.will be returned.
may present .proper court

Return..endorse..

Date of presentation..
Date of return.
Name of the party.
Reasons for returning it

Return..endorse..

Date of presentation..
Date of return.
Name of the party.
Reasons for returning it

Rejection.
o .barred by time
o Fails to pay court fee .within time
o Does not disclose the cause of action
o Relief claimed under valued.
o Where plff... fails to comply the
provisions of Rule.9
o Non-compliance
with
statutory
provisions

Cont.
If the plaint not signed by plaintiff.
Defect not cured within time.
.suit is vexatious & meritless
Reasons

must

rejection
Rejected plaint.

be

recorded

for

Ratio ......

"When neither party puts forth a

contention, then court cannot
obviously make out such a case
not pleaded, suo moto.

Case-law
Bachhaj Nahar
Vs.
Nilima Mandal and Anr.
AIR 2009 SC 1103

filed

for declaration......
possession ....
and injunction.....

Facts.....
......claimed that the suit property
.......purchased by them under sale deed
dated 29.12.1962.
The reliefs ......
declarations that
the plaintiffs are the absolute owners
the defendants do not have any right,
title or interest or possession

Cont.....
o ..had illegally encroached and started
construction in the suit property
o a direction to .. to deliver possession of
the suit property
o after demolishing the construction over the
same
o a permanent injunction restraining.
o ..from interfering with the suit property.

Def.......
....... resisted the suit
contending that.. purchased the property
to the South of plaintiff's property
from second defendant under sale deed
dated 5.5.1982
and the suit property actually formed part
of his property.
. contended that the plaintiffs had no
right, title or interest in the suit property.

Issues......
Is the suit as framed maintainable?
Have the plaintiffs got any cause of
action to file the suit as against these
defendants?
Is the suit barred by limitation?

Cont.
Whether the suit land is part and parcel of
land of the plaintiff purchased through
registered .
..or the suit land in exclusive
possession of
after purchase of first
defendant.

Cont
first defendant encroached any portion
of the suit land?
.Whether the plaintiffs got title over
the suit land?
Or were they using the suit land under
express permission?

To what relief or reliefs, plaintiffs are

entitled?

Trial court .
After considering the evidence,
.. by judgment and decreed the suit in
part.

It held that the suit property was part of

plaintiffs' property

and that first defendant had encroached over

a part of it to an extent of 15 sq. ft.

Cont
o ..already put up his construction over
the encroached portion and was using it,
o instead of directing him to deliver
back possession
o he should pay Rs. 100/- as the price of
the encroached portion, to the plaintiffs

Appellate court
Feeling
aggrieved,
.the
defendant filed an appeal.
Plaintiffs filed cross-objections.

first

The first appellate court held that the

plaintiffs had failed to prove.
.
therefore
allowed the

appeal

Before..H.C..
The High Court. held that
the plaintiffs had failed to make out
title to the suit property.
held that plaintiffs had made out
a case
for grant of relief based on

easementary right of passage

Cont.
in respect of the suit property
as they had claimed in the plaint
.that they and their vendor had
been using the suit property,
and the first defendant and witness
had admitted such user.

Cont.
The High Court observed
that if there was any encroachment over the
said passage by the first defendant,
that will have to be got removed by the
"process of law".
issued a permanent injunction restraining
the plaintiffs from encroaching upon the suit
property (passage)
till the plaintiffs got a declaration of their
title over the suit property by a competent court

Order.
..that the case based .
.. issue relating to an easementary
right,
as the evidence available was sufficient
to make out easementary right over the
suit property

Cont.
therefore

.granted

permanent

injunction
restraining the first defendant
from interfering with the plaintiffs' use
and enjoyment of the `right of passage'
over the suit property

Case-law
Bachhaj Nahar
Vs.
Nilima Mandal and Anr.
AIR 2009 SC 1103

............................

Continuation.................of case
law

Before S.C..
The Appellant contends
.that neither in law, nor on facts, the High
Court could have granted the aforesaid reliefs.
The High Court, in this case..
in its obvious zeal to cut delay and
hardship
that may ensue by relegating the plaintiff to
one more round of litigation
has rendered a judgment which violates
several fundamental rules of civil procedure

Cont
No amount of evidence can be looked into..
upon a plea which was never put forward
in the pleadings.
A question which did arise from the pleadings
and
which was not the subject matter of an issue
cannot be decided by the court.
A Court cannot make out a case not pleaded.

SC observation.
The court should confine its decision to the
question raised in pleadings.
Nor can it grant a relief which is not claimed and
which does not flow from the facts and the cause
of action alleged in the plaint.
A factual issue cannot be raised
or considered for the first time in a second
appeal.

Cont
CPC.
is an elaborate codification of the
principles of natural justice to be applied to
civil litigation
The provisions are so elaborate
fulfillment of the procedural requirements
of the Code may itself contribute to delay.

Cont.
But any anxiety to cut the delay or further
litigation,

should not be a ground to float the settled

fundamental rules of civil procedure.

The object and purpose of pleadings and issues

.. is to ensure that the litigants come to trial
with all issues clearly defined

Cont..
and to prevent cases being expanded or grounds
being shifted during trial.
object is also to ensure
that each side is fully alive to the questions that
are likely to be raised or considered

may have an opportunity of placing the relevant

evidence appropriate to the issues before the
court for its consideration.

Cont..
.. the pleadings are meant to give to
each side intimation of the case of the
other so that it may be met,
to enable courts to determine what is
really at issue between the parties,
and to prevent any deviation from the
course which litigation on particular
causes must take.

Cont..
When there is no prayer.
for a particular relief
and no pleadings to support such a relief,
when defendant has no opportunity to resist or
oppose such a relief,
if the court considers and grants such a relief,
it will lead to miscarriage of justice.

Cont..
The High Court has ignored the aforesaid
principles relating to the object and necessity of
pleadings.
Even though right of easement was not pleaded
or claimed by the plaintiffs,
only in regard to title and possession
it made out for the first time in second appeal,
a case of easement and granted relief based on
an easementary right.

Cont.
without pleadings and issues,
evidence cannot be considered to make out a new
case which is not pleaded.
Another aspect to be noticed,
is that the court can consider such a case not
specifically pleaded,
Where neither party puts forth such a contention,
the court cannot obviously make out such a case
not pleaded, suo moto.

Cont
In the absence of a claim by plaintiffs
based on an easementary right,
the first defendant did not have an opportunity
to demonstrate that the plaintiffs had no
easementary right.
In the absence of pleadings and an opportunity
to the first defendant to deny such claim,
the High Court could not have converted a suit
for title into a suit for enforcement of an
easementary right

Finally..

and set aside the judgment and order of

the High Court
and restore the judgment of the first
appellate court

Case-law

National Textile Corporation Ltd

Vs
Naresh Kumar Badrikumar Jagad
AIR 2012 SC 264

Ratio.....
No relief can be granted by the courts, if not
found in pleadings
Pleadings and particulars are necessary to enable
the court to decide the rights of the parties in
trail.
Pleadings are more help to the court in narrowing
the controversy involved
To inform the parties concerned to the question in
issue
So that the parties may adduce appropriate
evidence on the said issue

Case Law

Charanlal Sahu
Vs
Giani Zail Singh
AIR 1984 SC 309

Cont

A party cannot be allowed to keep his

options open until the trial & adduce
Such evidence as seems convenient
& handy

Cont
By way of amendment only
party can rise any ground of claim
or contain any allegation of fact
inconsistent
with
his
previous
pleadings
A court may allow amendment of
pleadings
A court may striking out pleadings if it
is unnecessary.

Other rules of pleadings(or.6 R.4-18)

If the pleadings to related to
fraud, misrepresentation,

breach of trust, willful default or undue

influence particulars .dates & items
should be stated

Cont
Performance of condition precedent
need not to be pleaded
non-performance

of

condition

precedent must be specifically &

expressly pleaded

Pleadings in writ
should not only state material facts
but also the evidence in support
proof of such facts
by annexing necessary orders &
documents

t
u
O
g
n
i
k
i
r
St

a
e
Pl

s
g
n
i
d

Or. VI R. 16
The court is empowered
to strike out any pleadings
..if it is unnecessary,
scandalous,
frivolous or vexatious

Cont.
..or tends to prejudice, embarrass
or delay fair trial of the suit
or is otherwise an abuse of the process of
the court

Case Law
Santhi Vijay Kumar
Vs
Tota Singh
(2006) 13 SCC 353
Supreme court observed that bare reading
of or.6 R.16 makes it clear that a court
may order striking of pleadings

Cont
o Where such pleadings is unnecessary
o .Tends to prejudice, embarrass or
delay of fair trial of the suit
o An abuse of the process of the court
o It cannot be over-looked that normally a
court cannot direct parties as to how they
should prepare their pleadings

Cont
The power to strike out pleadings is
extraordinary in nature
and must be exercised by the
court sparingly
and with extreme caution &
circumspection

AMENDMENT OF PLEADINGS

Means
A small change
Improvement made to document
..is basically for the purpose
bringing about final adjudication in a suit
to avoid multiplicity of proceedings.

Amendment of .

Order. VI Rule.17 .
The court may at any stage
of the proceedings
..allow either party
to alter or amend his pleadings in such
manner and on such terms as may be
just

Cont
And all such amendments shall be made
as may be
necessary for the purpose of
determining the real questions
in controversy between the parties

Cont
No application for amendment shall be
allowed after the trail has commenced
Unless the courts come to the conclusion
that in spite of due diligence
the party could not have raised the
matter before the commencement of trial

Object of Amendment
The object of the rule
.. is that the courts should try
the merits of the cases
.. that come before them &
should consequently allow all
amendments

Cont
. that may be necessary for
determining
the
real
question
in
controversy between the parties
provided it doesnt cause injustice
or prejudice to the other side

Order 6 Rule 17.

consists of two parts.
Whereas the first part is discretionary
(may) and leaves it to the court to order
amendment of pleading.
.. The second part is imperative (shall)
and enjoins the court to allow all
amendments which are necessary for the
purpose of determining the real question in
controversy between the parties." -

Case-law
Revateeju builders&Developers
Vs
Narayanaswamy & sons
(2009)10 SCC 814

Plff..filed
for recovery of Rs. 52,97,111/- with interest at
the rate of 18% per annum from the date of filing of
suit till payment.
alternatively had taken the plea that if the court
for any reason comes to the conclusion that a decree
for a sum of Rs. 52,97,111/- cannot be passed as
prayed by the appellant against respondents
then the court may at least pass a decree for Rs.
19,12,500/- with interest at the rate of 18% from the
date of suit till the date of realization

Cont
claimed that it be declared absolute owner of
the scheduled property
on the basis of the sale deed dated
30.9.1987.
The sale deed was executed by the
respondents
after obtaining permission from
the State of Karnataka under the provisions of
the Urban Land (Ceiling & Regulation) Act,
1976.

during.suit.
A petition in public interest was filed by
one S. Vasudeva

challenging the aforementioned

transfer of land.
in those proceedings
held that the sale deed executed by the
respondent in favour of the appellant on
30.9.1987 is held invalid and

inoperative.

cont .
It may be pertinent to mention that
..after the institution of the suit, the
Urban Land (Ceiling and Regulation) Act,
1976
has been repealed.

Cont..
o after the Act has been
repealed
o the appellant filed an application under
Order VI Rule 17
o .seeking leave of the trial court to
add few prayers
o and to delete certain paragraphs in the
plaint and also to delete the prayer

PRAYED

to

declare

that

the

defendants

are

trespassers
mandatory injunction directing the defendants

to vacate and deliver to the plaintiff,

vacant

and

peaceful

possession

of

the

building within 30 days; and

to issue a permanent injunction restraining the

defendants

Cont..
The trial court.allowed application for
amendment filed under Order VI Rule 17 CPC.
The respondents aggrieved by the said order
. Preferred writ petition

ground that the amendment as sought and

granted has changed the entire nature of the suit
and cause of action.

Cont
also submitted that
the fact of allowing amendment would be
taking away admissions in the plaint by
the appellant
and

such

an

amendment

permitted by any court of law

cannot

be

Before H.C.
The respondents submitted........
....... the original suit was instituted for
recovery of Rs. 52,97,111/-.
Alternatively, .... Declare......... absolute owner
based on the basis of sale deed dated
30.9.1987
and direct the respondents to deliver vacant
possession of the plaint schedule property.
.... that means......the respondents are in
possession of the entire suit property.

Cont
by virtue of the amendment........
.........the appellant is trying to contend
...... that the respondents are to be
treated as trespassers
...... and unauthorized occupants of the
building in question

Cont
..........trying to introduce a new case
..which would certainly affect the
rights of the respondents
when

the

appellant

had

earlier

requested the court to pass a decree

.for possession of the entire property.

Order of HC.
.........conclusion....... that the appellant while
seeking permission to amend the plaint is trying
to introduce a new case
which was not his case in the original plaint and
proposed amendment if allowed would certainly
affect the rights of the respondents adversely.

Cont.
In the impugned judgment,
..High Court also held that
.the
appellant
cannot
be
permitted to withdraw the admissions
made in the plaint
.as it would affect the rights of the
respondents.

Cont......

further .held that any such

amendment.......
which changes the entire character of
the plaint cannot be permitted ........
........ set aside the order of the trial
court which allowed the amendment
under Order VI Rule 17 CPC.
Being aggrieved by the impugned
judgment,
Preferred an appeal.......

Supreme Court......
..........was

only

consideration

for
and

refund

of

alternatively

sale
for

possession.
........ also submitted that the relief for
possession was always there
although it was in respect of the entire land
which is sought to be amended

Cont...

........

that

the

amendment

is

necessary to elucidate the real

points in controversy.
......the amendment ......will not
cause any prejudice

Cont...
.....
stand
taken
up
by
the
respondents is totally dishonest,
wrong and not bona fide.
.........that the court should be liberal
in allowing amendments
and
the
respondents
be
compensated by costs.

Res......
The original plaint expressly so avers and relies
.......on Section 65 of the Contract Act
....clearly admitting that the sale deed has
become void.
This admission is now sought to be got rid off
and the sale deed is sought to be asserted as
valid.

Cont.....
It was submitted that the appellant
cannot,
therefore,
seek
any
amendment of the plaint
relying on the circumstances as to the
earlier decision having been overruled
by seeking amendment of the plaint.
This has the effect of changing the
character of the suit and also omitting
an admission made

Cont
Respondents filed written statement to the
original plaint.
They prayed the court to pass a decree in
favour of the appellant for a sum of Rs.
27,30,339.45/.
This is an admission of the respondents in
favour of the appellant to an extent of Rs.
27,30,339.45/-.
The appellant now cannot be permitted to
take a complete somersault.

All rules of court..

.intended to secure the proper
administration of justice,
and it is therefore essential that they
should be made to serve and be
subordinate to that purpose,
so that full powers of amendment must
be enjoyed and should always be

Cont.
but nonetheless no power has yet been

given to
enable one distinct cause of action to be

substituted for another,

nor to change,
by means of amendment, the subject-

matter of the suit.

Cont....
The first condition
which must be satisfied before the amendment
can be allowed by the court is
whether such amendment is necessary for the
determination
of
the
real
question
in
controversy.
If that condition is not satisfied, the amendment
cannot be allowed.
This is the basic test which should govern the
courts' discretion in grant or refusal of the
amendment.

Cont.
The other important condition
which should govern the discretion of the
Court is the potentiality of prejudice or
injustice which is likely to be caused to
other side.

Cont.
whether the amendment sought is
imperative for proper and effective
adjudication of the case;
whether the application for amendment
is bona fide or mala fide;
the amendment should not cause such
prejudice to the other side which cannot
be compensated adequately in terms of
money

Cont..
refusing amendment would in fact lead
to injustice or lead to multiple
litigation;
whether the proposed amendment
constitutionally
or
fundamentally
changes the nature and character of
the case; and
as a general rule, the court should
decline amendments if a fresh suit on
the amended claims would be barred

Other..
These are some of the important factors
which may be kept in mind
while dealing with application filed under
Order 6 Rule 17.
These are only illustrative and not
exhaustive."

Cont

very serious judicial exercise and the

said exercise should never be undertaken in a
casual manner.

while deciding applications for amendments

the

courts

legitimate,

must

not

honest

refuse
and

bona

fide,

necessary

amendments
and should never permit mala fide, worthless

Finally....
apply these parameters to the present case,
then the application for amendment deserves to
be dismissed
with costs of Rs. 1,00,000/ because the respondents were compelled to
oppose the amendment application before
different Courts.
This appeal being devoid of any merit is
accordingly dismissed with costs.

Written
statement

What is.....?
Term of specific connotation........
Ordinarily signifying...
Reply to the plaint......
Simply.....
.....pleading of defendant

Cont...
...must deals with....every material fact
....alleged by the Plaintiff
.....state new facts
......takes legal objects against the claim of
plaintiff

If ....more...one .....def
All defendants .....should sign on the written statement
......filed by one defendant....
Does not bind ...on the other.....defs
After receipt of ss.....
......w/s .....filed in 30 days....
It may be extended.....90......
Order VIII of code........

Before
....... 1976 Amendment
The defendant may,
and if so required by the court,
shall at or before the first hearing or
within such time as the court may permit,
present a written statement of his defence.

After.....

As a result of the 1976 Amendment,

Rule 1 of Order VIII of the Code
The defendant shall,
at or before the first hearing or within such
time as the court may permit,
present a written statement of his defence

2002 Amendment.....

The defendant shall,

within thirty days from the date of
service of summons on him,
present a written statement of his
defence

Cont....
General rules of Or. VI......will apply
....may take number of defenses...
......must be maintainable at law.....not
embarrassing
.....the allegation ...not admitted.....
Should be specifically denied.....
......Should not....be vague / evasive

Fails...to file W/S....

Upon proof of .......plaintiff
Court may pronounce.......Judgment
If.......relies.....upon....Set-off defence
.......should be separately......stated
....also bound to produce.....all documents

.....meaning of set-off......?????

Set-off....

...claim set up another....

.....where there are mutual debts....
One debt .....settled against the other
Reciprocal acquittal of debts between two
persons
Plea of defence.......available.....
By set off......wipes out or reduces the claim
of defendant

Condition....
Suit must be recovery of money...
Money must be ascertained...
Sum must be legally recoverable
.....must....by defendant from plff
Should not exceed...pecuniary jurisdiction

May classified.......

Legal.....................Equitable
Sum
must
be
ascertained
Claimed
as
a
matter of right
Claim need not be
originated
from
same transaction
Legally recoverable

May even be for

unascertained
money
Matter of discretion
of court
Must have arisen out
of same transaction
Fiduciary
relationship may be
allowed

??????????

Whether the limit of ninety days

prescribed u/or 8 R.1 for filing w/s
mandatory or merely directory?

Case-Law

Kailash vs Nanhku
AIR 2005 SC 2441

Facts....
.....Elections of Uttar Pradesh Legislative
Council were held pursuant to the
Presidential notification dated 7.11.2003.
The appellant was declared elected.
Respondent filed an election petition
under Section 80 of the Representation of
the People Act, 1951

Cont...
........laying challenge to the election of the
appellant.
........
was
served
with
the
summons,
.....accompanied by a copy
...........requiring his appearance before the Court
on 6.4.2004.
..........On the appointed day,
the appellant appeared through his counsel
and sought for one month's time ....
............for filing the written statement

Cont...
o ........ allowed time till 13.5.2004 for filing w/s.....
o On 13.5.2004, .... again filed an application
seeking further time for filing .........
o ........on the ground that copies of several
documents were required to be obtained.
o The Court adjourned the hearing to 3.7.2004
o in between, from 13.5.2004 to 2.7.2004,
o .......The high Court was closed for summer
vacation.

Cont....
On 22.6.2004, appellant's advocate's nephew
expired.
However, the written statement was drafted and
kept ready for filing.
The registered clerk of the advocate was deputed
for filing the same in the Court on the appointed
day.
.......on account of lack of understanding on the part
of the registered clerk,
the written statement could not be filed on 3.7.2004

Cont......
.....but the same was filed on 8.7.2004 .....along
with application for Condonation of delay .....
.......On 23.8.2004, the High Court rejected the
application
.........filed by the appellant and refused to take
the written statement on record
.........for the reason that the same was filed
beyond a period of 90 days from the date of
service of summons

Cont....
Feeling aggrieved by the said order,
the winning candidate ........ before ........, S.C......
has filed this appeal
Issue......
Whether the time limit of 90 days as prescribed
by the Proviso appended to Rule 1 of Order VIII of
the CPC is mandatory or directory in nature?

Written statement.......
The defendant shall,
within thirty days from the date of service of
summons on him
.......present a written statement of his defence
Provided that where the defendant fails to file the
written statement within the said period of thirty
days,
he shall be allowed to file the same on such other
day, as may be specified by the Court,
for reasons to be recorded in writing, but which shall
not be later than ninety days from the date of
service of summons."

The provision....
.....does not deal with the power of the court
and also does not specifically take away the
power of the court
to take the written statement on record
Though.. filed beyond the time as provided for...
....the nature of the provision contained in Order
VIII, Rule 1 is procedural.
.......It is not a part of the substantive law

Cont...
the object behind substituting Order VIII, Rule 1
....... in the present shape is to curb the mischief
of unscrupulous defendants
.......adopting dilatory tactics,
........delaying the disposal of cases
much to the chagrin of the plaintiffs .......
.......approaching the court for quick relief and
also to the serious inconvenience of the court
faced with frequent prayers for adjournments.

The object....
....is to expedite the hearing and not to scuttle
the same.
The process of justice may be speeded up and
hurried
......but the fairness which is a basic element of
justice cannot be permitted to be buried
.....Considering the object and purpose behind
enacting Rule 1 of Order VIII in the present form
and the context in which the provision is placed,
...... opinion that the provision has to be
construed as directory and not mandatory.

Cont....
Ordinarily, the time schedule prescribed by Order
VIII, Rule 1 has to be honoured.
The defendant should be vigilant.....
The extension of time sought for by the
defendant from the court whether within 30 days
or 90 days,
should not be granted just as a matter of routine

Cont.....
......when the period of 90 days has expired.
The extension can be only by way of an exception
......and for reasons assigned by the defendant
and also recorded in writing by the Court to its
satisfaction.

Cont.....
The extension of time shall be
.........only by way of exception ...and for reasons
to be recorded in writing
The court may impose costs for dual purpose
i)
to deter the defendant from seeking any
extension of time just for asking and
(ii) to compensate the plaintiff for the delay and
inconvenience caused to him.

Cont....
...... hold that Order VIII Rule 1,
though couched in mandatory form,
......is directory being a provision in the domain of
processual law.
The purpose of providing the time schedule for
........ is to expedite and not to scuttle the
hearing.

Cont........
The provision spells out a disability on the
defendant.
It does not impose an embargo on the power of
the Court to extend the time.
Though, the language of the proviso to Rule 1 of
Order VIII of the CPC is couched in negative form,
it does not specify any penal consequences
flowing from the non- compliance.

Cont.....
The provision being
Procedural Law,

in

the

domain

of

the

it has to be held directory and not

mandatory.

The power of the Court

to extend time for filing the written statement
beyond the time schedule
provided by Order VIII, Rule 1 of the CPC is not
completely taken away

Finally......
Extension of time may be allowed
if it was needed to be given for the circumstances
which are exceptional,
occasioned by reasons beyond the control of the
defendant
and grave injustice would be occasioned if the time
was not extended
written statement shall now be taken on record
but subject to payment of Rs.5000/- by way of
costs payable by the appellant herein to respondent
...Appeal allowed

ISSUES

What is......?
Back bone of suit
Means.....point in question
......subject of debate
....disagreement....discussion, argument or
litigation

Cont.....
When one party affirms
...& other party denies
..a material proposition of fact or law..
Then only issue arise....
...are crux of the matter

Order.14 Rule 1......

Framing of issues.......
...scope of the trail is determined...
The correct decision of civil lis.......
Depends on.......
Correct framing of .......
The real points in controversy .....should
be correctly determined

TWO
KINDS
two

Issue of Fact

essentials......

Issue.....must be framed...not pleading.....

Court cannot refused to decide the point
.....which an issue ....framed
....should not frame an issue
Which does not arise in pleadings
...must be confined to material questions
of fact or law

Cont.....
One issue.....one fact / law.....
If the case.....goes to appeal...
Appellate court.....dealt on the
settled by the trail court ...
Duty of the frame proper issues....
Rests primarily on the court ......
....should be specific & proper

issues

Court may......
.....frame addl. issues / amend issues
....strike out issues........
Omission:
Even though it is the duty of the court to frame
proper issues
Mere omission to frame
anissueisnotnecessarilyfataltothesuit.
Omissiontoframe
anissueisan
irregularity
which may or may not be a material one

Cont....
If such omission affects the disposal of the suit
......must be remanded to the trial court for a
fresh trial.
On the other hand,
if the parties went to the trial with full
knowledge that aparticular point was at issue,
they have not been prejudiced and substantial
justice hasbeen done,
absence of an issue is not fatal to the case so
as to vitiate the proceedings

Disposed.....

Parties are not at issue......disposed

Def. Admits claim.......
Def. Failed to produce evidence.....
If court satisfied with framed
issues....

Case-law
Sopan Sukhdeo Sable and Ors.
Vs
Assistant Charity Commissioner
and Ors.
AIR 2004 SC1801

Claimplff..
o . to be tenants under respondent No. 2.
Shaneshwar Deosthan Trust.
o ......Its
trustees
and
the
Assistant
Charity
Commissioner were the other defendants.
o Plaintiffs claimed that they were tenants of the trust
of which the defendants Nos. 3 to 13 were the
trustees.
o Alleging that they have been forcibly evicted
notwithstanding continuance of the tenancy,

.... filed ......for reliefs

......declared as the tenants of the properties......
belonging to temple Trust,
.........permanently restrained by an order of
injunction
..........not to evict forcibly with the help of police
and also not to interfere in their business being
carried on by them in suit shops,
and not to interfere in the possession of suit shops
in any manner-whatsoever

Cont.....
Defendant No. 1 be directed to enquire into the
illegal acts, committed by other defendants
and issue appropriate direction to that effect.
What is the plea of .......Trust?
There was no forcible dispossession as claimed

Cont....
An application was filed by the trust
.......raising a preliminary plea
....... plaint is liable to be rejected under Order VII
Rule 11 of the Code.
Acc to ...... Section80of the Bombay Public Trusts
Act, 1950

Cont...
it was urged that
.........no Civil court had jurisdiction
to decide or deal with any question
which by or under the Act is to be decided
or dealt with by any officer or authority
under the Act
and in respect of which the decision or
order of such officer of authority has been
made final and conclusive.

Trial Judge......
...... framed two preliminary issues
whether the suit was liable to be rejected
for want of cause of action?
whether this court is competent or not?

Finding....
....... in respect of the preliminary issues
were recorded against the plaintiffs.

............the plaint does not disclose any cause of

action
the jurisdiction vests only with the District Court
to give direction to Commissioner
and in any event Section80of the Act took away
jurisdiction of the Civil Court and the plaint was

rejected.

Challenging......

.........the judgment and decree

.............an appeal was preferred before the District court

The appeal dismissed & trial court order

confirmed
The matter was carried in Second Appeal
......... before the High Court which by the impugned
judgment upheld the findings recorded by the Courts below

Before... Supreme Court....

.......... it was contended by the appellants that
S.80of the Act .......had no application
and the lease being for 11 years
...........the action of the trust in dispossessing the
plaintiffs forcibly cannot have the approval of law.

denied........res. contention

Contention of Res..
The plaint......... clearly overlooks the basic
distinction between statements of the
facts disclosing cause of action
and the reliefs sought for.
The reliefs claimed do not constitute the
cause of action.
This is a matter which can be considered
in the trial itself so far as it is relevant.

Cont.....
.....further submitted.....
in any event the District Court was the
only Court having jurisdiction
and not the Court where the suit was filed.
This aspect does not appear to have been
specifically urged before the Courts below

Supreme court.
Observation
What is Order VII Rule 11?
Objective of..
?????????????????????

Order VII Rule 11: Rejection of

plaint.......

where it does not disclose a cause of action:

where the relief claimed is undervalued,
and the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by the
court, fails to do so:
where the relief claims is properly valued but the
plaint is written upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so:

Cont....

where the suit appears from the statement

in the plaint to be barred by any law
where it is not filed in duplicate
where the plaintiff fails to comply with the
provisions of Rule 9.

The real object......

......Order VII Rule 11 of the Code

....... to keep out of courts irresponsible law suits.
in case the Court is prima facie of the view that
the suit is an abuse of the process of the court
in the sense that it is a bogus and irresponsible
litigation,
the jurisdiction under Order VII Rule 11 of the
Code can be exercised.

Order of SC.....
The question of forcible possession as claimed
is also a matter
which can be pressed into service by the parties
before the trial Court
and if raised the Court shall
deal with it considering its relevance to the suit
and accept it
or otherwise reject the plea in accordance with
law.

Looking
into
dispute ......

the

nature

of

Finally.
it would be appropriate...
if the trial Court makes an effort to
complete the trial within six months
.... from the date of the judgment.
The parties are directed to cooperate for
disposal of the suit early within the
stipulated time.
The appeal is allowed to the extent
indicated without any order as to costs.

Case Law
Kuldeep Singh
Vs
Ganpat Lal
AIR 1996 SC 729

Cont
Supreme court stated, the object
underlying Order.7 Rule. 1(e)
which requires the plaint shall
contain the particulars about the facts
constituting the cause of action
And when it arose, the purpose behind
it to help the court in ascertaining
whether the suit is not barred by
limitation

Cont
Suit for possession against Tenant
date of default of non payment of
rent
Money Suit in spite of repeated
demands date of default
Suit for damages breach of contract
Suit for specific performance plaintiff
state that he is ready & willing to
perform

Cont
3. Jurisdiction
Pecuniary Value of suit
Territorial Subject-matter

4. Limitation
Plaintiff should show the ground of
exemption

***********

UNIT-IV
????????????

********************************
APPEARANCE & EXAMINATION
OF PARTIES

********************************

Order .9.
Duty.of the both parties
Appear before the court

At appropriate time
Appearance & Non-Appearance
during trial
Crucial issue

Cont
Acc. to law Appearance means
in person or through advocate
for conducting case
U/CPC
Not mean ..mere presence in the court
appearance by a pleader duly instructed &
able to answer to all material questions relating
to suit

Effect
of
Non

Effect of Non
Appearance
Appearanceof
of
Parties
Parties
Plaintiff
Plaintiff
Dismiss the suit
Dismiss the suit
Showing sufficient
Showing
sufficient
reason restore
reason restore
At the time of hearing if
At the time
plaintiff
failedoftohearing
attend if
plaintiff failed to attend
Dismiss the suit for default
Dismiss the suit for default

Defendant
Defendant
Ex-parte against
Ex-parte
against
defendant
defendant
Sufficient reason
Sufficient
reason
must
be proved
must be proved
If defendant failed to
If defendant
to
adduce
evidence failed
& written
adducestatement
evidence & written
statement
Court may pass ex-parte decree
Court may pass ex-parte decree

Plaintiff30
Defendant
Within
may
days
may
filefile
fresh
setting
suit or
a side
petition
ex-parte
to restore
order

Remedies

DECREE
&
EXPARTE DECREE

S. 2(2) Decree..
Means
Formal expression of an adjudication.
So far as regards the court expressing
it..
Conclusively determines .
The rights of the parties..
With regard to controversy matters
..may be either preliminary or final

Exparte......
A decree passed in the absence of
defendant....
Neither null & void nor inoperative
...it has all the force of a valid decree

Set a side grounds....Or.9 R.13

Def...should satisfy the court......

..........Summons were not duly served
.........Prevented by any sufficient cause
Sufficient cause means.......facts &
circumstances .....
.......Refers to the date on which the absence
was made a ground for proceeding exparte
Not his previous negligence or past defaults

What is....

SUFFICIENT CAUSE?

Case-Law

G.P. Srivastava
Vs.
Shri R.K. Raizada & Ors.
A I R 2000 SC 1221

Case note.......
sufficient cause.....?
Order 9 Rule 13 of CPC Code, 1908
appeal against Order of High Court
dismissing
application
filed
by
appellant
praying for setting aside ex parte
decree

Order 9 Rule 13

....... ex-parte decree against defendant

can be set aside .........
upon satisfaction of Court
That either summons were not duly
served upon defendant
or he was prevented by any 'sufficient
cause'
........from appearing when suit was
called on for hearing

sufficient cause...
.............for non-appearance
..... refers to date on which absence
was made
ground for proceeding ex parte
and cannot be stretched to rely upon
other circumstances anterior in time

Facts.....
....... suit for arrears of rent,
Ejectment and damages filed against the
appellant
was decreed ex-parte on 10-3-1983.
The application for setting aside the ex-parte
judgment and decree filed on 7-4-1983
dismissed by the Trial Judge on 14 5 1985.

Next.......
The revision petition .....filed by the appellant
..........was dismissed by the High Court
on the ground that the appellant had failed
to establish, any just or sufficient

cause
for his non appearance on the date fixed
when the ex parte proceedings were initiated
against him

Reasons for non-appearance...

the appellant submitted that
he was posted as Assistant Engineer
in the Irrigation Department
and on account of the construction
of the bridges over the casual drains
he had to remain at the site in the
interests of public

Why counsel was not present?

Unfortunately, the young nephew of the counsel

met with an accident on 10-3-1983 and expired

which prevented his counsel also to appear in

the Court on that date.

It was contended that the absence of the appellant

and his counsel in the trial Court was on account of
the aforesaid circumstances and not intentional.

The application was supported by his affidavit and a

medical certificate.

The trial Court

........did not accept the pleas raised by the
appellant
.......and found that the absence of the appellant
or his counsel in the Court
....... on 10-3-1983 was not for just or sufficient
cause.
The filing of the medical certificate was not
disputed
.........but the same was not relied on as it was
found to have been obtained from a private
doctor
and not from a Government doctor

Cont.....
The High Court also did not accept
.......refusing to set aside the ex parte
decree passed against him
Unless 'sufficient cause' is shown for nonappearance of the defendant in the case
on the date of hearing,
the Court has no power to set aside an ex
parte decree.

s.c.....interpretation
Sufficient cause for the purpose of Order 9
Rule 13
has to be construed as elastic expression
for which no hard and fast guidelines can be
prescribed.
The Courts have wide discretion in deciding
the sufficient cause
keeping in view the peculiar facts and
circumstances of each case.

Cont....
The 'sufficient cause' for non-appearance
refers to the date on which the absence
was made a ground for proceeding ex-parte
and cannot be stretched to rely upon other
circumstances anterior in time.
If sufficient cause' is made out for nonappearance of the defendant
on the date fixed for hearing when exparte
proceedings initiated against him

Cont.....
In a case where defendant ...
approaches the Court immediately
and within the statutory time
specified,
the discretion is normally exercised
in his favour,
provided the absence was not mala
fide or intentional.

Cont...
For the absence of a party
......... in the case the other side can be compensated
by adequate costs and the lis decided on merits.
Both the trial Court as also the High Court have
adopted a very narrow and technical approach
in dealing with a matter pertaining to the eviction of
the appellant
despite the fact that he had put a reasonable defence
and had approached the Court for setting aside the
ex parte decree, admittedly, within the statutory
period

Finally....
Under the circumstances,
the appeals are allowed
by setting aside the order of the High Court and of
the trial Court.
The ex parte judgment and decree passed against
the appellant is set aside on payment of costs of
Rs. 5,000/- to the other side.
The trial Court is directed to afford the appellant
opportunity to prove his case
and expedite the disposal of the suit preferably
within a period of six months from the date of
receipt of the copy of this order.

Exparte decree..............

Passed in case of.......

More than one defendant........

Cont..

General rule.
Court will set aside the decree.
Against applicant.
But under specific..
Set aside as a whole.

........

Where the decree is joint & indivisible

Where the suit result in two
inconsistent decrees
Relief must be complied jointly.
Ex.Joint promissory note
mortgage bond

RECORDING
OF
EVIDENCE

Recording of evidence..
Evidencerecorded in the open
court
In the presence and under the
personal direction of judge.
..a lot of time of the court was
consumed,
main cause of delay in disposal of
case

cont
After 2002 Amendment
Oral evidence can be recorded by
court commissioner.
That report is part of the record of
suit.
Parties to the suit to prove their case

Cont.
They may apply to the court

for summons to persons whom he

proposes to call as his witnesses
Sec. 30-32 and ord. 16-18 contain
necessary provisions for summoning,
attendance and examination of witnesses
Or. 16-A makes special provisions for
attendance of witnesses confined or
detained in prison

Summons to witness

submit list of witnesses in to court

to give evidence or produce documents
But not later than 15 days after the issues framed
Object
to give notice to a party about the witnesses
Other party could be in position to know the
nature of evidence.
Without mentioning the name in the list also ..party can call any witness
with the permission of court of show sufficient
cause.

Cont..

Without applying
issue summons to witness
party can bring any witness to give evidence
or produce document
The court has also power
to summon any person as a witness
if it thinks that the ends of justice
or case needs that kind of evidence.
Suomoto examination of witness is
discretionary

Contents of summon

Time and place

Purpose of attendance
Description of document

Failure to comply with summons

The court has power to enforce the
attendance of any person to whom a
summons has been issued for that
purpose
1.
2.
3.
4.

Issue arrest warrant

Attach and sell his property
Impose fine not exceeding Rs. 5,000/Order him to furnish security for his
appearance

in default commit him to the civil

prison

Adjournment
Adjournment
(or. 17 r. 1&2)
(or. 17 r. 1&2)

Rule gives discretion to

Rule gives discretion to
the court
the court

No adjournment should
No adjournment should
be granted
be granted

Grant time
Grant time

Unless sufficient cause

Unless sufficient cause
shown
shown

Adjourn the hearing

Adjourn the hearing

Court should not refuse

Court should not refuse
if cause is shown
if cause is shown

Adjournment
Adjournment
Granted
Granted

Refused
Refused

Sickness of party/
Sickness
party/
witness/ofadvocate
witness/ advocate

Engagement in another
Engagement
in another
court
court

Non service of summon

Non service of summon

Unreasonable conduct
Unreasonable conduct

Reasonable time for

Reasonable
time
for
preparation
of case
preparation of case

Refused to examine
Refused to examine

Withdrawal of
Withdrawal
appearance by aofcounsel
appearance
a counsel
at lastby
moment
at last moment

Direction by superior
Direction court
by superior
court

ADJOURNMENT(Or.17 R.1&2)
The court has a discretion to grant time to
the parties
..to adjourn of a suit
..Without showing sufficient cause
No adjournment should be granted
No adjournment shall be granted more than
3 times. during hearing of the suit
Pleader of a party is engaged in another
courtShall not be a ground for
adjournment

Case laws

Raman Services Pvt. Ltd.

VS
Subash Kapoor
AIR 2001 SC 207

Cont.

Adjournment of case
due to absence of lawyers
On the ground of strike call given by bar
Has been deprecated by the supreme court in
very strong words
It was observed that some courts might have
conducted cases
Even during the strike or boycott periods
Adjourned due to helplessness for not being able
to decide the lis in the absence of counsels

Cont.

But the majority of the courts in the

country has been impliedly
Sympathetic by not rising to the
occasion by taking positive
Stand for preservation of the high
traditions of law

??????????

Sudha Devi
Vs.
M.P. Narayanan and Ors.
AIR1988 SC1381

Principle

Even in absence of a defence Court

not entitled to pass an ex-parte
decree
without
reliable

relevant evidence.

Facts
1st defendant Jute Factory Company Ltd.
tenant in respect to the flat in question under

the plaintiff.
The Jute Company defaulted in payment of rent
and also wrongfully sublet the flat to the second

defendant Sadhan Chattopadhyaya

Claim

Past mesne profits besides future

mesne profits
Ejectment of the tenant

Cont.
None of the defendants appeared.
At the ex-parte trial
the plaintiff examined one witness
and
tendered certain documents in
evidence.
The Single Judge decreed the suit.

Cont
During pendency of suit..
the two defendants are alleged to have
inducted the third party to occupy the
demised flat

Cont
3rd party/Respondent filed an appeal..
Simultaneously
The plaintiff thereafter filed an

affidavit

with a prayer to modify the judgment

and remand the suit for retrial.
The prayer was rejected

Cont.
allowed the appeal and set aside the
decree on the ground
plaintiff's sole witness did not disclose his
concern with the suit property
or his relationship with the plaintiff
and that on the basis of the meager evidence
led by her, she had failed to establish her case.

H.C.
The only evidence relevant to the
case .oral evidence of the
plaintiff's sole witness Nand Kumar
Tibrewal.
The High Court (in appeal) has
declined to rely on his evidence
mainly on the ground that the
witness has not disclosed his concern
with the suit property or his

Before S.C
The learned Counsel for the appellant
contended that
the witness (now deceased) was the
husband of the plaintiff-appellant
and thus he was fully conversant
with the relevant facts.

Cont
criticism by the High Court was not justified.
It was further contended that even ignoring
the relationship of the witness with the
plaintiff,
his evidence was adequate to prove the
plaintiff's case
which has not been rebutted by any of the
defendants
either by filing a w/s or by cross examining
the witness.

Res. Arg
On the failure of the defendants
to appear in the suit,
the learned trial Judge decided to proceed
with the case ex-parte.

Cont.
there is not an iota of evidence led by the
plaintiff to prove this story.
On the other hand, the evidence of the sole
witness disproves this part of the case.

The fact that the plaintiff chose to

examine some evidence in the case

cannot by itself entitle her to a decree

SC opinion..
Even in absence of a defence
the court cannot pass an ex-parte
decree
without reliable relevant evidence.

Interpretation of Affidavit
Affidavits are not included in the
definition of 'evidence' in section 3 of
the Evidence Act
and can be used as evidence only if
for sufficient reasons Court passes an
order under Order XIX, Rules 1 or 2 of
the Code of Civil Procedure.

Cont.
The plaintiff-appellant
cannot be allowed to fill up the
lacuna in the evidence
belatedly at the Supreme Court stage

S.C Opinion
hold that the suit should be sent back
to the learned Single Judge for retrial.
The plaintiff may file an application for
amendment of her pleading, if so advised,
and in that case the learned Single Judge
shall dispose it of in accordance with law.

Cont
The defendants will thereafter
be allowed to file their written statements within
aperiod to be indicated by the Court.
The suit will thereafter be taken up for further
trial as expeditiously as may be possible.
The evidence already led by the plaintiff shall
continue to be evidence in the suit.

Case - Law

Savithramma
Vs
Cecil Naronha
AIR 1988 SC 1987

Cont
Ordinarily a fact has to be proved by oral
evidence.
Since affidavits are not included in the
definition of evidence u/s.3 of I.E Act
They can be used as an evidence only if,
for sufficient reason
the court invokes the provision of
order.19 of code

Judgment & decree

What is the difference.......

DECREE..sec.2(2)
Means
Formal expression of an adjudication.
So far as regards the court expressing
it..
Conclusively determines .
The rights of the parties..
With regard to controversy matters
..may be either preliminary or final

Judgment:Sec.2(9)means
the statement given by a judge on the
grounds of a decree or order
Essentials.

Concise Statement of the case

Points for determination
Decision there on
Reasons for such decision

Order......... sec.2(14)

Means.....
...any formal expression
Of any decision...of a civil court
..which is not a decree

Difference

Between order & decree

Differences.....
order

decree

May originate on
petition / application
May not finally
....determine such
rights
Number of orders may
be passed

Only on presentation
of suit decree can be
passed
Conclusively
determines rights
May be preliminary or
final

Case Law

Balraj Taneja
Vs
Sunil Madan
AIR 1999 SC 3381

Cont

The judge cannot merely say Suit

decreed or Suit dismissed

Ratio Decidendi:

"Court shall not arrive at

decision without proper scrutiny
of dispute involved in matter
placed before it."

Suit filed......
............... in the Delhi High Court
...... for specific performance of an agreement
for sale in respect of property No. W-118, First
Floor, Greater Kailash-II, New Delhi.
.......... Summons which were issued
Appeared before court......
and prayed for eight weeks' time to file written
statement
which was allowed and the suit was adjourned

Cont....
Since the Written Statement was not filed,
............. the Court decreed the suit for specific
performance
Under order 8 rule 10.....
Acc to decree....
...... directed to deposit a sum of Rs. 3 lakhs, being
the balance amount of sale consideration, within six
weeks and on the amount being so deposited
...... he was given the liberty to apply to the court for
appointment of a Commissioner for executing the sale
deed in his favour

Cont....
The review application filed by the
appellants was dismissed by the
High Court
An appeal, which was filed by the
appellants, before the Division
Bench was dismissed
..........
Appeal before.....Supreme Court
What is the contention of appellant?

Contention of appellant.......

High Court was not justified

in passing the decree against the
appellants,
for specific performance
merely on the ground
that Written Statement was not filed by
them
on the date fixed for that purpose

also contended
........that the High Court had rejected the
application for time to file Written Statement on
the ground that there was a change of counsel
appearing on behalf of the appellants
and no reason was indicated by them for not
filing the Written Statement
which indicates that the attitude adopted by the
High Court in decreeing the suit under Order 8
Rule 10 C.P.C.
was wholly punitive in nature resulting in serious
miscarriage of justice.

Cont......
even if the Court had decreed the suit
under Order 8 Rule 10 C.P.C.,
it ought to have written a "judgment"
by stating clearly the facts of the case
and the reasons for decreeing the suit.
The suit, it is contended, could not have
been decreed merely for not filing of the
Written Statement unless facts set out in the
plaint were found proved by the High Court.

Res. Contention......

..........the appellants,........had adopted

dilatory tactics and their intention, from the
very beginning,
was to delay the disposal of the suit so as to
harass .....res.....
.....the conduct of the appellants was not
proper and they were negligent throughout,
inasmuch as not only that they did not file
the Written Statement,
they filed an appeal before the Division
Bench which also was beyond time

S.C......
it is clear that the Court,
.......at no stage, can act blindly or mechanically.
While enabling the Court to pronounce judgment in
a situation
where no Written Statement is filed by the
defendant,
the Court has also been given the discretion to
pass such order as it may think fit as an alternative.
This is also the position under Order 8 Rule 10 CPC
where the Court can either pronounce judgment
against the defendant or pass such order as it may
think fit.

Cont.....
the plaint itself indicates
that there are disputed questions of fact involved in the
case
regarding which two different versions are set out in the
plaint itself,
it would not be safe for the Court to pass a judgment
without requiring the plaintiff to prove the facts so as to
settle the factual controversy.
Such a case would be covered by the expression "the Court
may, in its discretion, require any such fact to be proved"
used in Sub-rule (2) of Rule 5 of Order 8, or the expression
"may make such order in relation to the suit as it thinks fit"
used in Rule 10 of Order 8.

Supreme court....
suit had been decreed only because of the failure of
the defendants in filing the Written Statement.
This exhibits the annoyance of the Court which is
natural as no Court would allow the proceedings to
be delayed or procrastinated.
But this should not disturb the judicial composure
which unfortunately is apparent in the instant case
as the judgment neither sets out the facts of the
case nor does
it record the process of reasoning by which the Court
felt that the case of the plaintiff was true and stood
proved.

Cont...
the judgment would still mean
the process of reasoning by which a Judge
decides a case in favour of one party
and against the other. In judicial proceedings,
there cannot be arbitrary orders
. A Judge cannot merely say "Suit decreed" or
"Suit dismissed".
The whole process of reasoning has to be set
out for deciding the case one way or the other.
This infirmity in the present judgment is glaring
and for that reason also the judgment cannot be
sustained.

finally
allow the appeal, set aside the judgment
remand the case back to the Delhi High
Court for a fresh decision.
allow the appellants to file their Written
Statement by 15th of October, 1999,
with a clear stipulation that if the Written
Statement is not filed by that date,
the decree passed by the High Court
shall stand.

THANK YOU THANK YOU THANK YOU

THANK YOU

HAPPY VACATION

?????????????????????????
?????????????

UNIT 5

CAVEAT

MEANING

A Legal process in delay of

proceedings
Caveator ..One who files a caveat
A Caveat .
a caution or warning
giving notice to the Court ?????

Cont.

not to issue any grant

or take any step
without notice being to the party
lodging the caveat.
It is a precautionary measure

Simply..
CAVEAT is a plea
made by the party to the dispute
that the Authority should not decide
the matter without hearing them.
To avoid Judgment on one side
hearing this procedure is adopted
Intimation of caution; warning;
protest.

SCOPE

Section 148-A ..
provides for lodging of a caveat.
inserted
Amendment Act, 1976

OBJECT
A caveat .protects the caveators interest.
..already ready to face the suit or
proceedings
which is expected to be instituted by his
opponent.
Hence no ex-parte order shall be passed against
the caveator.
The caveat avoids multiplicity of proceedings
saves the expenses, costs
..and conveniences of the Courts

FORM

No from is prescribed for the caveat

The caveator may file a caveat
in the from of an application or
petition before the Court submitting
the cause of action
Giving the names and description of
the opponent

Is there any definition?

No
Nirmal Chand v Girindra Narayan,
AIR 1978 Cal 492
Honble Court A caveat is a caution or
warning given by a person to the court
not to take any action or grant relief to
the other side without giving notice to
the caveator and without affording
opportunity of hearing him.

procedure

The copy of the application

shall be sent to the opponent party in
advance
by Registered Post Acknowledgment
Before filing of petition

RIGHTS OF THE CAVEATOR

The court must give a notice to the
caveators or to his Advocate
If the opponent party files proceeding
/ application for an interim order
The Court shall not give any ex-parte
interim order to the opponent party
without hearing the caveator

TIME LIMIT

The caveat
will remain in force
for 90 days
from the date of filing

IMPORTANT POINTS

Caveat can be filed

Only to oppose the application
and not to support it
Notice upon the caveator fixing the date
of hearing of the application is a must.
It is mandatory under the Section-148-A
Section 148-A applies only to trial courts,

caveat not applicable.

To appellate Courts
In execution of the decree,
Order 21, Rules 22 and 37
In writ proceedings &
Criminal proceedings..

Case law

Siddalingappa G.C. v. G.C. Veerana,

1981 (2) KLJ 323
If a party has a right to file the caveat
and order is passed without hearing him,
then such an order passed
becomes bad at law and thus is
unenforceable.

Case law

Supreme Court in
Reserve Bank of India Employees
Association v. RBI 1966 SCR (1) 25
without serving notice and without
hearing of the cavetor
ex parte interim order which was
passed by the court held to be bad

Case-law
Jonnala Sura Reddy And Anr.
vs.
Tityyagura Srinivasa Reddy

AIR 2004 AP 222

Suit.
..for an injunction restraining
from interfering with his
possession over the plaint
schedule property
Trial Court, ..
..after considering the
evidence on record,

Cont.
decreed the suit
lower appellate Court.
confirmed the judgment and
decree of the trial Court
.and dismissed the appeal.

Before H.C..
substantial questions of law
whether the plaintiffs can file a fresh
suit on the same cause of action
.after withdrawing the earlier suit
.filed for the same relief and
.on the same cause of action

Cont..
whether an injunction
can be granted in favour of a person
who has not come to Court with
clean hands
and who played fraud on Court.

undisputed facts ..
Previouslyplaintiff filed .
against the appellants
.. seeking an injunction
restraining them from interfering
with his possession over the plaint
schedule property

Cont
..in that suit
..under Order 39 Rule 1 of CPC
seeking an interim injunction
against
the
appellants
during
pendency of the said suit.

Cont.
The Court ordered notices
without granting ex parte interim
injunction in favour of the plaintiff.
.. plaintiff filed a memo.
.. withdrawing the suit.
..dismissed it as not pressed.

Next.
Thereafter the plaintiff,
present suit
for the same relief and on the same cause of
action
..for permanent injunction
..and filed an application seeking interim
injunction pending the suit against the
appellants.
An ex parte injunction was granted in his
favour.

Plea of appellant..
is that
suit is not maintainable
in view of Order 23 Rule 1 CPC the
suit is barred
and in any event since plaintiff did
not come to Court with clean hands
..he is not entitled to the injunction
sought for.

Cont
filed this suit suppressing the
fact of his filing a suit earlier
abuse of process of law and
amounts to playing fraud on Court
and so he is not entitled to equitable
relief of injunction.

Res.contention
in view of the peculiar facts and circumstances of
the case,
the plaintiff was obliged to file a separate suit
and
.. the concurrent findings of fact of both the
Courts below show the high-handed interference
by the appellants with the possession,
and the attitude of the defendants
and so there are no grounds to interfere with the
concurrent findings of fact arrived at by both the
Courts below.

H.C
suit is clearly barred by Rule 1 of
Order 23 CPC
because
the
plaintiff,
while
withdrawing
did not seek permission of the Court
to file a fresh suit on the same cause
of action.

Cont..
Since there is not even a whisper about the
earlier suit, in the plaint in this case,
it is clear that plaintiff did not come to the
Court with clean hands.
It is well known that injunction
relief would not be granted to a person
who does not come to the Court with clean
hands, and who is guilty of suppression of
facts.

Finally..
The conduct of the plaintiff is also
apparent from the facts of this case.
For the reason that plaintiff did not come
to Court with clean hands he is not entitled
to the injunction.
Appeal is allowed
..the suit dismissed

INTERIM.
Means
for the time being
meanwhile, temporary Orders.
passed by a court during pendency of suit
Which do not determine
Finally the substantive rights
And liabilities of the parties in respect
.of the subject matter of the suit
proceeding

or

Cont..
Object:
protection of the subject matter of the suit
Interim orders are necessary
to deal with and protect rights of the parties
in the interval between the commencement
.of proceedings and final adjudication

Cont
to protect the plaintiff
against injury by violation of his right
for which he could not be adequately
compensated in damages
recoverable in the action
if the uncertainty were resolved in his favour
at the trial

Cont

Interim order..
Can be granted
Exparte also
i.e. .without giving notice/ summon
to the opposite party

SUMMONS
A summon is
A document issued from an office of a
court of justice
Calling upon the person attend before
court for certain purpose
Written
Order
legally
obligates
someone
a specified date

Cont

After institution of suit court orders

To issue summons to defendant
answer the claim
Without duly summons
No further action can be taken
Technically summon means
Intimation to defendant by court
ensures fair trial

Object

Def. given an opportunity

No one can be condemned unheard
(audi alteram partem)
Summons not served decree not
binding
Sec. 27 order 5 service of
summons
Should be served not beyond 30
days

Essentials

Shall be signed by judge

Sealed with seal of court
Must be accompanied by plaint
Service of summons . Fundamental
rule of procedure
Problem of ss. Major causes of
delay in
progress of suit

Cont
Summons
Defendant
Witness

Defendant
In Person
By Pleader
Accompanied by someone

Mode Of Service
..of
summon
is
of
primary
importance
as it is a fundamental rule of law
of procedure.
The problem of service of summons
one of the major causes of delay
in the progress of the suit.

Case Law
Salem Advocate Bar Association
Vs
Union Of India
AIR 2005 SC 3353
A defendant can be served by a
plaintiff or through modern means of
communication

Service of
Summons

Personal
or
Direct

Service
By
Court

Along
With
Copy

Through
Court
Officer

By Plaintiff

Substituted
Service

By Post

Newspaper

With
ACK

Cont
Where the defendant resides within
the jurisdiction of another court or in
another state
The summons may be sent to the
court where he resides.
Such court will serve summons on
the defendant.

Cont
Service of foreign summons
may be effected by sending them
to the courts in the territories in
which the provisions of this code
apply
And served as if they were summons
issued by such courts.

Cont
Where the defendant resides out of
India,
The summons should be addressed
to the defendant place by post or by
other services
In the case of the defendant living
abroad
substituted
service
is
inappropriate.

Without
issuing notice
. final adjudication and .
..for time being ( with notice or without
notice)

Cont..
Order 24 payment in court
Order 25 security for costs
Order 26 Appointment of Commissioner
Order 38 Attachment before judgment &
Arrest before judgment
Order 39 Temporary Injunction
Order 40 - Receiver

************

APPOINTMENT OF COMMISSIONER

COMMISSIONS (order-26)
Sec. 75 to 78 deal with the powers of
the court to issue commissions
The
power
of
the
court
is
discretionary
. can be exercised by the court
For doing full and complete justice
between parties

Cont.
The above power can be exercised by
the court
.either on an application by a party
to the suit or suo motu
Purpose: To examine witnesses or. 26
R. 1-8
To make local investigation R. 9,10
To adjust accounts

To make local
investigation

Elucidating any matter

in dispute

Ascertaining the
market value of
property / Mesne Profit

Cont.

To make partition
To hold investigation
To conduct sale
The commissioner appointed by the
court
cannot
perform
any
judicial
function

Cont.
If the witnessInability to attend
the court on grounds of sickness
..if a party apprehends danger to
his life.
The evidence taken on commission
shall form part of the record.

Cont
It helps the
question in
before it
Report
of
furnish prima
facts

court in deciding the

controversy pending
commissioner
would
facie evidence of the

Arrest before Judgment

After obtaining decree the creditor
execute the said decree
By way of property attachment
By way of arrest of J.dr
Under order. 21 of CPC

D.Hr can move for arrest

attachment even before judgment

Grounds:
At any stage of proceedings,
If the court is

satisfied..

That the defendant with intent to delay the

plaintiff
or to avoid any process of court
or to obstruct or delay the execution of any
decree
Has absconded or left the local limits
Disposed or removed all his properties
Where the defendant is about to leave India

Injunction

An injunction is a
Judicial process
..where by a party is required
to do
or to refrain from doing any
particular act

Remedy
Prohibitory Injunction

Mandatory Injunction

Prohibits from doing

any act
or
Continuing to do a
particular act

Orders him to carry out

a certain act

Temporary.
During pendency of suit it will be issued
by court
Object:
Preservation of property in dispute
till legal rights & conflicting claims are
adjudicated
It is nature of protective relief
granted in favor of a party
to prevent future possible injury

Case Law
ITO
Vs
M.K. Mohammad Kunhi
AIR 1969 SC 430
It is in the nature of protective relief
To prevent possible injury

Types
Temporary

Permanent

Restrains a party temporarily

Restrains a party for ever

Granted until the disposal of

suit or until further orders

Can be granted only on merits

May be granted at any stage

of suit

At conclusion of trail

Regulated by Or.39 of CPC

Governed by sec. 38-42 of

Specific Relief Act

Cont
It may be applied
either by plaintiff or defendant
Issued against party
& not against a stranger or 3rd party

Case Law

Transmission Corp. of AP Ltd.

Vs
Lanco Kondapalli Power (P) Ltd.
(2006) 1 SCC 540

Cont
The power to grant injunction is at the
discretion of the court.
This should be exercised reasonably,
Judiciously & on sound legal principles
Before granting the injunction court
must be satisfied about.
Prima facie case
Irreparable injury
Balance of convenience

Ex parte Injunction
General ruleAcc to Or.39 R.3
issue notice to opposite party
Ex parte..can be granted
under exceptional
Without notice .the court can

Case-law
Morgan Stanley Mutual Fund
Vs
Kartick Das
1994 SCC (4) 225

Facts.
The appellant is a domestic mutual
fund registered with Securities and
Exchange Board of India
. managed by a Board of Trustees.
New scheme was introduced ..
With prior approval of SEBI
..advertisement
&
hoardings
released

Cont
One Piyush Aggarwal filed a suit
for injunction restraining the public
issue from being floated by the
appellant.
an interim order was passed.
Aggrieved by the same,
the appellant moved the High Court
.. stayed.
That was subsequently confirmed

Cont.
One Dr Arvind Gupta filed Writ
Petition. against SEBI.
In effect, he sought to stay the public
issue from being floated.
That writ petition was rejected.

Respondent
..moved the District Consumer Disputes
Redressal Forum
seeking to restrain the public issue from being
floated.
The principal grounds
that the appellant's Offering Circular was not
approved by the SEBI.
There are several irregularities in the same.
The basis of allotment is arbitrary & unfair.
The appellant was seeking to collect money by
misleading the public.

Consumer forum order.

Issued notice of show cause against Opposite
parties.
Considering the utmost urgency of the case
Passed an interim order otherwise the application
would be frustrated.
Accordingly direct opposite parties, and its men,
agents, collecting
....not to proceed any further with the issue of 30
crores Morgan Stanley Growth Fund Units
till proper clarification is made in its prospectus
and with the leave of this learned Forum.

.Before S.C
Aggrieved by this order appeal
Issue before.
What are the guiding principles in relation
to the grant of an interim injunction in
such areas of the functioning of the capital
market and public issues of the corporate
sectors?

Cont.
........ ex parte injunction could be granted only under

exceptional circumstances.
The factors which should weigh with the court in the

grant of ex parte injunction are whether irreparable or serious mischief will ensue to

the plaintiff;
whether the refusal of ex parte injunction would involve

greater injustice than the grant of it would involve;

Cont.
the court will also consider the time at which
the plaintiff first had notice of the act
complained so that the making of improper order
against a party in his absence is prevented;
the court will consider
whether the plaintiff had acquiesced for sometime
and in such circumstances it will not grant ex parte
injunction;

Cont.
the court would expect a party applying for ex
parte injunction to show utmost good faith in
making the application.
even if granted, the ex parte injunction would be
for a limited period of time.
General principles like prima facie case balance of
convenience and irreparable loss would also be
considered by the court.

Cont..
A careful reading of the above discloses
that there is no power under the Act to grant
any interim relief or even an ad interim relief.
Only a final relief could be granted.
hold

that

the

grounds

urged

by

the

respondent seeking to support the impugned

order, are untenable

Cont.
The appellant has suffered immensely because..
it has not even been served with copy of order of
injunction.
The application of the respondent is clearly
actuated by mala fides.
The grounds urged in the injunction application
were insufficient for the grant of such a relief.

Cont.
There is an increasing tendency on the part of
litigants to indulge in speculative and vexatious
litigation and adventurism which the for a seem
readily to oblige.
such tendency should be curbed.

Having regard to the frivolous nature of the

complaint,

Finally..
it is a fit case for award of costs, more so,
when the appellant has suffered heavily.
Therefore, ..award costs of Rs 25,000
in favour of the appellant.
Appeal allowed .

RECEIVER
Means
One who receives money of
another and renders account
to protect, preserve and
manage the property
during the pendency of litigation

Cont.
Appointmentdiscretionary
Receiver.
is an officer & is an extended
arm Hand of the court
Part of the court
machinery.rights of the parties
are protected

Principles..
Where it appears to the court
To be just and convenient
Should not be appointed unless the
plaintiff prima facie proves..he has very
excellent chance of
Succeeding the suit
Conduct of the party should be
considered
He must come with clean hands

??????

INHERENT
POWERS

Means.
existing and inseparable from something,
a permanent attribute or quality,
an essential element,
something intrinsic, or essential, vested in
or
attached to a person or office as a right of
privilege

Cont

Inherent power of Court

being empowered to

exercise any jurisdiction

OBJECT
to do justice and
to undo wrong in case of abuse of process
court or fraud or misrepresentation by
party upon the court
or where there is absence of rule
procedure in the circumstances of
particular cases.

of
a
of
a

Section 151
Saving of inherent power of court
nothing in this code shall be deemed
to limit
or otherwise affect the inherent power
of the court
to make such orders as may be
necessary
for the ends of justice or
to prevent abuse of the process of the
court

When can a Court exercise Inherent

powers?
Section 151 does not confer a new
power to the court,
but makes a statutory recognition of
the inherent power of the court
do certain things ex debito justitiae.
The inherent power can be invoked
only for the attainment of the ends of
substantial justice.

Cont..
. provides
only an extra ordinary
procedure,
and action under this section, it is not in
any sense obligatory
Section 151 could only be invoked
where no other remedy is available.
It does not confer any substantive right of
parties
but it is only meant to get over the
difficulties arising from rules of practice

Cont.
To consolidate suits and appeals
To stay cross suits, on the ground of convenience
To order joint trail of suits
To ascertain whether the proper parties are before
it
To entertain the application of a third person to be
made a party

Cont..
To allow a defence in forma pauper
To stay the drawing up of the courts own orders
or to suspend their operation, if the necessities
of justice so require
To apply the principles of res-judicata to cases
not falling under Section 11 CPC
To add a party
To punish summarily by imprisonment
contempt of courts

Cont..
To Transpose parties
To refuse permission to a co-plaintiff
to withdraw from a suit in a case
when he does not ask permission to institute
a fresh suit on the same cause of action or
impose terms upon him

Cont.
To decide question of jurisdiction
through as a result of its inquiry
it may turn out
that the court has no jurisdiction over the suit
To Order a refund of court-fee paid by
inadvertence
To reconstruct its record where they are lost
by accident etc

When cannot a Court exercise

inherent power?

By invoking the inherit powers,

a Court should not cause

damage to the object.

Cont
.cannot be invoked where there is
specific provision in the Code
cannot exercise inherit power
.to grant interim relief
which properly ought to be granted only by
the decree after determination of the points
in the controversy
To compel parties to submit to medical
examination or blood test

Cont
To appoint a commissioner to seize accountbooks in the possession of the plaintiff
To consider or review an order
To set aside an ex-parte decree
To strike a defence
To restore suit dismissed for default for nonpayment of court-fee under Order 7, Rule-11
To refund court-fee paid on a review
application when the review is granted on a
ground other than mistake of law or fact;
etc.

EXECUTION PROCEEDINGS

Introduction
The term execution
........has not defined the expression
execution
.........Signifies the enforcement giving effect
to judgment of the court
D.Hr enable to realize the fruits of the
decree
Sec. 36 to 74 of C.P.C
governing principles of execution of decree
(substantive law)
order 21 procedural provision

Cont
The numerous rules of order 21 of the code ......
........take care of different situations
Providing effective remedies not only to J.Drs &
D.Hrs
But also to claimant objectors, as the case may
be

Cont
Who may Apply:1. Decree holder
2. If D.Hr died. legal representatives
3. Representative of D.Hr
Order 21 -Rule 10 25
-Rule 105 106
Deals with execution application
All proceedings in execution commence with the
filing of an application for execution

Cont
Against whom:1. J.Dr (order - 21 R-15)
2. Legal rep. of J.Dr. (Sec. 50,52, 53)
3. Rep. of J.dr. (Sec. 146)
4. Surety of J.Dr ( Sec. 150)
E.P. may be filed before:1. The court which passed the decree
2. Transferred court.

Before.....E.P
Service of notice

Service of notice

Necessary........when

Not necessary .....when

After 2 yrs.....from the date of

decree

Within 2 years

Against legal representative

Against J.Dr only

Filed under 44-A

Would cause unreasonable

delay

Filed against receiver surety

Non-service....
..of notice.....to J.Dr
Subsequent proceedings will become
void
Rule 105 & 106......inserted by 1976
amendment

Limitation...

Mandatory injunction decree......

.......within 3 years
Other decrees.....12 years

SECTION 89
??????????

INTRODUCTION
If parties to the suit.
During pendency of the suit.
After framing the issues.
Wants to settle the matter
How?..............What?...........What is
the procedure?

Alternative dispute
resolution
Alternative
Instead of adjudication
Basing on the terms & conditions
Parties can settle
ADR ..informal .as negotiations
between the parties or their attorneys

Cont..
The Alternative Dispute Resolution mechanisms
complementary to court proceedings
and are gradually gaining recognition.
The main advantage of ADR techniques
the litigants are not bound by the technicalities

ordinary court procedure

of

Under CPC.
Section 89.
Settlement of disputes outside the Court
legislative mandate
to refer sub judice disputes to various ADR
mechanisms
where it finds it appropriate to do so,
in order to enable the parties
to finally resolve their pending cases
through well established dispute resolution
methods other than litigation

Cont...
Court shall formulate
terms of settlement
and give them to the parties for their
observations
and after receiving the observations of the
parties,
Court may re-formulate the terms of a possible
settlement and refer the same for-

Cont.
Arbitration;
conciliation;
Judicial settlement including
settlement
through Lok
Adalat;

Mediation.

recommendations
129th & 238 Law Commission
Reports

obligatory for the court

to refer the dispute
after the issues are framed
for settlement either by way of
fail to get their disputes settled
the suit shall proceed further
mandatory duty cast on the civil courts to
make an endeavour for settlement of
disputes by relegating the parties to an
ADR process

Further..

Order X Rule 1A CPC

mandates that the court
to direct the parties to the suit
to opt either mode of the settlement outside the
court
as specified in sub-section (1) of section 89 CPC
and on the option of the parties,
the court has to fix the date of appearance before
such forum or authority as may be opted by the
parties.

Case laws
Afcons Infrastructure Ltd. v. Cherian Varkey
Construction Co. (P) Ltd., (2010) 8 SCC 24
P. Anand Gajapathi Raju v. P.V.G. Raju (2000) 4
SCC 539.
Jagdish Chander v. Ramesh Chander 2007 (6) SCC
719.
Salem Advocate Bar Association v. Union of India
(II), AIR 2005 SC 3353.

Afcons Infrastru cture Ltd. v. Cherian Varkey Construction Co. (P) Ltd., ,
(2010) 8 SCC 24

o if the reference is to be made to arbitration,

o the terms of settlement formulated by the court will be of
no use.
o If the reference is to conciliation/mediation/Lok Adalat,
o then drawing up the terms of the settlement or
reformulating them is the job of the conciliator or the
mediator or the Lok Adalat, after going through the entire
process of conciliation/ mediation.
o Thus, the terms of settlement drawn up by the court will be
totally useless in any subsequent ADR process. Therefore
now the Supreme Court has unequivocally held that it is not
necessary for the court, before referring the parties to an
ADR process to formulate or reformulate the terms of a
possible settlement

Cont...
If the parties are not able
to opt for a particular mode of ADR provided in
section 89 CPC
then the court has to refer the matter itself to a
suitable ADR mechanism
in terms of section 89 CPC
except for arbitration and conciliation which
require express consent of the parties

Cont..
In case where the questions are complicated
or cases which may require several rounds of
negotiations,
the court may refer the matter to mediation.
Where the facility of mediation is not available
or where the parties opt for the guidance of a
judge to arrive at a settlement,
the court may refer the matter to another judge
for attempting settlement

Cont.
The reference to mediation
in terms of section 89 CPC
can also be made
even without the consent of the
parties.

advantage
If the matter is settled the settlement is

recorded by the court

and the matter is

disposed of.
the plaintiff is entitled for refund of court

fees.
Even if the matter is settled in appeal the

appellant is entitled to refund of court fees.

Case-law

Ghan Shyam Das Gupta and

another
Vs.
Anant Kumar Sinha and others
AIR 1991 SC 2251

This appeal....
.........is directed against the judgment of
Allahabad High Court,
allowing the writ petition of the respondents
under Article226of the Constitution,
and directing that they shall not be evicted
from the premises in dispute
in pursuance of an eviction decree passed
by the trail court

Main question.....
....... which arises for decision
whether
in
the
facts
and
circumstances of the case the High
Court was justified in entertaining the
writ petition under Article226of the
Constitution,
and
proceeding
to
issue
the
impugned direction.

Facts.....
The appellants are the owners of the premises in
question
........one Dr. K.C. Sinha was a tenant.
After his death his son Prabhas Kumar Sinha
continued in possession.
The writ petitioners- respondents are the sons of
the brothers of Dr. K.C. Sinha,
and according to their case they being members
of the joint Hindu Family along with Dr. K.C.
Sinha are tenants in their own right under the
appellants.

Cont...
The case of the appellants is that
they were subsequently inducted in the
premises as sub-tenants by Prabhas Kumar
Sinha
and did not have any independent right.
The eviction suit in the small causes court
was filed by the appellants
against Prabhas Kumar Sinha for his
eviction, without impleading the writ
petitioners

Cont
and the decree passed therein is under
challenge
by the judgment-debtor Prabhas Kumar
Sinha in revision before the High Court.
In this background the respondents
approached the High Court under Article
226 of the Constitution,
claiming that they, not being parties in the
eviction case, are not bound by the decree.

The High Court

......has held that since the claim of the writ
petitioners was not examined
and decided in the suit and the decree was
passed against Prabhas Kumar Sinha only,
they cannot be evicted from the premises
unless a decree is expressly passed against
them.
It has been observed that the appellants must
proceed to file a suit against the writ petitioners
and obtain a decree against them if they intend
to eject them.

Supreme court

......the High Court has seriously erred in law in

allowing the writ petition
by the impugned judgment.
The decision on the disputed issue was
dependent on the consideration of the evidence
to be led by the parties,
and while exercising the writ jurisdiction the High
Court was not expected to go into that question.

Cont.
In the circumstances,
the Court ought to have refused to dispose
of the writ petition on merits,
leaving the writ petitioners to avail of the
remedy before the civil court.

Cont......
The remedy provided under Article 226 is
not intended to supersede the modes of
obtaining relief before a civil court or to
deny defences legitimately open in such
actions.
So far the question of executability of a
decree is concerned, the Civil Procedure
Code contains elaborate and exhaustive
provisions for dealing with it in all its
aspects.

Cont..
The numerous rules of order XXI of the Code
take care of different situations,
providing effective remedies not only to
judgment-debtors and decree-holders but also
to claimant objectors as the case may be.
In an exceptional case, where provisions are
rendered incapable of giving relief to an
aggrieved party in adequate measure and
appropriate time,
the answer is a regular suit in the civil court.

Cont.
The remedy under the Civil Procedure
Code is of superior judicial quality than
what is generally available under other
statutes, and the Judge being entrusted
exclusively with administration of justice,
is expected to do better.
It will be, therefore, difficult to find a case
where interference in writ jurisdiction for
granting relief to a judgment-debtor or a
claimant objector can be justified.

Cont.
The rules 97 to 106 of order XXI.
envisage questions as in the present
appeal to be determined on the basis
of evidence to be led by the parties
and after the 1976 Amendment,

the decision has been made

appealable like a decree.

Cont
The High Court, in the present case,
therefore,
ought
not
to
have
embarked upon a decision of the writ
petition on merits,
and should have refused to exercise
its special jurisdiction on the ground
of alternative remedy before the civil
court.

Finally.....
.......accordingly,
set
aside
the
impugned judgment
and dismiss the writ petition of the
respondents
The appeal is allowed with costs,
assessed at Rs.2,000.

MODES OF
EXECUTION

Modes of execution

.........All questions arising between the

parties to the suit in the decree
...........shall be determined by the
court ......
.....while executing the decree
.......and not by separate suit.

Application of this rule

Property must be in possession of J.dr
If it is in 3rd party possession.
These provisionsdo not apply..
property cannot be attached
Specific movable property-do not include
money
A decree for money cannot be executed u/r31

 immovable property

Rule 31 & 36 Provides..

mode of execution of decree
.for possession of immovable property
..by removing J.Dr possession must
be delivered to D.Hr
Court will put the D.Hr in possession actual
possession

Case law

Chand Khan V. Wahid Khan

2008(10) SCC 802

order
Time was granted to tenant to vacate
the premises
If he fails to vacate..within that
given time
D. Hr. can file execution petition &
Possession to be effected within 15
days thereon.
In case of necessitydirection issued
to armed forces

Attachment of property
Sec.60 to 64, Rules 41 to 57 of
order.21.deals with.
Subject of attachment of property
Private alienation of property..after
attachment ..void

????????

Is all properties are liable to

attachment?

No.
Liable

All saleable property

Where J.Dr has
disposing power ..
For his benefit.

Exempt

Necessary wearing
apparel
Cooking vessels
Bedding
Tools of artisans
Pension gratituities
Compulsory deposit

Garnishee means.
Garnishee
J.Drs debtor..
Who is liable to pay a debt
Deliver any movable property
Garnishee proceeding..is a
proceeding by which the D.Hr .
.seeks to money or property of J.Dr
in the hands of a 3rd party

Arrest & Detention

Where the decree payment of money.

Injunction..or specific performance of
Execution by detention in civil prison .
where the application.is made for arrest
..court shall instead of issuing warrant for
arrest..
Issue show cause notice
Recognizes rule of natural justice

Who cannot be arrested..

A woman
Judicial officers while exercising duties
Parties, advocates, witnesses while
attending at court
Members of legislative body
J.dr if decree amount less than
Rs.2000/-

procedure
J.dr .may be arrestedat any time
.on any day of execution of decree
After his arrest.
..must produce before court
For the purpose of making arrest..
..no dwelling house may be
entered before & after sunset

Cont
Period of detention..
Decree amount more than 5000/..up to three months
More than 2000/-..up to six weeks

Release of .

On payment of amount
Full satisfaction of decree.
On the request of D.hr
If D.hr fails to pay subsistence
allowance
On the grounds of illness

Case-law
Jolly George Varghese
Vs
Bank of Cochin
AIR 1980 SC 470

Facts

The appellants .. judgment-debtors

respondent-bank decree-holder.
In execution of the decree..
a warrant for arrest and
detention in civil prison
was issued to the appellants u/ s. 51
and order 21, rule 37 of the Code of
Civil Procedure.

Cont..
On an earlier occasion
there had been a similar warrant for arrest
in execution of the same decree.
The decree-holders also. proceeded
against the properties of the judgmentdebtors
and in consequence all their immovable
properties had been attached for the
purpose of sale in discharge of the decreedebts.

Cont..
A receiver was appointed by the
execution court
to manage the properties under
attachment.
Even so, the court had issued a warrant
for the arrest of the judgment-debtors
because on an earlier occasion a similar
warrant had already been issued

Cont..
without any investigation
as regards the current ability of the
judgment-debtors
to clear off the debts or their malafide refusal, if any, to discharge the
debts.

Question
whether under such circumstances the
personal freedom of the judgmentdebtors can be held in ransom until
repayment of the debt,
and if s. 51 read with O. 21, r. 37, C.P.C.
does warrant such a step, whether the
provision of law is constitutional tested
on the touchstone of fair procedure
under Art. 21

Cont.

S.. 51 C.P.C. follows that quondam

affluence and current indigence
without intervening dishonesty or
bad faith in liquidating his liability
can be consistent,
..then no detention is permissible
under s. 51, C.P.C.

Cont.
Equally meaningful is the import of Art. 21
of the Constitution in the context of
imprisonment for non-payment of debts.
The high
value of human dignity and the worth of
the human person enshrined in Art. 21,
read with Arts. 14 and 19, obligates the
State not to incarcerate except under law
which is fair, just and reasonable in its
procedural essence.

Cont.
But this is precisely the interpretation
we have put on the Proviso to s. 51
C.P.C. and the lethal blow of Art. 21
cannot strike down the provision, as
now interpreted.
The words which hurt are "or has had
since the date of the decree, the
means to pay the amount of the
decree".

Cont.
This implies, superficially read, that if
at any time after the passing of an
old decree the judgment-debtor had
come by some resources and had not
discharged the decree,
he could be detained in prison even
though at that later point of time he
was found to be penniless.

Cont.
The simple default to discharge is not
enough.
There must be some element of bad
faith beyond mere indifference to pay,
some deliberate or recusant disposition
in the past or, alternatively,
current means to pay the decree or a
substantial part of it.

Cont.
The provision emphasises the need
to establish not mere omission to pay
but an attitude of refusal on demand
verging on dishonest disowning of
the obligation under the decree.
Here considerations of the debtor's
other pressing needs and straitened
circumstances will play prominently.

Cont..
The question may.
squarely arise some day as to
whether the Proviso to s. 51 read
with O. 21, r. 37 is in excess of the
Constitutional mandate in Art. 21 and
bad in part.
In the present case remitting the
matter for reconsideration,

Cont..
to direct the executing court
..to re- adjudicate on the present means
of the debtors vis a vis the present
pressures of their indebtedness,
or alternatively whether they have had
the ability to pay
but have improperly evaded or postponed
doing so
or otherwise dishonestly committed acts of
bad faith respecting their assets.

Cont.
and direct the executing court to
decide de novo the means of the
judgment- debtors to discharge the
decree in the light of the above
interpretation.
Appeal allowed.

THANQ

UNIT - 6
SPECIAL SUITS

.. special cases
Against Government / Public Officer Sec.
79 82, Order 27
Deals with.
.. procedure & machinery enforceable
by or against Government
Substantive rights are to be determined
in accordance with the provisions of
the constitution

Requirement of Notice
Acc to Sec. 80
..No suit shall be instituted against the
Government or against a public officer any
act purporting to be done in official capacity
Until the expiration of two months after
notice
in writing has been delivered
to central Government
and State Government,
against collector

Notice not
must
necessary
be given ifinindividual
all cases

Object of Notice
To afford an opportunity.
to consider the legal position and to settle
the claim.
If it is appears to be just and proper
..public money should not be wasted
for unnecessary litigation

Notice must contain

1. Name,
2. description
3. and place of residence of the person
giving notice
4. Statement of the cause of action
5. Relief claimed by him

Statutory Notice-Mandatory
The provisions of sec. 80 are express,
explicit and mandatory
and admit no implications or
exceptions
They are imperative in nature & must be
strictly complied with
Notice is the first step in litigation

Case-law

Bihari Chowdhary & Anr vs State

Of Bihar & Ors
1984 AIR 1043

Facts..
The appellants-plaintiffs
instituted

.... a suit for..

declaration of title and delivery of
possession of immovable properties.
The first respondent was the State
Government.

Cont..

Prior to the institution of the suit

the plaintiffs, had issued notice
to the 1st respondent
under section 80 CPC,
but without waiting for the statutory
period of two months to expire,
the plaintiffs instituted the suit.

w/s..

.. filed on behalf of the State

it was contended that
the suit was not maintainable
for want of proper notice under
section 80 CPC.

Cont.

The Trial court

Upheld the contention
and dismissed the suit.
The order was confirmed by the
first appellate court and
the second appeal preferred by the
appellants to the High Court was
dismissed in limine.

BeforeS.C

The short question that arises for

consideration in this appeal
concerns the true scope and
application of Section 80 of the Civil
Procedure Code.

Sec.80.
The effect of the Section
is clearly to impose a bar against
the institution of a suit against the
Government
. until the expiration of two months
after notice in writing has been
delivered

Cont.

the scheme of the Section

it becomes obvious
that the Section has been enacted
as a measure of public policy
with the object of ensuring that
before a suit is instituted against the
Government or a public officer,

Cont..
.is afforded an opportunity to scrutinise the
claim
in respect of which the suit is proposed to be filed
and if it be found to be a just claim,
to take immediate action and thereby avoid
unnecessary litigation
and save public time and money
by settling the claim without driving the person,
who has issued the notice,
to institute the suit involving considerable
expenditure and delay.

Cont..
There is clearly a public purpose
..underlying the mandatory
provision contained in the Section
insisting on the issuance of a notice
setting out the particulars of the
proposed suit
and giving two months time to
Government or a public officer before
a suit can be instituted against them.

Cont.

The object of the Section

is the advancement of justice
and the securing of public good
by avoidance of unnecessary litigation.
When the language used in the Statute is
clear and unambiguous,
it is the plain duty of the Court to give effect
to it and considerations of hardship will not
be a legitimate ground for not faithfully
implementing the mandate of the legislature.

Finally..

confirm the judgment and decree of

the High Court and dismiss this
appeal.

Case Law

State of Andhra Pradesh

VS
Gundugola Venkata
AIR 1965 SC 11 (p-15)

Cont.

In the above case

Supreme Court has observed
Sec. 80 is imperative
and
must
undoubtedly
be
strictly
construed,
failure to serve a notice complying with
the requirements of the statute will entail
dismissal of the suit

In case of urgent relief

After 1976 amendment
.the aggrieved party can institute
a suit even without serving notice
object behind this
To prevent failure or miscarriage of
justice in urgent cases
But in such a case, the court shall
not grant relief

Writ pet
..cannot be said to be a suit within sec.
80 of code
Prior notice is not necessary
Title of suit
Against Central Government - Union of
India
Against state Government the State
Against public officer Government
should be joined as a party

Who is minor?

Meanswho has not attained.18 years

Acc to CPC.the age of majority is
.21 years
Order 32prescribes procedure..
Object..enacted to protect the interests of
Minors and persons of unsound mind
And to ensure that they are represented in
suits or proceeding
by persons who are qualified to act as such

Procedure
Every suit.. by a minor
shall be instituted in his name
..by a person who in such suit shall be
called the next friend of the minor. [O. 32, R. 1].
The next friend should be a person
who is of sound mind,
.who has attained majority,
..who is not a defendant and
whose interest is not adverse to that of the
minor.

Cont..
Where the defendant is a minor,
the court,
on being satisfied of the fact of his
minority,
should appoint a proper person to be
guardian for the suit for such minor,
called the guardian ad litem.

appointment.
An order for the appointment of a
guardian.
.. may be obtained upon application
in the name and on behalf of the minor or
by the plaintiff.
A person appointed as guardian.
shall, unless his appointment is terminated
by retirement,
removal or death,

Cont
continue as such throughout all proceedings
arising out of the suit
including in any appellate or revision court
and any proceedings in any execution
of a decree. (O. 32, R. 3)
On the retirement, removal or death of the
next friend of a minor,
further proceedings are stayed
until the appointment of a next friend in his
place.

Cont
A decree passed against .a minor/
a lunatic.
Without appointment of guardian
..is a nullity & void not merely
voidable
Where suit is instituted without next
friend,
plaint to be taken off the file

Suits by or against??????

MINORS..&
LUNATICS.

Case-law

Ram Chandra Arya vs. Man Singh

& Anr
1968 AIR S C 954

Cont..
This appeal arises out of
a suit for possession of 11th January, 1939,
one Ram Das filed suit No. 354 of 1939 against
Ram Lal in the Court of Judge, Small Causes, for
recovery of a sum of Rs. 144/-.
That suit was later transferred to the court of the
Munsif and
an ex parte decree in that suit was passed on
27th March, 1939,
after the Court held that Ram Lal had been
sufficiently served

Cont.
In execution of that decree,
the house was sold and the sale
certificate was issued on 21st
January, 1941
in favour of Prabhu Dayal, the father
of the appellant in this appeal

Cont.
Formal delivery of possession was
taken
..and the certificate of delivery of
sale is dated 15th May, 1941.
Admittedly ,Ram Lal continued to
live in the house even thereafter, and
on 19th September, 1945,
. he died leaving no heir.

Cont
.on Ram Lal's death, without leaving any
heir,
the property naturally passed by escheat to the
Maharaja of Jaipur.
That principle is clearly recognised in Hindu law.
Thereupon, suit No. 552 of 1946 was filed by
Prabhu Dayal, the father of the appellant,
..for possession of the house on 10th July,
1946.

Cont
The suit was contested
. on the ground that Ram Lal was
a lunatic
and the earlier suit No. 354 of
1939 had been instituted against
Ram Lal
..without appointment of a
guardian-ad-litem,
so that the decree in the suit

Cont
The sale in execution of that decree was
also, therefore, challenged as void.
This defence was accepted by the trial Court
and the suit was dismissed on 24th January,
1950
The first appellate Court also upheld that
decision.
High Court confirmed the decisions of the
lower Courts

Before SC..
.On the face of it, the decree was
passed in contravention of the
provisions of 0. 32 r. 15 of the Code
of Civil Procedure.
It has been found
..as a fact that Ram Lal was
insane when suit No. 354 of 1939
was instituted
as well as when the house was sold
in execution of thedecree passed in

Cont
It is now a well-settled principle that,
if a decree is passed against a minor without appointment
of a guardian,
..the decree is a nullity and is void and not merely
voidable.
This principle becomes applicable to the case of a lunatic
in view of r. 15 of 0. 32 of the Code of Civil Procedure,
so That the decree obtained against Ram Lal was a decree
which has to be treated as without jurisdiction and void.
In these circum- stances, the sale held in execution of that
decree must also be held to be void.

Cont
..held, the decree passed
against Ram Lal was void
and has to be treated as non-existent
and consequently, the sale must be
held to be a nullity.
therefore, no rights could be acquired
by the purchaser Prabhu Dayal, the
father of the 'appellant

Finally..
.Ram Lal having died without leaving
any heir,
the property naturally passed by escheat to
the Maharaja of Jaipur.
That principle is clearly recognized in Hindu
law.
The decision given by the High Court,
in these circumstances, was perfectly
correct.
The appeal is dismissed with costs.

Suits.by

INDIGENT PERSON
ORDER XXXIII

Who is indigent?
Order 33 deals with suits by indigent persons
Order 44 thereof deals with appeals by indigent
persons.
object
to enable a person, who is ridden by poverty,
or not possessed of sufficient means to pay court fee,
to seek justice.
Order 33 and Order 44 ..exempts such indigent
person from paying requisite court fee at the first
instance
and allows him to institute suit or prosecute appeal in
forma pauperis

Cont
A person shall be deemed to be an
indigent person
. if he is not possessed of means
exceeding one thousand rupees in value,
.. or where he is possessed of means
exceeding one thousand rupees in value
.the same are not sufficient to
enable him to pay the fees prescribed by
law for the plaint.

Cont
Access to justice cannot be denied to an
individual
merely because he does not have the
means to pay the prescribed fee."
The Court granting permission to sue as
indigent person does not mean that
the person is exempted from the payment
of the requisite Court fees.
The payment of Court fee is merely
postponed.

Cont
For the purposes of this definition the
means
which a person is possessed of shall
be deemed not to include his
necessary wearing apparel.
Property exempt from attachment in
execution of a decree and the
subject-matter of the suit

Procedure
The particulars required in regard to plaint
in suits;
A schedule of any movable or immovable
property belonging to the applicant with
the estimated value thereof; and
Signature and verification ;
The application to be presented by the
applicant to the Court in person

?????????????

whether a public limited company

can file a suit as an indigent person?

(2001) 5 SCC 22
PETITIONER:
UNION BANK OF INDIA

Vs.

RESPONDENT:
KHADER INTERNATIONAL CONSTRUCTION &
ORS.

Facts
The respondent filed sought
permission to sue as an indigent person.
The appellant herein raised objections and
contended that
the plaintiff being a public limited company
was not a 'person' coming within the purview
of Order XXXIII, Rule 1 CPC,
and the word 'person' referred to therein
applies only to a natural person
and not to other juristic persons.

Cont..
The Subordinate Judge permitted the
respondent-plaintiff to sue as an
indigent person.
Aggrieved thereby,
the appellant filed a Revision and the
same was dismissed by the learned
Single Judge of the High Court and
that judgment of the High Court is
assailed in this appeal.

Argument of appellant.
,a public limited company being a juristic
person
cannot present an application in accordance with
Rule 3 of Order XXXIII.
It was submitted that under Rule 3, the person who
is presenting the application must be such person
who can answer all material questions relating to
the application
and therefore, the scheme of Order XXXIII of the
CPC envisages only a natural person to file a suit
as an indigent person

Res. Contention
.that a suit can be filed as an indigent
person
not only by natural persons but also by all juristic
persons
who are permitted to file a suit in that capacity.
It was contended that Order XXXIII is a
benevolent provision
intended to help the litigants who are unable to
pay the court fee at the initial stage
and that the said provision is to be construed
liberally.

Cont.
argued that the definition of
the word 'person' contained in the
General Clauses Actwill apply
..and that extended meaning is to
be attributed to the word 'person'
referred to in Order XXXIII.

S.C opined
Order XXXIII, CPC is
an enabling provision which allows filing of a suit
by an indigent person
without paying the court fee at the initial stage.
If the plaintiff ultimately succeeds in the suit,
.the court would calculate the amount of court
fee which would have been paid by the plaintiff if
he had not been permitted to sue as an indigent
person and that amount would be recoverable by
the State from any party ordered by the decree
to pay the same.

Cont.
It is further provided that
when the suit is dismissed,
then also the State would take steps to recover the
court fee payable by the plaintiff
and this court fee shall be a first charge on the
subject matter of the suit.
So there is only a provision for the deferred payment
of the court fees and this benevolent provision is
intended to help the poor litigants who are unable to
pay the requisite court fee to file a suit because of
their poverty.

Before 1976
. the term "indigent person" had a slightly different
Explanation.
In that Explanation, it was stated that a person is a
pauper
when he is not possessed of sufficient means to enable
him to pay the fees prescribed by law for the plaint in
such suit, or where no such fee is prescribed,
if he is not entitled to property worth one hundred
rupees other than his necessary wearing apparel and the
subject matter of the suit.
The expression 'other than his necessary wearing
apparel' was deleted by CPC Amendment Act No. 104 of
1976.

Cont..
These words had assumed some
importance in attributing the
meaning 'natural person' to the word
'person' mentioned in Order XXXIII.
A company, idol or other juristic
person cannot have the wearing
apparel
Argument lead by appellant was not
correct

Cont
A company being a juristic person, it would be
represented by a person competent to represent it. It is
enough that a person competent to represent a company
need present the application under Rule 3 of Order XXXIII.
Minors, lunatics or persons under any disability are also
entitled to file suit either represented through a guardian
or next friend.
They can also maintain an application under Order XXXIII.
Under such circumstances, the real petitioner is not the
person to present the application, but the guardian or the
next friend who is competent to represent such petitioner
to present the application under Rule 3, Order XXXIII.

Cont.
A company being a juristic person, it would be
represented by a person competent to represent it.
It is enough that a person competent to represent a
company need present the application under Rule 3 of
Order XXXIII.
Minors, lunatics or persons under any disability are also
entitled to file suit either represented through a guardian
or next friend.
They can also maintain an application under Order XXXIII.
Under such circumstances, the real petitioner is not the
person to present the application, but the guardian or the
next friend who is competent to represent such petitioner
to present the application under Rule 3, Order XXXIII.

Finally..
Therefore, the word 'person' has to be given its meaning
in the context in which it is used.
It refers to a person who is capable of filing a suit and
this being a benevolent provision, it is to be given an
extended meaning.
Therefore, .that a public limited company, which is
otherwise entitled to maintain a suit as a legal person,
can very well maintain an application under Order
XXXIII, Rule 1 CPC. We hold that the word 'person'
mentioned in Order XXXIII includes not only a natural
person but other juridical persons also.
The appeal is, therefore, without any merit and dismissed
without any order as to costs.

 INTERPLEADER SUIT

 Inter pleader suit has some peculiarity with

regard to the contest on it's subject matter .
It is a suit where there must be more than one
defendants and the defendants contest against
each other for the disputed property.
In an inter pleader suit the plaintiff holds the
movable or immovable property and files the
suit only to ascertain as to whom he should
deliver the property because the defendants
claim the property against each other or they
interplead against each other.

 In every inter pleader suit , there must be

some debt or sum of money or other
property in dispute between the
defendants only .
And the plaintiff must be a person who
claims no interest therein other than for
charges or costs and who is ready to pay
or deliver the property to such of the
defendants as may be decided by the
court to be entitled to the property.

 Section 88 of the Civil Procedure Code lays down

that where two or more persons claim adversely
to one another, the same debt , sum of money or
other property , movable or immovable , from
another person , who claims no interest therein
other than for charges or costs and who is ready
to pay or deliver it to the rightful claimant , such
other person may institute a suit of inter pleader
against all the claimants for the purpose of
obtaining a decision as to the person to whom the
payment or delivery shall be made and of
obtaining indemnity for himself .

Cont.
The real dispute , in an inter pleader suit ,
must be only in between the defendants .
The plaintiffs position is impartial in such
type of suit . In the inter pleader suit the
defendants claim adversely to each
other , plaintiff does not admit title of
even one of the defendants but is willing
to pay or deliver the property .

 According to Order 35 , Rule 1 ..the plaint shall

state: 1) That the plaintiff claims no interest in the subject
matter in dispute
other than the charges or costs . For example , when
consigned goods are claimed by several parties , the
railway can bring an inter pleader suit claiming only
a lien for freight , demurrage etc. ;
2) the claims made by the defendants severally , and
3) that there is no collusion between the plaintiff and
any of the defendants .

THE END

UNIT - 7
APPEAL, REVISION & REVIEW

768

SUIT AND APPEAL

There is a fundamental distinction
between the right of suit and right to
file an appeal (gangabai vs Vijay
Kumar AIR 1974 SC 1126)
Unless a right of appeal is clearly
given by a statute it does not exist
The litigant has independently of
only statute a right to institute only
suit of a civil nature
769

??????
Appeal has not defined in the code
Acc to dictionary meaning ........
appeal is the ..judicial
examination of decision by a higher
court

770

ESSENTIALS ......THREE BASIC

ELEMENTS

A DECISION
AGGREIVED PARTY
APPEALABLE ORDER

771

Cont....
Right of appeal... Is not a natural/inherent
right
It is well settled that an appeal is a creature
...of statute
and there is no right of appeal
unless it is given clearly and in express
terms by a statute
The right of appeal is a substantive right
and not merely a matter of procedure
772

SimplyMeans.....

....... it is a complaint made to

asuperior court
against the decision of a subordinate
court
with the object of getting such order
set-aside or reversed.
Appeal. is the continuation of the
original
proceedings
beforea
superior court.
773

Cont
The statutory right of appeal confers
the right of re-hearing the whole
dispute,
unless expressly restricted in scope
and the appellate court is not
confinedto the reasons which have
been given by subordinate court for
its decision.
774

Who may appeal

As an appeal is a continuation ofthe suit
only such persons who were parties to
thesuit
and who are adversely affected by the
decree may appeal.
A person who was not a party to the suit
cannot appeal against thedecree,
unless such person is adversely affected,
and is permitted by the Appellate Court
to file an appeal
775

Forum of Appeal
The right of appeal is a substantive
right,
..forum ofappeal is a matter of
governed byprocedural law.
Powers of Appellate Court:
An appellate court may either
confirm, vary,or reverse the decree
or pass the orderofremand of the
case
776

Revision
Revision means. reexamination of cases whichinvolve
the illegal assumption,
non-exercise or irregular exercise of
Jurisdiction
Revisional jurisdiction does not
confer any substantive right,
and the right of revision is merely a
privilege granted to a party.
777

Cont
In Revision. the court can
interfere,
if the casebrought before it is a
decided case by subordinate court,
..and when the same is not
appealable.
If this condition is fulfilled, the
revisional court may interfere to
check..
778

Cont.
.exercised a jurisdiction not
vested init,
failed to exercise a jurisdiction
vested in it,
acted in exercise of its jurisdiction
illegally
or with material irregularity
779

Difference between appeal and

revision
Basic difference between an appeal
and a revision
is that appeal is a right of party,
but revision is a discretionary power
of court.
An appeal is continuation of the
proceedings, in effect the entire
proceedings are before the appellate
court and
780

Cont.
it has power to review the evidence
subject
to
statutory
limitations
prescribed.
But in the case of a revision
whatever powers the revisional
authority may or maynot leave,
it have nopower to review the
evidence
unless
the
statute
expressly confers on it that power
781

Cont.
(1) An appeal lies to a superior court,
which may not necessary be a High Court,
. while a revision application under the
code lies only to the High Court.
(2) An appeal lies only from the decrees
and appealable order,
..but a revision application lies from
any decision of a court subordinate to the
High Court from which no appeal lies to
the High Court or to any subordinate court.
782

Cont..
(3) A right of appeal is a substantive right
conferred by the statute, while the revisional
power of the High Court is purely discretionary.
(4) An appeal abates if the legal
representatives of a deceased party are not
brought on record within the prescribed period.
A revision application however does not abate
in such case. The High Court may at any time
bring the proper parties on the record of the
case.

783

Cont
(5) The grounds for an appeal and
revision application are also different.
An appeal lies on a question of fact
or law or of fact and law,
while a revision application lies only
on the ground of jurisdictional error.
In case of appeal the memorandum
of appeal
784

Cont.
must be filed before the appellate court by
the aggrieved party, but filing of an
application is not necessary in case of
revision.
(7) Ordinarily appellate jurisdiction
involves rehearing on question of law as
well as on facts of the case whereas
revisional jurisdiction involves only the
question of law and this jurisdiction is
never considered a rehearing.
785

Cont.
An appeal is considered to be a
consideration of the original proceeding
whereas unlike appeal revisional is not the
constitution of the original proceeding.
An appeal is a right based remedy and can
be claimed as of right if there is statutory
existence of it, where the revision is the
purely discretionary remedy and cannot be
claimed as of right.

786

Difference between

Appeal & Revision

787

??????
Appeal
Sec. 96
right of party
Continuation of suit
proceedings
Has a power to review
the evidence
..lies to superior
court,..not necessarily
be a High Court

Revision
Sec.115
.Discretionary power
of court
Correction of
jurisdiction error
No power to review
the evidence unless
statute expressly
confers
Lies only to High court
788

Cont
Appeal
..lies only from the
decrees & appealable
orders
An appeal abates ..if
L.Rs not brought on
record within
prescribed period
Lies on question of
fact & law
Can be claimed as a
right

Revision
.which order is not
appealable..then
revision lies
Does not abate .HC
can bring proper
parties
Lies on only question
of law i.e.
jurisdictional error
Cannot be claimed as
of right
789

REVIEW
Review means consideration, inspection or reexamination of a subject or thing.
According to section (114) of CPC,
any person aggrieved by a decree or order
from which an appeal is allowed butnot filed,
or a decree ororder from which no appeal is
allowed,
can file a reviewpetition in the same court
which passed such decree or order
..on the following grounds
790

Cont....
When new and important matter or
evidence is discovered which after
the exercise ofdue diligence was not
within his knowledge,
or could not be produced by him at
the time when the decree or order
was passed
When there is anymistake or error
apparent on the face ofthe record
When there is anyother

791

1st Appeal & 2nd Appeal

A first appeal lies against ..a decree passed
by a court exercising original jurisdiction
A second appeal lies against .a decree
passed by a first appellate court
Whereas a first appeal can be filed in a superior
court which may or may not be a High court
A second appeal can be filed only in the High
court
A first appeal is maintainable on a question of
fact or on a question of law or on a mixed
question of fact & law
792

Cont
A second appeal can be filed on a
substantial question of law
No second appeal lies if the amount
does not exceeding Rs. 3000
No letters patent appeal is maintainable
against a judgment rendered by a single
judge of High court to a division bench
of the same court either in first appeal
or in second appeal
793

Right of Appeal
The right of appeal is a substantive
and vested right & accrues in favour of the
litigant on the day the lis commences
and although it may be actually exercised
only after an adverse judgment is
pronounced
Such a right is governed by the law prevailing
at the date of the institution of the suit
and not by the law in force at the time when
the judgment is rendered or an appeal is
preferred
794

Sec.96
Save where otherwise expressly provided
in the body of this Code
or by any other law for the time being in
force,
an appeal shall lie from every decree
passed by any Court exercising original
jurisdiction
the Court authorized to hear appeals from
the decisions of such Court.
An appeal may lie from an original decree
795

Cont.
No appeal shall lie from a decree
passed by the Court with the consent
of parties.
No appeal shall lie, except on a
question of law, from a decree in any
suit of the nature cognisable by
Courts of Small Causes,
when the amount or value of the
subject-matter of the original suit
does not exceed three thousand

796

Agreement not to appeal

A right of appeal is a statutory right.

If the statute does not confer such right,
no appeal can be filed
even with the consent or agreement
between the parties
But an agreement between the parties not
to file an appeal is valid
if it is based on lawful or legal consideration
and if it is otherwise it is not illegal
797

Consent Decree Appeal

Sec. 96(3) declares that no appeal shall lie
against a consent decree.
This provision is based on the broad
principle of estoppel
Once the decree is shown to have been
passed with the consent of the parties, sec.
96(3) becomes operative and binds them.
It creates an estoppel between the parties
as a judgment on consent
798

Cont
Where there is a partial compromise and
adjustment of a suit and a decree is passed
in accordance with it, the decree to that
extent is a consent decree and is not
appealable
This provision, however, does not apply
where the factum of compromise is in
dispute or the compromise decree is
challenged on the ground that such
compromise had not been arrived at lawfully
799

CASE LAW
Garikipati Veerayya
VS
N. Subbiah Chaudhry
AIR 1957 SC 540

800

Cont....
Supreme Court laid down
relating to right of appeal

principles

1. An appeal is a continuation of suit and

virtually rehearing of the matter
2. The legal pursuit of a remedy, suit, appeal
and second appeal are really but steps in a
series of proceedings all connected by an
intrinsic unity and are to be regarded as one
legal proceeding
3. The right of appeal is not a mere matter of
procedure but is a substantive right
801

Cont....
4. The institution of the suit carries with it the
implication that all rights of appeal then in
force are preserved to the parties thereto till
the rest of the career of the suit
5. The right of appeal is a vested right and such
a right to enter the superior court accrues to
the litigant and exists on and from the date
the lis commences and, although it may be
actually exercised when the adverse judgment
is pronounced, such right is to governed by
the law prevailing at the date of the institution
of the suit or proceeding and not by the law
that prevails at the date of its decision or at
the date of the filing of the appeal

802

Cont
6. This vested right of appeal can be
taken away only by a subsequent
enactment, if it so provides expressly
or by necessary intendment and not
otherwise

803

Thanq
804

Unit 8
Limitation Act
Introduction

Limitation.....
......branch of adjective law
Rests upon three main
foundations.......
Justice
Convenience
Need to encourage diligence

History.

First time a Law of Limitation was passed ..1859.

Act of 1859 was followed by 1871
and the same was followed by .1877.
Finally the Limitation Act, 1908. consolidated
the law
relating to limitation for suits, appeals and
applications.
Present Limitation Act 1963,
was passed to implement the Third Report of
the Law Commission on the Indian Limitation Act.

Object
That long dormant claims have more
of cruelty than justice in them;
That a defendant might have lost the
evidence to dispute the state claim;
That persons with good causes of
actions should pursue them.

Definition
Section 2 (j) of the Limitation Act,
1963, period of limitation means
the period of limitation prescribed
for any suit, appeal or application by
the Schedule and
prescribed period means the period
of limitation computed in accordance
with the provisions of the Act.

cont
.....law of limitation ......is to
prevent.....disturbance or deprivation
of rights of parties
Rules of limitation......not meant to
destroy the rights of parties
Meant to.....see that parties do not
resort to dilatory tactics
.....but seeking their remedy
promptly

Cont
The object of providing a Legal
remedy
. is repair the damage cause by
reasons of legal injury

Scheme.....
The 118
1schedule
114
to to
113
137
117
relate
torelate
thetoAct
to
suit
contains
applications
appeals 137 articles

Sec 3
Bar of limitations : The operative provisions of Act begin
with sec 3
Dismissal of time bar proceedings
mandatory even the defendant does
not set up the limitation as a defence

Sec 4

Expiry of prescribed period when court

re-opens.
This section based on the principle
that the law does not compel a man to
do the impossible
....may be instituted on the day when
the court re-opens

Lex non cogit ad

impossibilia
C.F. Angadi
vs
Hirannayya
AIR 1972 S.C 239
The law does not compel a man to do
the impossible and
the act of court should not harm no
one

Facts....
Sale agreement executed between the
plaintiff and defendant
Suit filed by the
performance ........

plaintiff

for

specific

Trail court decreed the suit.....

Defendant filed an appeal before H.C....
During pendency of appeal.......
??????????

Cont.....
o As matter in controversy between the
parties
o .in the appeal turns upon the
construction of the compromise decree,
o The defendant agrees to receive from the
plaintiff a lakh of rupees paid as
consideration for the sale of the property
o The period of time fixed for the payment
by the plaintiff to the defendant of-this
amount stated above is from 10-3-1947
till 1-1-1960.

Cont....
The plaintiff agrees to deposit the amount
in court for payment to the defendant
On failure of the plaintiff to deposit the amount in
court by 1-1-1960 his suit now in appeal will be
dismissed with costs throughout.

It is agreed by the parties that time is the

essence of the contract and no further
extension of time would be allowed and
the dismissal of the suit with costs would
be automatic

Cont...
The respondent applied for challan on 2212-1959 to deposit the amount
and a challan was issued to him on 24-121959,
the last working day before the court
closed for Christmas holidays.
December 31, 1959 and January 1, 1960,
were holidays.
Neither the lower courts nor the banks
were open on these days.
The respondent made the deposit on 2-1-

Cont.....
and sought to enforce his right under
the decree
by compelling the appellant to execute the
conveyance in terms of the compromise
decree by filing execution case No. 25 of
1960
The appellant also filed execution case No.
45 of 1960 . for cost on the basis that
the suit stood dismissed as per the
provision in the decree on the failure of
the respondent to deposit the amount by
1-1-1960.

Cont...
These two petitions were heard together,
and the court passed an order

holding that the respondent had made the

deposit in substantial compliance with the decree
and allowing execution case No. 25 of 1960 and
dismissing execution case No. 45 of 1960.
Against this order, the appellant filed Appeals
before the High Court of Mysore.
A Division Bench of the High Court, by its
judgment . dismissed the appeals with costs

Question raised......
whether the deposit made by the
respondent on 2-1-1960 was within
the time specified in the compromise
decree
and would enable him to compel the
appellant to execute the sale deed in
accordance with the provisions of the
compromise decree.

Argument of appellant...
. that the respondent had practically six
month's time to deposit the amount,
that he should not have waited for the last day
of the period allowed to him by the decree
to deposit the amount
and if he was not diligent to deposit the
amount earlier,
he must suffer the consequences if the court
happened to be closed on the last day on which
he should have made the deposit

Res..Counsel
..said that there is a distinction between a case
where under a decree
an act has to be performed by a party on a day certain
and a case where the party has the liberty to perform
the act within a certain time or by a certain day;
that in the former case, if the act cannot be performed
by reason of circumstances beyond his control,
he will be relieved against the consequences of his
default by reason of the maxim Lex non cogit ad
impossibility (the law does not compel a man to do that
which he cannot possibly perform)
if he performs the act at the next available opportunity

Cont.....
but where he has to perform an act within a certain
period or by a certain date as in this case,
the law will not take notice of the circumstance that
the act became incapable of performance by reason
of circumstances beyond his control on the last day
of the period.
Whether there is any logical or reasonable basis for
making the distinction,
.. clear that in this case the respondent had the
right or, perhaps, more accurately, the liberty to
deposit the amount in court till and including 1-11960.

Cont....
.the execution court has the right to construe
a decree in the light of the applicable provisions of
law
and if in this case on a construction of the decree in
the light of the applicable provision of law,
it found that the deposit made by the respondent
on 2-1-1960 was according to law a deposit in
compliance with the terms of the decree,
then the execution court was not varying the terms
of the decree but executing the decree as it stood
after considering the effect of the deposit in the
light of the relevant law.

Finally....
there is no evidence in this case that at the time
when the compromise was entered into,
..either of the parties knew that the 31st of
December, 1959 and the 1st of January, 1960, would
be holidays.
In these circumstances that the deposit made
by the respondent on 2-1-1960 was in substance and
in effect a deposit made in terms of the compromise
decree
and that the High Court was right in its conclusion.
.dismiss the appeals but in the circumstances
without any order as to costs.

Sec 5
Extension of the prescribed period
for sufficient cause
Does not apply to suit
It will apply to the applications
except those U/Or 21 of c.p.c.

Cont
In construing Section 5 it is relevant
to bear in mind two important
consideration
The first consideration is that
the expiration of the period of
limitation prescribed for making an
appeal gives rise to a right in favour
of the decree holder to treat the
decree as binding between the
parties.

Cont..
When the period of limitation
prescribed has expired
The decree holder has obtained
a benefit under the law of limitation
to treat
the decree has beyond
challenge
and this legal right which has
accrued to the decree holder by
lapse of time should not be light
heartedly disturbed .

Cont..
The other consideration which cannot be ignored
.is that if sufficient cause for excusing delay
is shown
Discretion is given to the court to condone delay
and admit the appeal.
This discretion has been deliberately conferred
on the court
in order that judicial power and discretion in that
behalf should be exercised to advance
substantial justice.

Principles for extension of time

under section-5
(a) the party seeking relief has to
satisfy the court
that he had sufficient cause for not
preferring the appeals, etc. within
the prescribed time
(b) the explanation has to cover the
entire period of delay

Cont.
a litigant should not be easily permitted
to take away a right which has accrued to
his adversary by lapse of time
(d) the proof of sufficient cause is a
condition precedent for the exercise of the
discretionary jurisdiction vested in the
court by section-5.
After sufficient cause is shown then the
court has to enquire, whether in its
discretion it should condone the delay

Cont.
(e) the discretion conferred in the court is
a judicial discretion and must be exercised
to advance substantial justice
(f) no liberal view should be taken merely
because
the
defaulting
party
is
Government
(g)
even sheer indifference of the
Advocate cannot stand
in the way of
condoning the delay when there is no
laches on the part of the litigant

Cont..
(h) when there is remiss on the part of the
Advocate,
the question comes up for consideration
whether the mistake was bona fide
or was merely a device to cover ulterior
purpose such as laches on the part of the
litigant or an attempt to save limitation in
an underhand way.
(State of Assam and others V.Naresh
Chandra Das and Another, AIR 1983
Gauhati 24)

Case Laws
The Supreme Court in
Collector, Land Acquisition
VS
Katiji
AIR 1987 SC 1953,
laid down the following six principles for
dealing with the application under section5.

Cont.
1. Ordinarily, a litigant does not stand to
benefit by lodging an appeal late
2. Refusing to condone delay can result in a
meritorious matter being thrown out at
the very threshold and cause of justice
being defeated
3. As against this when delay is condoned,
the highest that can happen is that a
cause would be decided on merits after
hearing the parties

Cont..
3. Everydays delay must be explained
does not mean that a pedantic
approach should be made.
Why not every hours delay, every
seconds delay.
This doctrine must be applied in
rational
common
sense
in
a
pragmatic manner.

Cont.
4. When substantial justice and
technical consideration are pitted
against each other,
course of substantial justice deserves
to be preferred for the other side
cannot claim to have vested right in
injustice being done because of a
non-deliberate delay.

Cont..
5.There is no presumption that delay is
occasioned deliberately on the
account of culpable negligence or on
account of mala fides.
A litigant does not stand to benefit by
resorting to delay.
In fact, he runs a serious risk

Cont..
6. It must be grasped that
judiciary is respected not on
account of its power to legalize
injustice on technical grounds but
because it is capable of removing
injustice and is expected to do so.

Case-law

Basawaraj v. Land Acquisition Officer,

(2013) 14 SCC 81

Facts.
An appeal for enhancement of
compensation
in land acquisition matters
Appellant-landowners preferring
appeal before High Court
after delay of five and a half years
for enhancement of compensation -

Cont.
- High Court rejected
the application for condonation of
delay
and consequently appeal of the
appellant-landowners

Cont.
- Before Supreme Court
they contended that
High Court erred in not condoning
delay
whereas in earlier cases it had
condoned delay by depriving
landowners from interest for the
delay period

Condonation of delay

Approach of courts while condoning

delay
Held, discretion to condone delay
has to be exercised judiciously
based on facts and circumstances of
each case
`Sufficient cause' cannot be liberally
interpreted if negligence, inaction or
lack of bona fides is attributed to the
party -

Cont.
Even though limitation may harshly affect
rights of a party
but it has to be applied with all its rigour
when prescribed by statute
Courts have no choice but to give effect
to the same
Result flowing from statutory provision is
never an evil
Inconvenience not ground for interpreting
a statute - Courts do not have power to
extend period of limitation based on
equitable grounds -

Cont.
If courts start substituting period of
limitation
then it would amount to legislation,
which is impermissible
If party acted with negligence, lack of
bona fides or inaction then there
cannot be any justified ground for
condoning the delay
There is no justification in condoning
delay by imposing conditions

Cont..
Each application for condonation of
delay
has to be decided within the
framework laid down by Supreme
Court
If courts start condoning delay where
no sufficient cause was made out
by imposing conditions then that
would amount to violation of
statutory principles and showing

Cont..
Distinction between sufficient cause and
good cause
Held, sufficient cause means a cause for
which a party could not be blamed for his
absence
A party should not have acted with
negligence or lack of bona fides
Degree of proof is less in case of good
cause whereas it is higher in case of
sufficient cause

Object
- Held, it is founded on public policy
with aim of securing peace,
to suppress fraud and perjury,
to quicken diligence and
to prevent oppression
It seeks to bury all acts of the past
which have not been agitated
unexplainably and have become
stale due to lapse of time,

Finally..
Held, any order on condonation of delay without
considering sufficient cause unwarranted - Under
these circumstances High Courts must appreciate
that they were deciding an application under
Limitation Act and not writ petitions where
condonation of inordinate delay in exceptional
circumstances is permissible - Benefit of illegal or
irregular order cannot be extended to those who
are similarly situated - As appellant-landowners
had not made out sufficient cause, rejection of
their application for condonation of delay was
justified

Case Laws
The Supreme Court in
Collector, Land Acquisition
VS
Katiji
AIR 1987 SC 1953,
laid down the following six principles for
dealing with the application under section5.

Cont.
1. Ordinarily, a litigant does not stand to
benefit by lodging an appeal late
2. Refusing to condone delay can result in a
meritorious matter being thrown out at
the very threshold and cause of justice
being defeated
3. As against this when delay is condoned,
the highest that can happen is that a
cause would be decided on merits after
hearing the parties

Cont..
3. Everydays delay must be explained
does not mean that a pedantic
approach should be made.
Why not every hours delay, every
seconds delay.
This doctrine must be applied in
rational
common
sense
in
a
pragmatic manner.

Cont.
4. When substantial justice and
technical consideration are pitted
against each other,
course of substantial justice deserves
to be preferred for the other side
cannot claim to have vested right in
injustice being done because of a
non-deliberate delay.

Cont..
5.There is no presumption that delay is
occasioned deliberately on the
account of culpable negligence or on
account of mala fides.
A litigant does not stand to benefit by
resorting to delay.
In fact, he runs a serious risk

Cont..
6. It must be grasped that
judiciary is respected not on
account of its power to legalize
injustice on technical grounds but
because it is capable of removing
injustice and is expected to do so.

Case-law

Basawaraj v. Land Acquisition Officer,

(2013) 14 SCC 81

Facts.
An appeal for enhancement of
compensation
in land acquisition matters
Appellant-landowners preferring
appeal before High Court
after delay of five and a half years
for enhancement of compensation -

Cont.
- High Court rejected
the application for condonation of
delay
and consequently appeal of the
appellant-landowners

Cont.
- Before Supreme Court
they contended that
High Court erred in not condoning
delay
whereas in earlier cases it had
condoned delay by depriving
landowners from interest for the
delay period

Condonation of delay

Approach of courts while condoning

delay
Held, discretion to condone delay
has to be exercised judiciously
based on facts and circumstances of
each case
`Sufficient cause' cannot be liberally
interpreted if negligence, inaction or
lack of bona fides is attributed to the
party -

Cont.
Even though limitation may harshly affect
rights of a party
but it has to be applied with all its rigour
when prescribed by statute
Courts have no choice but to give effect
to the same
Result flowing from statutory provision is
never an evil
Inconvenience not ground for interpreting
a statute - Courts do not have power to
extend period of limitation based on
equitable grounds -

Cont.
If courts start substituting period of
limitation
then it would amount to legislation,
which is impermissible
If party acted with negligence, lack of
bona fides or inaction then there
cannot be any justified ground for
condoning the delay
There is no justification in condoning
delay by imposing conditions

Cont..
Each application for condonation of
delay
has to be decided within the
framework laid down by Supreme
Court
If courts start condoning delay where
no sufficient cause was made out
by imposing conditions then that
would amount to violation of
statutory principles and showing

Cont..
Distinction between sufficient cause and
good cause
Held, sufficient cause means a cause for
which a party could not be blamed for his
absence
A party should not have acted with
negligence or lack of bona fides
Degree of proof is less in case of good
cause whereas it is higher in case of
sufficient cause

Object
- Held, it is founded on public policy
with aim of securing peace,
to suppress fraud and perjury,
to quicken diligence and
to prevent oppression
It seeks to bury all acts of the past
which have not been agitated
unexplainably and have become
stale due to lapse of time,

Finally..
Held, any order on condonation of delay without
considering sufficient cause unwarranted - Under
these circumstances High Courts must appreciate
that they were deciding an application under
Limitation Act and not writ petitions where
condonation of inordinate delay in exceptional
circumstances is permissible - Benefit of illegal or
irregular order cannot be extended to those who
are similarly situated - As appellant-landowners
had not made out sufficient cause, rejection of
their application for condonation of delay was
justified

Section 6

Legal disability

Says..
.does not prevent
Running of limitation
But only extends the period of
limitation
????????

Cont.
excuses an insane person,
minor
and idiot
to file suit or make an application
for the execution of a decree within the time
prescribed by law
and enables him to file the suit
or make an application after the disability has
ceased,
counting the period of time from the date on
which the disability ceased.

Cont....
If one disability supervenes and
another disability or
one disability is followed by another
without leaving a gap the suit
or application for execution may be
filed after both disabilities have
ceased to exist.

Cont....
o If the disability or disabilities
continue till the persons death
o then the representative of the
deceased
o or on whom the title devolves is
allowed to file a suit or make an
application for execution within the
time allowed by law
o counting it from the death of the
person.

The conditions for the applicability......

The disability is continued only to

minority, insanity and idiocy.
This section is applicable to suits
etc., brought by ......
and not against persons under
disability.
The disability must exist at the time
from which the period of limitation is
to be reckoned.

Cont.....
The proceeding in question must be
a suit
or an application for the execution of
a decree.
The period of limitation for the
proceeding must be specified in third
column of the schedule to Limitation
Act.

Appeals by minor not

attracted
Section 6 does not attract to the appeals
when minors wants to prefer an appeal against
the judgement and decree passed by the trial
court during his minority in which he was
represented by his guardian.
The reason behind exclusion of s. 6 to appeal is
that
when a suit is instituted the next friend is
appointed for a defendant or the plaintiff by the
court under Or 32, Code of Civil Procedure and
the decree passed in the suit in the presence of
the guardian ad litem is binding on the minor

Burden of proof

On the person who relies on ....

....such provisions
Computation of period.....
......limitation for a minor....
The date on which ..he attains
majority
Must be excluded from calculation

Sec.9

Continuous running of time

Where once time has begun to run,
no subsequent disability
or inability to institute a suit or to
make an application stops it.

Computation....
Calculation of period of limitation
Sec.12 to 18 deals........
Ex. Pronote......acc to schedule.....3
years
Appeal......90 days....etc.....
In computing the period of limitation
prescribed for any suit....

Cont.....
The data shown in the column III of
the schedule
as the day from which the period of
limitation begins to run shall be
excluded.

In an Appeal
The day on which the period begins
to run
The day on which the judgment was
pronounced
The time requisite for obtaining a
copy of the decree, sentence or order
The time requisite for obtaining a
copy of the judgment

Case Law
State of U.P.
VS
Maharaja Narain
AIR 1968 SC 960

Cont.
The question whether the appeal preferred
was in time or not
should be considered on the basis of
information available from the copy of the
judgment and decree filed along with the
memorandum of appeal
and not from other copies which the party
might have got and used for other
purposes with which the court has nothing
to do

In revision
The following periods shall be
excluded
(a) the day on which the time begins
to run
(b) the day on which the judgment
was pronounced
the time requisite for obtaining a
copy of the decree
The time requisite for obtaining a
copy of the judgment

To set aside an award

(a) the day on which time begins to
run
(b) the time requisite for obtaining a
copy of the award

SECTION - 17
Where, in the case of any suit or
application for which a period of
limitation is prescribed by this Act,-

Cont.
(a) the suit or application is based
upon the fraud of the defendant or
respondent or his agent; or
(b) the knowledge of the right or
title on which a suit or application is
founded is concealed by thefraud
of any such person as aforesaid; or

Cont..
(c) the suit or application is for relief
from the consequences of a mistake;
or
(d) where any document necessary
to establish the right of the plaintiff
or applicant has been fraudulently
concealed from him;

Cont
the period of limitation shall not
begin to run until the plaintiff or
applicant has discovered the fraud or
the mistake

with reasonable diligence, have

discovered it;
or in the case of a concealed
document, until the plaintiff or the
applicant firsthad the means of
producing the concealed document

Cont.
Provided that nothing in this section
shall enable any suit to be instituted
or application to be
made to recover or enforce any
charge against,
or
set
aside
any
transaction
affecting, any property which-

Cont.
(i) in the case of fraud, has been
purchased for valuable consideration
by a person who was not aparty to
the fraud
and did not at the time of the
purchase know,
or have reason to believe, that any
fraud had been committed, or

Cont.
(ii) in the case of mistake,
has been purchased for valuable
consideration subsequently to the
transaction in which the mistake was
made, by a person who did not
know, or have reason to believe,
that the mistake had been made

Cont.
(iii) in the case of a concealed document,
has
been
purchased
for
valuable
consideration by a person
who was not a party to the concealment
and, did not at the time of purchase know,
or have reason to
believe, that the document had been
concealed.

Cont.
(2) Where a judgment-debtor has, by
fraud or force, prevented the
execution of a decree or order within
the period of limitation,
the court may, on the application of
the judgment-creditor made after the
expiry of the said period extend the
period for execution of the decree or
order:

Cont.
Provided that such application is
made within one year from the date
of the discovery of the fraud
or the cessation of force, as the case
may be.

Effect of
Acknowledgment

Acknowledgement

The word acknowledgement means an

admission of the truth of one's liability
an acknowledgment is an admission by the
writer that there is a debt owing by him,
either to the receiver of the letter or to some
other person on whose behalf the letter is
received
but it is not enough that he refers to a debt as
being due from somebody.
In order to take the case out of statute there
must, upon the fair construction of letter,
read by the light of the surrounding
circumstances, be an admission that the writer

Section 18
(1)

Where, before the expiration of the prescribed period

for a suit or application in respect of any property or
right,
(2)an acknowledgement of liability in respect of such
property or right has been made in writing signed by the
party against whom such property or right is claimed,
(3) or by any person through whom he derives his title or
liability,
(4)a fresh period of limitation shall be computed from the
time when the acknowledgement was so signed
(5) Where the writing containing the acknowledgement is
undated, oral evidence may be given of the time when it
was signed; but subject to the provisions of the Indian
Evidence Act, 1872 oral evidence of its contents shall not
be received

Explanation
(a)

An acknowledgment may be sufficient though

it omits to specify the exact nature of the
property or right, or avers that the time for
payment, delivery, performance or enjoyment
has not yet come or is accompained by a refusal
to pay, deliver, perform or permit to enjoy, or is
coupled with a claim to set-off or is addressed to
a person other than a person entitled to the
property or right,
(b)The word signed means signed either
personally or by an agent duly authorised in this
behalf, and
(c)An application for the execution of a decree or
order shall not be deemed to be an application in
respect of any property or right

Features of the Section

(a) An admission or acknowledgement
(b)That such acknowledgement must be
in respect of a liability in respect of a
property or right
(c)That it must be made before the
expiry of the period of limitation, and
(d)That it should be in writing and signed
by the party against whom such
property or right is claimed

Essentials
(1)It is necessary that an acknowledgment should
be in writing
(2)The section requires that acknowledgment must
be signed, otherwise it is no acknowledgement
in the eyes of law. However, it may be signed
either personally by the person who makes it or
his agent duly authorised in this behalf
(3)Acknowledgement as stated is Section 18 of the
Act merely renews the debt, it does not create a
new right of action

Cont......
(1)It is mere acknowledgement of the liability in
respect of the right
(2)It need not be accompanied by a promise to pay
either expressly or even by implication
(3)It must relate to a present subsisting liability
though the exact nature or the specific character
of the said liability may not be indicated in words
(4)It must indicate the existence of Jural relationship
between the parties
(5)The intention of the acknowledgement can be
inferred from the nature of admission, it need not
be expressed in words