Jurisdiction of the Courts and Res Judicata Section 9: - This section gives jurisdiction to try all suits of a civil

nature excepting those which are expressly or impliedly barred by any other law. [A 1969 SC 439] - The jurisdiction of civil court is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law. This is the purpose of Sec. 9. [AIR 1969 SC 78] - Consent a failure to object cannot give jurisdiction where there is inherent want of jurisdiction. [AIR 1954 SC 340] - When concurrent jurisdiction is vested in two courts, objection to jurisdiction can be waived by a party. - But where two courts or more have under the code jurisdiction to try a suit or proceeding an agreement between the parties that dispute between them should be tried by one of such courts would be valid being not contrary to public policy and to section 28 of Contract Act. [A 1971 SC 740] - Civil court has inherent power to decide the question of its own jurisdiction although as a result of its enquiry it may turn out that it has no jurisdiction over the suit. [1953 SCR 185] - When civil court has no jurisdiction over subject-matter of a suit it cannot decide any question on merits, it can simply decide question of jurisdiction and order return of plaint for presentation to proper court. [A 1956 SC 388] - Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil court, for they do not deal with legal rights of parties. But accepting this undoubted legal position the legislature has added Explanation 1 to the section which implies two things, viz., (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to religious rites or ceremonies and it implies further that questions as to religious rites or ceremonies cannot independently of such a right form the subject matter of a civil suit. [A 1961 SC 1720]

- Explanation II only clarifies the position further by saying that in order to maintain a suit it is immaterial that an office as referred to in Explanation I carries any fees or not or is attached to a particular spot or not. Court - In order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the trapping of a judicial tribunal, power to give a decision or a definite judgement, which has finality and authoritativeness, which are essential tests of a judicial pronouncement. [AIR 2000 SC 2023] Exclusion of Civil Courts Jurisdiction: -A exclusion of jurisdiction of civil court is not to be readily inferred. [A 1969 SC 78] - The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by necessary implication excluded. The rule of construction being that every presumption would be made in favour of existence of a right and remedy in a democratic set-up governed by rule of law and jurisdiction of the civil courts is assumed. The exclusion would, therefore, normally be an exception. [AIR (1997) 5 SCC 460] - Question relating to disputed claims of parties for title to an immovable property can be decided only by the competent civil court, in the absence of machinery in the special enactment to determine disputes relating to title between two rival claimants, the jurisdiction of the civil court is not excluded. [(2000) 5 SCC 652] - Statutes ousting jurisdiction must be strictly construed. [A 1966 SC 1718] - In case of doubt as to jurisdiction, court must lean towards assumption of jurisdiction. [A 1955 SC 576] - The Civil Court does not have jurisdiction to decide matters which are required to be dealt with by the Tribunal created under Statute. [(2002) 4 SCC 481]

:Seven proposition regarding exclusion of jurisdiction: - The following seven propositions of law regarding exclusion of jurisdiction of civil court have been laid down:(1) Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination becomes necessary to find out the intendment and the result of the inquiry may be decisive. In the later case it is necessary to see if the statute creates a special right or a liability and provides for its determination and further lays down that all questions about the said right or liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on revision or reference from the decision of the tribunal. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. (6) Question of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply. [A 1969 SC 78] Once the court finds that it has no jurisdiction to try the suit, it has no jurisdiction to decide the suit on merit or to decide question of the maintainability of the suit. [2002 (1) KLT 27]
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:Section 9 and Section 96 (Appeal): There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by a statute one may at ones peril bring a suit of ones choice. But a right of appeal is a creature of statute and an appeal for its maintainability must have clear authority of law. [A 1974 SC 1126] :Impliedly barred: - Implied exclusion of jurisdiction of civil court cannot be inferred from the mere fact of the existence of a statutory tribunal which may give the same relief as may be had in civil court. There must be something in the provisions of the statute constituting such tribunals for providing such proceeding to clearly rule out remedy of a suit in the civil court. [A 1968 A 369 F.B.] - Where a statutory enactment only creates rights/liabilities, but does not provided remedial forum, the door of the civil court are always open. [(1993) 3 SCC 161] - But where a complete machinery for redress is envisaged, civil courts jurisdiction is implied barred. [(1997) 5 SCC 536] :Jurisdiction of a court: - Jurisdiction is a wide sense means the extent of the power of the court to entertain suits, appeals and applications. In its technical sense jurisdiction means the extent of the authority of a court to administer justice not only with reference to the subject matter of the suit but also to the local and pecuniary limits of its jurisdiction. - Jurisdiction of a court can be classified into three categories, viz. 1) Jurisdiction over subject matter 2) Territorial jurisdiction 3) Pecuniary jurisdiction - The jurisdiction of a court may again be original or appellate. :Res-sub-Judice: :Stay of Suits: - Section 10 of the Code of Civil Procedure provides the rule with regard to stay of suits where matters are under consideration or pending adjudication by a court.
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- The object of this section is to prevent two courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. - It is to obviate two contradictory decrees being passed in respect of the same subject matter between the same parties that the following conditions must be fulfilled: 1) A previously instituted suit is pending in a court; 2) The matter in issue in the suit is also directly and substantially in issue in a previously instituted suit; 3) The previously instituted suit must be pending in the same court in which the subsequent suit is brought, or in any other court in India or in any court beyond the limits of India established or continued by the Central Government or in the Supreme Court; 4) The court in which the previous suit is pending has jurisdiction to grant the relief claimed in the subsequent suit; 5) The parties in the subsequent suit must be the same as in the previously instituted suit; and 6) The parties must be litigating under the same title in both the suits. Note - The term suit in this section includes appeal. - The pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action. (vide Explanation) - Section 10 is attracted when decision in previous suit operates as res judicata in subsequent suit. Section 10 merely lays down procedure and does not vest any substantive rights in the parties. [1977 AIHC 2530 (Del)] - Section 10 does not bar institution of the suit, it bar only trial. [2002 AIHC 1594 (P&H)] - In many cases it is necessary for a party even to institute a second suit in order to save the limitation. - Section 10 is not a bar of passing of interlocutory orders such as an order for consolidation of the later suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgement. The course of action which the court has to follow according to Section 10 is not to proceed with the trial of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the
5

provision of the word trial in section 10 is not used in its widest sense. [AIR 1998 SC 1952] : Consolidation of suits : - The words no court shall proceed with the trial of any suit were intended to bar the separate trial of any suit in which the matter in issue was also directly and substantially in issue in a previously instituted suit between the same parties. But these words do not apply to the simultaneous hearing of a later and earlier suit, after consolidation of the two section 10 was never intended to take away inherent power of the court to consolidate for the interests of justice. [A 1960 A 184] :Criminal Proceedings: - As a principle of law, it cannot be said that whenever a criminal case is instituted, then the civil suit on the same cause must be stayed. The court may be guided by attending circumstances. [AIR 1998 MP 191] :Res judicata: - The doctrine of res judicata was recognized in Hindu Jurisprudence [20 CWN 738] - Section 11 contains the rule of conclusiveness of the judgement which is based partly on the maxim Interest republicae ut sit finis litium (it concerns the state that there be an end to law suits) and partly on the maxim Nemo debet bis vexari pro uno at eadem cause (no man should be vexed twice over the same cause). [Vide Section 40 IE Act and Section 300 Cr.P.C.] - The maxim looks to the interest of the litigant, who should be protected from a vexatious multiplicity of suits, for, otherwise a man possessed of wealth and capacity to fight may overcome his adversary by constant dread to litigation. - The second maxim is based on the ground of public policy that there should be an end to litigation. - Judicial decisions must be accepted as correct, for, otherwise of suits were allowed to be filed endlessly for the same cause of action it will be impossible for existing courts to deal with the overgrowing number of suits. Unlimited or perpetual litigation disturbs the peace of the society and leads to disorder and confusion.
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:Necessary conditions: - The following conditions must be satisfied to constitute a bar of res judicata: 1) The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue either actually or constrictively, in the former suit. In order that this condition may be fulfilled it must have alleged by one party and either denied or admitted expressly or by necessary implication by the other. It is, however, not necessary that a separate issue should have been raised upon it. It is enough if the matter was in issue in substance in the former suit as also in the subsequent suit. 1. It is only those matters which are directly and substantially in issue that constitute res judicata and not matters which are in issue only collaterally or incidentally. 2. The second essential condition to constitute the bar of res judicata is that the former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Res judicata not only affects the parties to the suit, but also his privies, i.e. persons claiming under them. 3. The third essential condition to constitute bar of res judicata is that the parties must have litigated under the same title in the former suit. The expression same title means in the same capacity. Thus a suit brought by a person to recover possession from a stranger a math property claiming it as fees of the deceased Mahunt is no bar to a suit by him as manager of the math if the first suit is dismissed on his failure to produce the succession certificate, for the two suits arise under different capacities. 4. The fourth condition is that the court where decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised. In its true conception a decree in a previous suit could not be pleaded as res judicata in a subsequent suit unless the judge by whom it was made has jurisdiction to try and decided not only the particular matter in issue in the former suit but also the subsequent suit itself in which the issue is subsequently raised. 5. The last condition is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. The section requires that there should be a final decision on which the court has exercised its judicial mind. It is necessary that the decision in the former suit must have been on merits.

- The doctrine of res judicata or constructive res judicata predominantly is a principle of equity, good conscience and justice. It would neither be equitable nor fair nor in accordance with the principles of natural justice that the issue concluded earlier ought to be permitted to be raised later in a different proceeding. [AIR 2000 SC 3335] - Section 11 operated against both the parties to a suit and not against the defendants alone. [AIR 1998 Mad 218] - The basic principle of the rule of res judicata is that the cause of action for the second suit being merged in the judgement of the first, it does not any more survive. Res judicata is sometimes treated as estoppel by judgement. The distinction between the two is that res judicata ousts the jurisdiction of the court, while estoppel is not a rule of substantive law in the sense that it does not declare any immediate relief or claim. It is a rule of evidence. [36 B 214] - Section 11 is mandatory. Its principle, however, is modified by section 44 Evidence Act and one of the parties to the former suit can only avoid res judicata by proving that the judgement was obtained by fraud or collusion or passed by a court without jurisdiction. [41 CWN 267] - Principles of res-judicata cannot be allowed to defeat the provisions of a statute which takes away the jurisdiction of a court and a party is not estopped from raising the question or such jurisdiction in subsequent proceeding. [A 1965 SC 338] [Vide Section 21] - When, however, the court does not suffer from any inherent lack of jurisdiction, if no objection is raised to the jurisdiction of the court passing the decree the defendant cannot challenge the validity of the decree in a subsequent proceeding by the principles of constructive res judicata. [A 1953 SC 53] - A decision by a court without jurisdiction is a nullity and it can have no effect either as estoppel or res judicata. [Vide A 1971 SC 2355] :Matter in issue and subject-matter of the suit: - The matter in issue and not the subject-matter of the suit forms the essential part of res-judicata. The subject matter of the two suits may be different, the object of the suits, the reliefs asked and the causes of action

may also be different; but if the matter in issue in them is identical (i.e., if the same title had been litigated before), res judicata will apply. [Vide A 1953 SC 33] :Former suit: - Explanation I introduced in the Code of 1908 clarifies the meaning of former suit. The expression former suit denotes a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. The explanation is merely declaratory of the law. [A 1963 SC 1] - The expression former suit according to Explanation I makes it clear that, if a decision given before the institution of the proceeding sought to be barred by res judicata, is allowed to become final or becomes final by operation of law, or bar of res judicata would emerge. Question of bar of res judicata does not depend on the existence of right of appeal against the two decisions. [A 1977 SC 168] :Directly and substantially in issue: - The words used in Section 11 CPC are directly and substantially in issue. If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. If a matter was only collaterally or incidentally in issue and decided in a earlier proceeding, the finding therein would not ordinarily be res judicata in a later proceeding where the matter is directly and substantially in issue. [AIR 2000 SC 1238] - A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the later is the principal issue. The expression collaterally or incidentally in issue implies that there is another matter which is directly and substantially in issue. [AIR 2000 SC 1238] - It is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in issue directly and substantially, and a matter cannot be said to be directly and substantially in issue in a suit unless it was alleged by one party and denied or admitted either expressly or by necessary implication by the other. [A 1976 SC 1645]

:Constructive Res-judicata: - Any matter which might and ought to have been made a ground of attack or defence in the former suit shall be deemed to have been directly and substantially in issue in that suit (see Explanation 4). This is known as constructive res judicata. For the application of the principle of res judicata it is not necessary that the subject-matter of both suits should be the same; but that the matter in question is directly and substantially in issue in both suits. [2 CLJ 540] - As regards the application of the rule of constructive res judicata in Explanation 4 the following points should be noted: (1) No distinction has been made between a claim or defence actually made or which might or ought to have been made. By fiction of law the latter also is deemed to have been directly and substantially in issue in the former suit. (2) The words directly and substantially in issue have reference to both the suit and to an issue in the suit. (3) As Explanation 4 warrants the assumption that a matter which might and ought to have been made a ground of defence or attack in the former suit is to be deemed to have been directly and substantially in issue in such suit, it must also be assumed at the same time that such matter is to be deemed to have been heard and finally decided in the suit. No express finding (on a matter which might and ought to have been raised in the former suit) is necessary or possible as no decision by court can be expected on points not specifically raised before it. [Vide 20 A 110] (4) The word might presupposes that the party affected had knowledge of the ground of attack or defence at the time of the previous suit. The question whether a party had at that time knowledge or means of knowledge of the matter relied on in the subsequent suit is of great importance in the application of the rule. [42 CWN 560] (5) A party is bound to bring forward in the previous suit all the grounds of attack or defence that is available and possible for him according to this knowledge then. - Although explanation 4 does not say in express terms that such a matter shall also be deemed to have been heard and finally decided unless such be its meaning there could be no purpose in introducing the explanation at all. A matter which is in the issue only constructively, could not in the very nature of things, have been actually heard and decided. So where the
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question of jurisdiction depends upon the existence of a fact and a party to whom it was open to prove that fact does not do so, he is thereafter prevented by constructive res judicata from agitating the same. [A 1961 C 422] :Same parties or between parties under whom they or any of them claim: - In order that a person be bound by res judicata it must be shown that he was in some way a party to the suit, as a judgement binds only parties and privies. A party claiming under a party is known as privy. The ground of privity is property and not personal relation. [8 A 324] :Litigating under the same title: - The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases. [A 1953 SC 33] :Explanation 8: Effect of: [Note] Insertion of explanation 8 by 1976 Amendment Act has widened the scope of section 11, as the limitation that both the courts should be also of concurrent pecuniary jurisdiction for a decision on an issue in a previously decided suit to be res judicata in subsequent suit has been removed. Thus, before the amendment in many cases when the matter directly and substantially in issue had been tried between the parties in the earlier court not competent to try the subsequent suit having regard to its pecuniary jurisdiction it had to be tried again. This was rather anomalous in view of the principles underlying res judicata, and this anomaly has been removed by this amendment. - The expression Court of limited jurisdiction in Explanation VIII is wide enough to include a court whose jurisdiction is subject to pecuniary limitation and other cognate expressions of analogous merits. [AIR 1994 SC 152]

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:Heard and finally decided: - The bar under Section 11 of CPC applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means on the matter or issue in question there has been all application of the judicial mind and a final adjudication mode. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground like misjoinder, that cannot operate as res judicata. [Vide AIR 1996 SC 2367] :Ex parte Decision and Res judicata: - An ex parte decree can operate as res judicata because an ex parte decree is a decree on merits. [AIR 1992 Gau 72] - When the defendant remained absent in the earlier suit despite service of summons he cannot be permitted to say that no opportunity of hearing was given to him in earlier suit and hence the decision would not be binding on him. [1999 AIHC 268 (Guj)] - A decree even if ex parte will operate as res judicata in respect of all grounds of defence against the actual claim in the suit as also all matters inconsistent with such claim which might and ought to have been raised. [58 CWN 819] - In the absence of fraud or irregularity, a decree obtained ex parte is binding for all purposes as a contested decree. [20 CWN 48] :Consent or Compromise Decree: - A compromise decree or order does not operate as res judicata because the same is merely the record of a contract between the parties to a suit to which is super added the seal of the court and the court does not decide anything. [AIR 2002 Del 142] - A judgement by consent is as effective as estoppel between the parties as a judgement whereby the court exercises its mind on a contested case. [A 1956 SC 346]

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:Place of suing: :Section 15: - Competent means having jurisdiction to try. - Jurisdiction has reference to: (a) subject matter; (b) parties; (c) particular question which calls for decision and (d) pecuniary value. - Obviously competency in this section refers to pecuniary jurisdiction. - The section is a rule of procedure and not of jurisdiction and it does not, therefore, oust the jurisdiction of the courts of higher grades who have concurrent jurisdiction in the matter. - The object is that the court of the higher grade shall not be overcrowded with suits. [A 1944 A 1] - The institution in a court of higher grade, of a suit, which ought to have been instituted in a court of lower grade is only all irregularity in procedure and does not affect the jurisdiction of the court. [1997 AIHC 1549 (Raj)]. :Section 16: - Section 16 is most important; sections 17 25 enlarge the scope of section 16. :Proviso: - The proviso is based on the maxim equity acts in personam. - Under the proviso even though the immovable property is not situated within the jurisdiction of a court, a suit in respect of compensation to the immovable property may, at the option of the plaintiff, be instituted in that court if the person of the defendant or his personal property is within its jurisdiction. Clause (e) refer to torts affecting immovable property e.g. trespass etc. :Section 17: - The object of this section is to prevent multiplicity of suit. - The properties may be in different districts but the plaintiff may bring one suit and select the forum.

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:Section 19: - This section applies to suits for wrong done to the person or the movable property of the claimant, while 16 (e) is applicable to torts affecting immovable property. - Under this section the suit can be instituted at the place where the wrong was done or at the place where defendant resides or carries on business. - Though section 19 overlaps the provisions of section 20 to some extent, it is not in the nature of an exception to section 20. It is only an extension of section 20. - Section 19 elucidates that the place where the wrong is done to the person or movable property is the place where cause of action arises within section 20 (c). :Section 20: - This is the general section covering all personal actions (i.e. relating to person or movable property) and as the opening words state, it is subject to the provisions of section 16 19. - Such personal actions shall be instituted in a court within whose local jurisdiction (a) the defendant actually resides or carries on business etc., or (b) any of the defendants (where there are more than one) actually resides etc., and either the leave of the court has been taken or the other defendants acquiesce, or (c) the cause of action or a part of it arises. - The explanation points out that an incorporated company can be sued at its principal place of business, or if the cause of action arises at some other place and it has a subordinate place of business there, at that place also. - Parties cannot by agreement confer jurisdiction on court which it does not possess under the code. [A 1971 SC 740] - Where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therewith, if the parties to the contract agreed to be jurisdiction in one such court to try the dispute which might arise as between themselves, the agreement would be valid. This cannot be understood as parties contracting against the statute. [AIR 1995 SC 1766] - Where the hire purchase agreement between the parties provided that in the event of dispute between the parties, suit can be filed at a particular place,
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suit cannot be filed at any other place. The parties are bound by agreement and it is not open to the parties to choose a different jurisdiction. [AIR 2002 Ori 29] - Agreement between parties with regard to exclusion of jurisdiction of a court is binding on parties thereto but a third party is not bound unless is shown that he is made aware of its implications. [A 1985 AP 387] - Where a person the purchaser of goods did not sign any order form to accept that in case of dispute the jurisdiction will rest only in courts in Baroda the seller cannot take advantage of the condition printed at the back of the invoices and contend that only the courts at Baroda will have jurisdiction. [AIR 1994 Del 226] - Where the contract only provided that the court in Neyveli shall have jurisdiction over all the matters and it did not exclude the jurisdiction of other courts by using the words alone, only, exclusive, the jurisdiction of other courts to try the matter is not excluded. [AIR 1992 Mad 332] :Actually and voluntarily resides: - In clauses (a) and (b) the residence referred to is at the time of the commencement of the suit. - Actually indicates that constructive residence will not do. - Voluntarily implies that compulsory residence is excluded. - Voluntarily resides does not refer to legal entity but to natural person. - Voluntarily resides or personally works for gain cannot be appropriately applied to Government. [A 1963 SC 168] - A suit can be filed against Government where the business is carried on. [A 1979 MP 96] :Carries on Business: - The Government can carry on business whether it yields profit or loss. [A 1963 SC 168] - Where the state carries on business, the suit can be instituted at the principle place of general superintendence and management.

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[Note: - Special provision in Section 80 Railways Act as amended by Act 39 of 1961 excludes operation of section 20 C.P.C. and suits for compensation against railways can only be instituted in a court having jurisdiction over the place in which the goods were delivered for carriage or over the place in which destination station lies or the loss or damage occurred. [A 1981 D 135] - Receipt by a priest of offerings by devotees to a shrine is not carrying on business. The phrase is a very elastic one and is almost in capable of definition. The court must in each case look to the particular circumstances. It is intended to relate to business in which a man might contract debts, and ought to be liable to be sued by persons who had business transactions with him. [18 B 294 PC] - Business has a very wide impact and would compose almost anything which is an occupation or duty which requires attention. [A 1983 D 201] - Business may be carried on through an agency or manager or servants also. [A 1922 A 367] :Personally work for gain: - A man living outside jurisdiction but coming to work for gain e.g., a pleader, is working for gain. :Cause of action, wholly or in part arises: - The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the Court. Every fact which is necessary to be proved, as distinguishable from every piece of evidence which is necessary to prove each fact, comprises in cause of action. It has to be left to be determined in each individual case as to where the cause of action arises. [AIR 2001 SC 416]

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- In legal parlance the expression cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain all action in a court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person. [2000 (7) SCC 640] - The expression cause of action means that bundle of facts which the petitioner must prove in order to entitle him to a judgement in his favour by the court. Whether any part of cause of action has accrued within the jurisdiction of a court would depend upon the facts and circumstances of the given case. [1996 (1) RLW 413] - Each and every fact pleaded by the petitioner in their application would not give rise to a cause of action within the courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. [AIR 2002 SC 126] - Cause of action must be antecedent to the institution of the suit. Future expectation of performance of contract does not constitute part of cause of action. - In the case of a contract by tender when the offeror and offeree are at different places and the offer and acceptance are made by exchange of letters, the contract is complete when the letter of acceptance was posted. The place where the letter was of acceptance was posted will have jurisdiction to try the said arising out of the contract. [AIR 1996 Del 92] - In a suit for damages for wrongful termination of service, where terminating service was posted by the principal in Calcutta and received by the Agent in Madras, at least part of the cause of action arose in Madras. [A 1963 M 30] :Explanation: - This includes not only statutory corporation but also company registered under the Companies Act. [A 1971 SC 740] - When a corporation has a branch office at any place it shall be deemed to carry on its business there irrespective of the nature of the work that is actually carried on there. [47 CWN 292]
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- If no part of the cause of action arises at a branch office of the Corporation, suit is not maintainable in the court of the place where the branch office is located. [A 1961 K 50] :Section 21: - Old section 21 has been renumbered as sub section (1) and (2) and (3) have been added by CPC (Amendment) Act 104 of 1976. - Sub section (2) makes the principle of sub section (1) [Old Section 21], which applies to territorial jurisdiction, applicable also to the pecuniary jurisdiction of a court. - Sub section (3) makes similar express provisions as to the territorial competence of the court executing a decree. - Section 21 (2) has placed want of pecuniary jurisdiction in the same footing as absence of territorial jurisdiction in section 21 (1). - It should be noted that there is a difference between inherent lack of jurisdiction which goes to the root of jurisdiction or competence of a court to try a case and a mere lack of territorial or pecuniary jurisdiction objection regarding which has been held as merely technical and not going to the root of the jurisdiction of the court to try a case. And it is also well settled that such objections can be waived by a party and is capable of being cured by acquiescence, order of court or in other respects as provided by law and a party subsequently be precluded from taking them, though consent and waiver cannot cure inherent lack of jurisdiction. [Vide A 1966 SC 634] - Where objection as to pecuniary jurisdiction is not raised earlier, there is waiver of the right to raise such objection. [AIHC 5330 (J&K)] - Objections relating to pecuniary or territorial jurisdiction should be raised at the earliest and if the parties omit to plead and raise the objection, at a later stage, unsuccessful party would be precluded to raise lack of jurisdiction. [AIR 1996 SC 1567] - In the absence of failure of justice, lack of territorial or pecuniary jurisdiction is a mere irregularity which does not make the decree nullity. Section 21 (2) is a statutory recognition of the principle that defect as to pecuniary jurisdiction may be waived by the defendant. [AIR 1992 Gau 91]

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- What is relevant is whether the court had the power to grant the relief asked for in the application. It cannot be disputed that if it is held that the court had competence to pronounce on the issue presented for its decision then the fact that it decided that issue illegally or incorrectly is wholly beside the point. [A 1969 SC 823] - Existence of jurisdiction should not be confused with exercise of jurisdiction. When there is jurisdiction to decide, the decision of all question is the cause is an exercise of jurisdiction; and a court has jurisdiction to decided wrong as well as right, and if decides wrong, the only way to set it right is to take the court prescribed by law, otherwise however wrong, it stands. [A 1940 P 406]. - The objection as to want of absolute jurisdiction can be raised at any stage of the proceedings or in appeal or second appeal or revision or after remand in second appeal, if it does not depend upon disputed facts. [23 CWN 1033] - These principles do not, however, apply to decrees in matrimonial causes passed in contravention of mandatory provisions of law as they operate as judgements in rem as distinguished from other civil causes which operate as judgements in personam. [A 1971 A 201] :Conditions for the application of the Section are: - For applicability of section 21 the Supreme Court laid down the three essentials: (1) The objection was taken in the court of first instance. (2) It was taken at the earliest possible opportunity and in cases where issues, at or before such settlement. (3) There has been a consequent failure of judgement. [AIR 1981 SC 1683] :Unless there has been failure of justice: - Objection as to pecuniary jurisdiction was raised in the trial court and also in the appellate court. It was held that even if this objection was raised at the earliest opportunity in the trial court, unless it is shown in the appellate court that on account of trial by the wrong court, there has been failure of justice, the appellate court cannot interfere in the findings of the trial court on the ground of the jurisdiction of the court. [AIR 1996 Mad 224]
19

:Institution of Suits: - The old section 26 prior to CPC (Amendment) Act, 1999 has been renumbered as sub section (1) and sub section (2) inserted by the amendment with effect from 1.7.2002. - The sub section (2) provides that in every plaint, facts shall be proved by affidavit. - This amendment has set at rest the different rules made by different High Courts regarding presentation of plaint and made a uniform rule of filing affidavit to prove facts in every plaint. - The amending Act stipulates that the provisions of section 26 (2) C.P. Code shall not apply to or affect any suit pending immediately before the commencement of this amendment; and every such suit shall be tried as if this amendment had not come into force. - After the amendment a plaint shall not be entertained without an affidavit in proof of facts stated in the plaint. - The affidavit should contain the genuineness of the claim made by the plaintiff and the document on which he relies upon to establish his claim. - If all the things are stated in the affidavit there may not be any need to have oral evidence. - The suit may be decreed on the basis of the averments made in the affidavits unless they are contradicted by the opposite party. :SUIT: Definition - A suit has not been defined. - In terms of section 26 it can be taken to be a civil proceeding instituted by the presentation of a plaint or in any such other manner prescribed: [A 1981 P&H 354] - The section shows that the legislature did contemplate the institution of a suit other than by the presentation of a plaint. In the case of an application for leave to sue as pamper the date of the application is the date of the institution of the suit. [A 1969 G 308] :Parties to suits: :Order I: - Order 1 Rule 1 and Order 1 Rule 3 are at practically the same terms. - Both the rules deal with joinder of parties and also to a certain extent with joinder of causes of action and they should be read with Order 1 Rule 4. - The test of joinder of plaintiffs now is not identity of cause of action but the identity of the act or transaction out of which the right to relief arises.
20

- The position is that plaintiffs having causes of action may join together in one suit provided the right to relief arises out of the same act or transaction. - The rule, therefore, enables several plaintiffs having separate causes of action to join in one suit subject to two conditions: viz. (a) the right to relief which is alleged to exist must arise out of the same act or transaction; and (b) if separate suits were brought by the plaintiffs any common question of law or fact would arise, i.e., there must be a common question of law or fact. - Although all persons coming within Rule 1 may join as plaintiffs, the court under Rule 2 has the power to order separate trials when any joinder embarrasses the trial. - It is not necessary that all the interested parties should be before the court as plaintiffs some of them may be arrayed as the defendants also, if they refused to join as plaintiffs. [A 1988 A 12] :Jointly: - Persons who are jointly entitled to the same relief should be made plaintiffs in the same suit e.g., executors, co-trustees, joint owners of property, joint promises etc. If any one is not willing to join as plaintiff, he should be impleaded as a defendant [Or. 1 Rule 10 (2)]. [A 1925 L 504] - Order 1 Rule 1 applies not only to joinder of parties but also to causes of action and Or. 2 Rule 3 is subject to this provision. Hence if a suit conforms to the requirement of Order 1 Rule 1, suit is not bad for misjoinder of parties and causes of action. [A 1975 Raj 23] :Order 1 Rule 2: - This is a sort of proviso to Rule 1 giving wide powers to the court to protect the defendant against being prejudiced by the joinder of causes of action which cannot be conveniently tried together. - When it appears to the court that a single suit brought by several plaintiffs in respect of the same transaction may embarrass or delay the trial on account of the causes of action being distinct, the court instead of dismissing the suit may put the plaintiffs to their election i.e. ask them to decide which of them should proceed with the suit or order separate trial. [34 C 662]

21

- Under Order 1 rules 2 and 3A and Order 2 Rules 3 and 6 the court may (1) order separate trials; (2) confine the action to some of the causes of action and exceed the others; (3) order the plaintiff or plaintiffs to elect which cause of action shall be provided with, or which plaintiff should proceed and which struck out, (4) prevent a defendant from being embarrassed or put to expense by being required to attend proceedings in which he has no interest; (5) make such other order as may be expedient. (See Supreme Court practice, 1973 Vol. 1 p. 170). :Order 1 Rule 3: - Rule 3 which deals with joinder of defendants is exactly in the same terms as rule 1 and is subject to the same conditions as the joinder of plaintiffs viz (1) the relief sought against the several defendants must arise out of the same acts or transactions, and (2) there must arise a common question of law or fact against the defendants, although the causes of action against them may be different in form. Both these conditions must exist together. - The power to join several defendants in the same suit to the purpose of claiming relief against them severally or in the alternative is not confined to cases in which the causes of action as alleged against the defendants are exactly identical. In order that a party may be added as a defendant in the suit, he should have a legal interest not as distinguished from an equitable interest, but an interest which the law recognises. A person who would be only indirectly or commercially affected by the result of the litigation, cannot be impleaded as a party. [A 1994 HP 90] - Order 1 Rule 3 and Order 2 Rule 3, if read together indicate that the question of joinder of parties also involves the joinder of cause of action. [AIR 1999 SC 1341] - In order to determine whether a suit satisfies the conditions in this rule the facts are: (1) Could the right to relief against the defendants be said to be in respect of or arising out of the same act or transaction or series of acts or transactions? and (2) Would any common question of law or fact arise if separate suits were brought against the different defendants? [51 CWN 295] - When relief is claimed against several persons severally or in the alternative, the plaintiff has the option to join them all as defendants. But when relief is claimed against several persons jointly, all of them must be
22

impleaded as defendants, Order 1 Rule 3 should be read with Order 1 Rule 4 (b) and Rule 5. :Order 1 Rule 3A: - Rule 3A inserted by CPC (Amendment) Act 104 is intended to empower the court to order separate trials where joinder of defendants may embarrass or delay the trial. - The rule envisages a direction from the court for separate trials where it appears to the court that the joinder of defendants in the same suit may embarrass or delay the trial or is otherwise inconvenient. [A 1990 HP 10] :Order 1 Rule 8: - This rule applies only to representative suits. - To avoid conflicting decisions and multiplicity of proceedings under this rule when there are numerous persons having the same interest in a suit, one or more of them may, with the permission of the court, sue or be sued or defend in such suit on behalf also of others. - Order 1 Rule 8 formulates an exception to the general principle that all persons interested in a suit shall be parties thereto. It is an enabling rule of convenience prescribing the conditions upon which such persons when not made parties to a suit may still be bound by the proceedings therein. [A 1973 MP 216] - Conditions necessary to bring a suit within this rule are, (i) numerous parties, (ii) same interest, (iii) permission of court, (iv) notice - On such permission being given it becomes imperative duty of the court to direct notice to be given to the absent parties in such of the ways prescribed as the court in each case may require, while liberty is reserved to any represented person to apply to be made a party to the suit. [A 1933 PC 183] (iii) :Same interest: - Same interest means a common interest and a grievance. [A 1939 M 751]

23

- Same interest does not mean the same beneficial proprietary right in the subject matter of suit. It is distinguishable from same transaction. - It has been made clear beyond all doubts by the insertion of Explanation by 1976 Amendment Act that it is not necessary that the party instituting and the parties represented should have the same cause of action; what is more important is a community of interest. - Same interest implies joint and inseparable interest even if arising from same act or transaction. [A 1980 J&K 50] (i) :Numerous persons: - Under this rule the plaintiff cannot sue on behalf of the public generally, but on behalf of a limited and a clearly defined class with which he has a common interest and a common right. - The body of persons represented must be sufficiently definite. [A 1948 PC 66] - Numerous does not mean an ascertained or ascertainable body of persons. The suit may be on behalf of a defined class of the general public though that class may be composed of a more or less in definite number of person e.g. community or sect. [24 CWN 206] (iii) :With the permission of the court: - Permission under Order 1 Rule 8 can be granted at any subsequent stage of the suit. When there was averment in the prayer portion of the plaint that the suit was being instituted for the benefit of the public in general, permission was granted during the pendency of the suit. [2000 AIHC 3410 (Kant)] - The provision of Order 1 Rule 8 have to be strictly complied with. More so, if it is a case of an unregistered society, no one member case sue alone if he has not filed the suit on his own behalf but on behalf of other members. The proper course is to obtain permission before the suit is instituted, but if it is not done, the rule does not forbid leave being granted afterwards. Permission under this rule may be granted even after the institution of the suit. [Vide 97 CWN 614]

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(iv) :Notice: - Issue of notice of suit to all by personal service or by public advertisement is not mere formality but sine qua non under Order 1 Rule 8. [A 1986 P&H 51] - The notice must disclose the nature of the suit as well as the reliefs claimed in order to enable the person interested to get themselves impleaded as parties to the suit either to support the cause or to oppose it. The notice must also state as to who are the persons who have been selected to represent the cause. [A 1987 Cri 270] ::Order 1: Rule 9:: - This rule makes it clear that misjoinder or non joinder of parties is not fatal to a suit provided the suit is of such a nature that the rights and interests of parties before the court can be effectively disposed of. - The rule is a rule of procedure and has no application where, under the substantive law, the rights and interests of the parties actually before the court cannot be determined and an effective decree cannot be passed, such as in a suit for partition all the co sharers and in partnership account suit all the partners, and in an ejectment suit all the landlords and tenants are necessary parties. - In such a suit if the plaintiff, in spite of the objection raised, insists on proceeding with the suit without joining all the necessary parties who are absent, the suit may be dismissed. - Rule 9 does not apply when a cause of action arises against a number of persons jointly, because when one of such persons is eliminated, no cause of action subsists against some of them. :Necessary Party & Proper Party: - This rule does not do away with the necessity to bring a necessary party as this has been also emphasized by the proviso to the rule. - There is an essential distinction between necessary party and proper party to a suit. Necessary parties are parties whose presence is essential and in whose absence no effective decree can at all be passed. - Though no suit shall be defeated for misjoinder or non-joinder of parties there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to the suit the infirmity of the suit is bound to be fatal. Even in such cases the court can under
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Order 1 Rule 10 (2) direct necessary parties to be joined but all this can and should be done at the stage of trial and that too without prejudice to the said partys plea of limitation. [A 1965 SC 271] - Necessary parties are parties who ought to have been joined within Order 1 Rule 10 (2). - Proper parties are parties whose presence is a matter of convenience to enable the court to adjudicate more effectively completely. [Vide A 1926 M 927] - If in a suit a necessary party is not added the suit shall be dismissed not for the reasons of non-joinder or misjoinder of the parties but because no effective order can be passed and no relief can be granted to the parties on record. [AIR 1994 Gau 110] - Where no relief is claimed against a person, nor any decree is passed against a person, such a person is not a necessary party to the suit. [2000 AIHC 2477 (Mad)] :Order 1 Rule 10: - The object of the rule is to enable the court at any stage of the suit to add a person as a party when it is unable effectually and completely to adjudicate upon and settle all the questions involved in the suit in the absence of that person. - With that object it can also strike out the unnecessary party. - The principle of Rule 10 is to save honest and bonafide plaintiffs from being non suited on a technical ground. There are however limitations on the power: (i) institution should have been under genuine instance, (ii) that a valuable right acquired by the defendants should not be defeated. [A 1955 AP 494] - Avoidance of multiplicity of proceedings is also one of the objects of Order 1 Rule 10 CPC. [(1999) 2 SCC 577] - Only a prima facie satisfaction is required for deciding that the impleadment of a party was inoperative for the proper adjudication of the suit. [(2002) 2 CCC 116 (Mad)] - When impleadment of a third party would mean denovotrial, third party should not be impleaded.
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[AIR 1977 SCC 257] - Court has complete power to correct wrong name or misdescription of parties. [A 1940 C 153] - When allowing amendment the court may impose such terms as to costs as it thinks just. : Sub Rule (2) : [Necessary party] - Primary meaning of a party is a litigant who has a part to play in the proceedings. [A 1983 NOC 128 (c)] - A necessary party is one without whom no order can be effectively made. A proper party is one whose presence is necessary for a complete and final decision of question involved in the proceedings. [1996(7) Supreme 210] - Where impleadment of a person would change the complexion of the litigation his/her presence is neither necessary for the decision of the question involved in the proceeding nor to enable the court effectively and completely to adjudicate upon and settle the question involved in the case, such a person is neither a necessary party nor a proper party. [(2002) 3 SCC 98] - The object of Rule 10 (2) is not to prevent multiplicity of actions though it may incidentally have that effect. But that is a desirable consequence of the rule rather than its main objective. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. [1992 (2) SCR 1] - The words ought to have been joined in sub rule (2) apparently have reference to necessary parties in the sense that the suit cannot be effectively disposed of without their presence on record. [A 1958 SC 886] - The general rule is that suit cannot be dismissed on the ground of nonjoinder of proper parties, but this rule does apply in case of nonjoinder of necessary parties. Where despite objection the plaintiff declines to add necessary party, the plaintiff cannot be allowed to
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rectify the error by applying for amendment in the appellate court. [2002 AIHC 360 (HP)] - The power under the sub-rule may be exercised at any stage of the proceeding subject to the law of limitation. The discretion given is wide, the object being to avoid multiplicity of suit and conflict of decisions. [A 1965 MP 275] - Order 1 Rule 10 (2) empowers the court to implead any person as a party suo motu since if the plaintiff is permitted as a rule to choose his opponents, he may leave out the real owner or interested person, implead a person of his own choice and get a collusive decree which would have become final when real owner comes to know about it which will create ugly situations. [A 1989 All 168] - Judicial Officers who have disposed of cases should not be arrayed as party in the cases. [AIR 1998 SC 976] - If a suit is not maintainable against one of the defendants it should be dismissed against him without rejecting the whole plaint. If, however, a suit becomes defective for non joinder of a defendant the suit has to be dismissed against other defendants also. [6 SCWN 1128] - A person may be added as a party-defendant to the suit though no relief may be claimed against him/her provided his/her presence is necessary for a complete and final decision on the question involved in the suit. Such a person is only a proper party as distinguished from a necessary party. [(1995) 1 Andh WR 8 (SC)] - When the court feels embarrassed by the presence of parties against whom it has no power to entertain suit or by pleadings relating to property over which it has no jurisdiction, it can strike out the defendants under Sub Rule (2) and the pleadings under Order 6 Rule 16. [A 1951 P 364] :Test to determine necessary party: - For determining the question who is a necessary party there are two tests: (i) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question, and

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(ii) it should not be possible to pass an effective decree in the absence of such party. The eventual interest of a party is the fruits of litigation cannot be held to be the true test of impleading a party. [A 1947 A 18 FB] :At any stage of the proceeding: - The court has power under Rule 10 (2) to add not only those persons who were necessary parties on the date of the suit but also persons who subsequently i.e. upto the date of final adjudication become necessary parties and whom the plaintiff omits to implead. [A 1974 A 422] - But a transferee from the defendant pendente lite is neither a necessary party. [A 1989 Orissa 148] :Sub Rule (5): Limitation: - Under Section 21 Limitation Act, an addition or substitution of a plaintiff or defendant the suit as regards him shall be deemed to have been instituted when he was so made a party. [A 1986 Orissa 62] - It would not be proper or legal to implead a person as a defendant in a suit against whom the claim has already become barred by limitation. [AIR 1995 All 19] - The addition of a necessary party after period of limitation will entail the dismissal of the whole suit. [A 1929 C 591] :Order 1 Rule 13: - Where objection as to non-joinder was not taken in the written statement, it must be held that the plea of non-joinder shall be deemed to have been waived. [2000 AIHC 3827] - It is the duty of the party to raise the objection in the written statement at the earliest point of time about the maintainability of the suit on the ground of not bringing on record the necessary or proper party in determining the issues involved in the matter. [AIR 1994 AP 72]

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- Objection regarding non-joinder of necessary party cannot be raised for the first time before the appellate court. [See also Explanation 4 to Section 11] :: Order 2 Rule 1: and : Order 2 Rule 2 :: - The Rule 1 should be read with Rule 2 which contains the penalty for not including the whole claim. - The object is that all matters in dispute between the parties relating to same transaction should be disposed of by the same suit. - The object of both rules 1 and 2 is to prevent multiplicity of suits. - The rule in Order 2 Rule 2 is founded on the principle that a person shall not be vexed twice for one and the same cause. [19 A 379 FB] - It is directed against two evils the splitting up of claims and splitting up of remedies. [See sub-rules (2) and (3)] - Rule 2 applies not only plaintiff in a suit, but also to a defendant who claims set off under Order 8 Rule 6. [A 1942 M 582] - The rule in Order 2 Rule 2 is subject to certain modifications as set out in Order 2 Rules 3, 4 and 5. - The plea of bar of Order 2 Rule 2 must be taken expressly; if not taken, the Court should not entertain and decide the plea suo motu. [(1999) 6 SCC 40] - In order to apply Rule 2 it should be found out (1) What was the cause of action in respect of which the claim was made in the previous suit; (2) What is the claim made in the present suit; (3) Whether the claim made in the present suit could have been made either wholly or in part in respect of the cause of action in the previous suit. [A 1942 C 407] - In order to make Order 2 Rule 2 applicable, the defendant must satisfy the following three conditions:(a) The previous and second suit must arise out of the same cause of action. (b) Both the suits must be between the same parties; and (c) The earlier suit must have been decided on merits. [AIR 2001 HP (1) (5)] - This rule does not apply to application for execution.
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- A decree-holder can file successive applications for execution of different reliefs given in the decree. [53 C 582] - A money decree cannot be allowed to be executed piece meal. :Sub-Rule (2) Portion of his claim: - Relinquishment of claim in order to bring it within the pecuniary jurisdiction of the Court should be made before the institution of the suit and not at any subsequent stage. [1997 AIHC 4120] :Leave of the Court: - The plaintiff can seek leave of the court under Sub Rule (3) of Rule 2 of Order II of the Code at any time before the date of decree in the first suit and the jurisdiction of the court is not ousted because the leave is not sought before the institution of the first suit. The court would grant leave provided the plaintiff is seeking leave for any relief omitted and not in respect of any portion of the claim which was omitted or intentionally relinquished at the time of the institution of the first suit. [1994 Mah LG 812] :Successive claim arising under the same obligation: - A claim in respect of all arrears of rent due at the time of the suit is a single cause of action. - If any portion of the rent which accrued due at the time of the suit is left out, a separate suit is barred. :Rule 3: :Joinder of causes of action: - The first part of sub-rule (1) relates to the case of a plaintiff uniting in one suit several causes of action against the same defendant or defendants jointly. - To enable the plaintiff to do so, the defendants must be jointly interested i.e. all the defendants must be jointly in respect of each and all the causes of action which are united. [23 C 821] - The second part of sub-rule (1) refers to the case of several plaintiffs uniting in one suit several causes of action in which they are jointly interested against the same defendant or defendants. - Under this part the right of two or more plaintiffs having several causes of action against one defendant or two or more defendants to
31

unite them in one suit depends on the consideration whether the several plaintiffs are jointly interested in the causes of action. - So if the plaintiffs are not jointly interested in each or all the causes of action, the suit will be bad for misjoinder of plaintiffs and causes of action. :Joinder of plaintiffs and causes of action: - Several plaintiffs deriving titles in respect of an entire property from different sources, may bring one suit against the defendants for its recovery. [22 C 833] - When suit property is purchased by different persons in different portions under separate deeds suit by all of them for eviction of tenant of the whole property is maintainable as the suit conforms to the requirement of Order 1 Rule 1 which also applies to the question of joinder of parties as also to the cause of action. [A 1936 C 650] :Consolidation of suits: - There is no specific provision in the code for consolidation of suits. It is under inherent powers suits are consolidated by the court. The whole object behind consolidation is to avoid multiplicity of proceedings, unnecessary delay and expenses. Where it appears that there is sufficient unity or similarity in the matter in issue in the suits, or that determination of the suits rests mainly on a common question, it is convenient to try them as analogous cases. Further, the question to be considered should also be as to whether or not the nonconsolidation of the two or more suits is likely to bad, apart from multiplicity of suits, to leaving the door open for conflicting decisions on the same issues which may be common to the two or more suits sought to be consolidated. The convenience of the parties and the expenses in the two suits are subsidiary to the more important consideration, viz. whether it will avoid multiplicity of suits and eliminate chances of conflicting decisions on the same point. [A 1983 G 189] :Order IV: - By CPC (Amendment) Act, 1999 (w.e.f. 1.7.2002) the words plaint to the court in sub-rule (1) have been substituted by the words plaint in duplicate to the Court.
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- The effect of amendment is that now the filing of plaint to the court in duplicate has been made mandatory. - The sub-rule (3) has been inserted by the above Amending Act. The effect of this amendment is that the plaint will not be deemed to be duly instituted unless it complies with the requirements as specified in sub rules (1) and (2) of Rule 1. - Any plaint to be filed shall be in duplicate and shall be accompanied by all the documents on which the plaintiff relies for support of his claim. - It is also to be accompanied by an affidavit starting the genuineness of the claim of the plaintiff and of the documents on which he relies. [Sec. 26 (2)] - The person verifying the plaint should also furnish an affidavit in support of his pleadings. [Order VI Rule 15(4)] - Even though the dictionary meaning of plaint is very wide, it has in legal phraseology come to acquire more limited meaning and that is a statement in writing of the cause of action in a suit. Every proceeding in a court is not commenced by a plaint. [A 1966 B 126] - Presenting does not mean sending by post. [A 1960 PU 302] - Date of presentation is date of institution. [62 C 1115] - When court is closed on the last day of limitation, it can be filed on the first reopening day. [See Sec. 5 of Limitation Act and Sec. 10 (1) of General Clauses Act, 1897] :Summons and Discovery: :Section 27: - The section has been amended by CPC (Amendment) Act, 1999 by insertion at the end of the section the words on such day not beyond thirty days from the date of the institution of the suit. - The object of the amendment is to fix time frame for sending summons to the defendants. It provides thirty days from the institution of suit, within which summons should be sent to defendants.

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:Section 30: - Section 30 (b) does not provide any time limit and in fact at any time an application may be filed to issue summons to a person whose attendance is required either to give evidence or to produce documents. [AIR 2001 Guj 222] :Section 32: - The antithesis that Sec. 32 draws between section 27 and section 30 is that all omission to appear in response to a summons under section 27 carries no penalty in the strict sense while disregard of summons under Section 30 may entail punishment. [A 1955 SC 425] - In order to maintain confidence of the litigants, a witness who is sought to be adduced before the court once the court, after being satisfied, issued summons for his attendance, the court should not stay its hand at the choice of the witness to attend or not to attend the court to give evidence. [AIR 1995 Raj 209] :Order V: - After substitution, by the Amendment Act of 1999, the sub-rule (1) provides that summons may be issued to the defendant to appear and assure the claim and also to file the written statement of his defence on such day within thirty days from the day of institution of the suit as may be specified therein. - The second proviso to the substituted sub-rule (1) further provides that where the defendant fails to file the written statement on the said day, he shall be allowed to file the same within thirty days for the date of service of summons. - The amendment also lays down that the defendant must be served with a copy of the plaint and the documents on which the plaintiff relies upon. These papers must accompany the summon. - The mode of service of summons is also indicated. The summons may be delivered by speed post, courier service, fax message or by electronic mode. The High Court may prescribe rules for service of summons. - When the defendant appears in court at the presentation of plaintiffs claim and admits the claim, no summons shall be issued to the defendant (1st proviso).
34

- In case the defendant is served with summons and fail to file the written statement on the day fixed by the court, the court shall permit him to file the written statement within thirty days from the date of service of summons on the defendant. *[Note - By 1999 Amendment, the period of thirty days was fixed for filing written statement by the defendant. - After the 2002 Amendment, the defendant is, now, to file written statement within thirty days from the date of service of summons, but such date can be extended upto ninety days by the court for reasons to be recorded. :Rule 5: - There is a presumption under section 27 of the General Clauses Act, 1897, that when a document is sent under registered cover and on that, there is an endorsement of refusal by addressee to accept, the notice must be presumed to have been served and service shall be deemed to be valid service unless it is rebutted by legal evidence. [AIR 1992 SC 1604] - Order 5 Rule 2, in mandatory terms provides that even summons since deleted by amendment of CPC shall be accompanied by a copy of the plaint [or, if so permitted, by a concise statement]. Accordingly, if the summons are not accompanied by a copy of the plaint, it cannot be said that there is due or valid service on the defendant and if there is no valid service, a decree on such defendant has to be set aside. [1995 MPLJ 105] :Rule 7: - After amendment by CPC (Amendment) Act, 1999 the provision reading as all documents or copies thereof specified in rule 1A of Order VIII is in line with the amended Order VIII Rule 1A which casts a duty on defendant to produce documents upon which relief is claimed or relied upon by him. - Order VIII Rule 1A requires the defendant to produce documents in his possession in the court and deliver the document or a copy thereof alongwith the written statement filed by him. - This rule further provides that in case a document or copy thereof is not filed with the written statement, it shall not be allowed to be tendered in evidence on behalf of defendant at the hearing of the suit.

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:Rule 9: & :9A: : Summons to be served by plaintiff - The Amendment Act, 1999 has substituted a new Rule 9 and also introduced Rule 9-A in Order V. - The new Rule 9 provides for delivery of summons to the plaintiff for service on the defendant by court controlled process simultaneously with the delivery of summons for service to the plaintiff in accordance with the new Rule 9. - While the new Rule 9 is completely new provision, the provision of the old Rule 9 have been incorporated, with necessary changes in Rule 9A. - By the new Rule 9: 1. It is provided that the summons may be served on the defendant by Registered post acknowledgement due, by speed post, by such courier service as may be approved by the High Court, by Fax message, by electronic mail service or by any other means as may be provided by the Rules made by the High Court in this behalf. 2. In addition to and simultaneously with the delivery of summons as provided in Rule 9, the court may also direct that summons be served on the defendant or his agent empowered to accept service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain. 3. Where the defendant or his agent refuses to take delivery of the postal article containing summons or refuses to accept summons sent by any of the modes as provided by Rule 9 (1), the summons shall be deemed to have been served on the defendant. 4. The plaintiff/or his agent is also required to send summons by any means as directed by the court within two days from the delivery of summons to the plaintiff by the court. 5. Rules 9 and 9A empowers the High Courts to approve a courier service for the purpose of service of summons and also empowers to make rules with regard to other means of service of summons. [:Note: - If a summons sent by registered post is returned with the endorsement refused it is prima facie that the addressee had an opportunity to accept it. [39 CWN 934]
36

- The endorsement refused is presumptive evidence of due service. [52 CWN 659] :Rule 15: Now in order that service can be made under Order 5 Rule 15 on adult member (male or female) residing with defendants family two conditions must be satisfied: (i) the absence must be from residence and not place of business, and (ii) there is no likelihood of his being found within a reasonable time. [AIR 2001 Del 272 (DB)] Reasonable time and reasonable diligence depend on the particular facts of a case. If the person is absent from his residence, then all possible enquiries are to be made to find out as to when he is likely to return to his residence, and in the process servers affidavit facts must be stated to show what enquiries were made and whether it was found reasonable under the circumstances to assume that the defendant could not be found at his residence within reasonable time. [A 1952 C 781] As a pardanashin woman is not able to accept service personally, she comes under the expression cannot be found (now absent from her residence) in Order 5 Rules 15, 17 and service can be effected on any adult male member of the family or by affixation on her residence. [19 CWN 1231] Where a summons is served on a boy who is not a major there is no proper service. [A 1995 MP 234]

:Rule 17: - Under the first part, service by affixation can be done only when defendant refuses to sign the acknowledgment. To allow it to be done under the second part three conditions must be present. (1) Defendant must be absent at the time; (2) No likelihood of his being found at residence within a reasonable time, and (3) No agent or other person to accept service. [A 1952 C 781]

37

Other persons has reference to those other persons mentioned in the proceeding rules of Order 5 who are entitled to receive on behalf of the parties. [A 1959 B 178]

- Service under rule 17 permissible only (i) if the defendant or his agent or such other person as is stated in rules 13 15 refuses to sign acknowledgement or (ii) if the serving officer after using all due and reasonable diligence cannot find the defendant and there is no agent or other person on whom service can be made. [A 1937 M 84] The expression after using all due and reasonable diligence has been considered in many cases and it has been held that unless a real and substantial effort has been made to find the defendant after proper enquiries, the serving officer cannot be deemed to have exercised due and reasonable diligence. Before taking advantage of section 17 he must make diligent search for the person to be served. Temporary absence is not enough, he must take pains to find him out, go again when defendant is likely to be present, make enquiries and if necessary, follow him. [20 CWN 173] :Affixation: - Before service by affixation is accepted, court should satisfy itself of the conditions in Rule 17. Where there is no evidence to show that there was any enquiry as to any local agent or relative competent to accept service, service by affixation during absence cannot be accepted. [A 1944 P 297] - When the defendant in his evidence denied service of notice through the process server, the onus of proof shifts to the plaintiff who should prove the essential ingredients of Order 5 Rule 17, by examining the process server. [A 1985 Ori 215] - When there is no indication of affixture of a copy of the summons on the conspicuous part of the tenants house and who identified it, it is an illegality. [A 1990 P&H 97]

38

- The process servers report must set out his action in full. A report that respondent was not found without stating what effort or enquiry was made to find him was unacceptable. [A 1952 C 781] - The report must state that the serving officer has affixed the copy of summons as per rules, the circumstances under which he did so and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. It should also be verified by an affidavit of the serving officer. [A 1994 NOC 119 (HP)] - Service by affixture is not justifiable where no further attempt at personal service was made after summons sent by registered post returned unserved or addressee not found. [A 1967 M 5] :Rule 20: :Substituted service: - Substituted service should be ordered only when the court is satisfied that the defendant is keeping out of the way or that for other reasons it cannot be served in the ordinary way, or that it could not be served in spite of several attempts, or that he has not been heard of for a long time. - Rule 20 is different in contents from Rule 17. The stage at which Rule 20 comes into play is different from stage at which Rule 19 comes into play. The stage at which Rule 20 operates is a stage of substituted service of summons pursuant to the order passed by the court. Rule 17 obviously operates in the field of direct service. [1997 AIHC 3804 (Guj)] - It cannot be said that the court dealing with the proceedings under the Indian Divorce Act, has no power to order service of notice by publication. But the caution that is made is that the service should be effected by personal service is not possible then the service by publication should be ordered. [AIR 1998 Ker 360] - The words or in such other manner as the court thinks fit give a very wide discretion to the court to adopt any other mode of service and hence affixation in a conspicuous part of assessees residence is valid service even though no copy is affixed in the court. [A 1967 SC 1952]
39

In a proper case there may be substituted service by proclamation in newspaper of long standing. [A 1930 L 397] - An application for substituted service should preferably be supported by an affidavit setting forth the grounds as to why personal service could not be had and particulars of the efforts that were made for the purpose. Temporary absence is no ground for substituted service. Where the substituted service by affixation on the wall of the house of the defendant was not preceded by the efforts on the part of the process-server to find out the defendant or any member of his family, the service was not in accordance with law, moreover the processserver was also not examined, the defendant was held not served and the ex parte decree would be liable to be set aside. [2001 AIHC 2728 (Raj)] : Order IX: :Rule 2: - Failure to deposit sufficient process-fee for service on all defendants before the date fixed for hearing justifies dismissal. - Dismissal under this rule not being a decree [Sec. 2 (2)], no appeal lies; and the plaintiffs remedy is under Order 9 Rule 4 or a fresh suit Revision lies. [A 1922 L 63] :Rule 4: - The court has to consider whether there was sufficient cause for the absence on the relevant date, and on previous/subsequent date. A party cannot be penalized for his/her previous negligence which has been overlooked and condoned earlier. [AIR 2000 SC 1221] - When a court restores a suit on being satisfied that there was sufficient cause for default or non-appearance, it has no jurisdiction to impose any terms as to costs. The provisions of Order 9 Rule 9 are different. [A 1957 P 32] - Limitation is 30 days from the date of dismissal (Art. 122 Limitation Act). :Rule 6:

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- Where the defendant neither appeared in the court not put forward his defence to repudiate the claim of the plaintiff but the plaintiff proceed his claim by evidence by affidavit and documents on record the suit was decreed. [1998 AIHC 3673] Ex parte merely means in the absence of the party. The passing of the order that the suit be heard ex parte does not debar the defendant to appear on subsequent hearings and conduct his case from the day of his appearance. [A 1925 M 127] - In a case of hearing of a suit ex parte the court must be vigilant and the decree passed ex parte must be supported by cogent and sufficient evidence to the satisfaction of the court. [A 1986 C 256] :Rule 6: - Called on for hearing means on the first day of hearing so as to distinguish it from Order 17 Rule 2. [A 1927 M 799] - Hearing in Rule 6 has been used in its technical sense to mean a hearing at which the judge either takes evidence or hears arguments or considers questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it. [A 1960 Pu 34] - Where the court has decided to proceed ex parte under Order 9 Rule 6 CPC, it means that it has merely decided to go ahead with the case in the absence of its defendant and the situation is not akin to one where an ex parte decree or order passed against a defendant. The court merely records in its minutes that proceeding forward in the absence of the defendant. - If thereafter the court has taken some steps in the trial, it is open to the defendant to come forward at a later stage and file an application under Order 9 Rule 7 to restore the status quo obtaining before he was set ex parte. - If good cause is shown for his absence, the court would allow the application thus relegating him to the same position which obtained before he was set ex parte. - But in case good cause is not shown by the defendant for his earlier absence and the application under Order 9 Rule 7 is rejected, it is still
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open to the defendant to join and participate in the proceedings at a later stage accepting the events which have taken place in the interregnum, as they stand. [65 (1997) DLT 300 (DB)] - When a matter is fixed for ex parte hearing for the reasons that the defendant had failed to perform an act necessary for the progress of the suit, the court can recall such order when the act was shown to have been performed. However, recall cannot be ordered only for the purpose of giving adjournment. [1998 AIHC 3219 (All)] :Rule 7: - Rule 7 cannot be read to mean that defendant cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared. He cannot be stopped from participating in the proceeding simply because he did not appear in the first or some other hearing. He will have to show good cause for his previous absence, only if he desires to be relegated back to the position in which he would have been put if he had appeared at the previous hearings, so that the proceedings in his absence could be reopened. [A 1955 SC 425] - In case of strikes by lawyers there is no obligation on the courts to wait or to adjourn the case. [(2001) 1 SCC 118] - There is no material difference between good cause in this rule, and sufficient cause in Order 9 Rule 13, if any, the requirement of good cause is complied with on a lesser degree of proof than sufficient cause. :Rule 8: - Order 9 Rule 8 applies where a single plaintiff or all plaintiffs where there are more plaintiffs than one, do not appear; and Order 9 Rule 10 applies where there are more plaintiffs than one and one or more of them appears and others do not appear. [48 C 57] - Where there are more than one defendant dismissal for default of appearance of plaintiff on days of hearing in presence of only one defendant is under Order 9 Rule 3 as against absent defendants and

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one under rule 8 only against present defendant and bar under Rule 9 operates only against present defendant. [A 1975 B 68] - Where the plaintiff does not appear, defendant is entitled to an order dismissing the suit and he has no option to give evidence in support of his case. [40 C 119] - Where counsel withdraws saying no instructions on behalf of the client the dismissal is for default of appearance. [A 1984 A 1] - This rule does not apply to non-appearance of plaintiff by reason of death. In such a case dismissal can be set aside under Section 151. [17 CWN 829] - When the wife was absent at the time of hearing of the petition for restitution of conjugal rights, and the respondent husband has admitted the claim of the petitioner, there is no alternative for the court except to grant a decree. [A 1985 P&H 349] - Rule 8 is conveso to Rule 6 the defendant appears and the plaintiff does not appear and in such a case the suit shall be dismissed unless the defendant admits the claim or a part of it. No option is left to the court as in Order 9 Rule 3. Judgement on admission (Order 12 Rule 6) :Rule 9: - Rule 9 applies to suits and proceedings in the nature of suits or original proceedings in the nature of suits. [A 1961 Raj 59] - Rule 9 does not apply to an execution petition dismissed for default. - In a proper case execution petition dismissed for default may be restored under Section 151. [55 A 891] [Note: - See newly inserted Order 21 Rule 106 which has made Specific provision for setting aside execution petitions dismissed for default and hence there will be now no scope for application of Section 151.] - On the restoration of the suit, all interlocutory order like injunction order etc. revive. [(2001) 3 KLT 128 (Ker)]
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Where a suit filed by several plaintiffs is dismissed for default, even one of the plaintiffs can file a petition to set aside the dismissal. [AIR 1995 Mad 369]

:Sufficient cause: - Advocates strike is sufficient cause for restoration, for the party should not suffer. [(2001) 3 Punj LR 542 (P&H)] - In restoration matters a justice oriented approach and not a too technical or pedantic approach is expected to be adopted by the courts, more so when the case sought to be restored is a claim case out of motor accident. [AIR 2002 SC 505] :Precluded from bringing a suit in respect of the same cause of action: - When restoration is not applied fresh suit on the same cause of action is barred. [91 (2001) CLT 808 (Cri)] - To apply the bar (1) Plaintiff must be the same and (2) cause of action must be identical. [A 1949 M 882] - Dismissal of a partition suit does not bar a fresh suit, for the jointness continues and it is a continuing cause of action. [10 CWN 839] - Dismissal under Order 9 Rule 8 of a suit for getting avoid marriage declared as a nullity does not bar subsequent petition on the same ground. [A 1981 HP 47] - Though a fresh suit is barred under the rule, it does not preclude the plaintiff from setting up his claim as a defence in a suit against him. [42 CWN 853] - Where dismissal of suit for default was due to gross negligence of minors guardian, he can on attaining majority bring a suit for the same relief. [Note:
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- This is the present undoubted position since a proceeding under Order 9 Rule 9 is now a proceeding under S. 141 in view of the amendment made by 1976 Amendment Act (See Section 141). - What Order 9 Rule 8 primarily contemplates is a dismissal for default whether the whole suit or, where a portion of the claim has been admissible of the rest of the suit. If there has been appearance on the part of the plaintiff, the decree passed is not a decree made on default and even when a part of the claim is dismissed, it must be a dismissal on merits. And in such a case when there is dismissal in spite of appearance, the decree passed cannot be set aside and the suit restored on an application. [A 1959 C 389] :Limitation: - For setting aside order of dismissal is 30 days under Article 122 of Limitation Act, 1963. - Section 5 of Limitation Act, 1963 applies. :Rule 11: - This rule must be read with Order 9 Rule 13 and effect should be given to all the provisions contained in them. [6 CLJ 226] - Instead of passing a general order decreeing the suit against all the defendants, it is desirable, as contemplated in the concluding portion of the rule, that a specific order should be passed against the absent defendants; and if a decree is to be given against all, it should be stated that it is ex parte against the absent defendants. ::Rule 13:: Setting aside decree ex parte: - The provision of rule 13 envisages two different situations. It provides for setting aside of ex parte decree where summons have not been duly served on the defendant or where he is prevented by any sufficient cause from appearing when the suit is taken up for hearing. It is, however, not correct to say that in cases falling in the former category, like the present one, non-appearing defendant is not required to disclose the source of knowledge or the manner in which he got the knowledge. In cases falling in the second category, the limitation will run from the date of the (ex parte) decree while in cases falling in the first category, it will run from the date of knowledge.
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Thus, in such cases, enquiry on the question as to when and in what manner the applicant got knowledge about the suit and the decree is not only implicit but the basis to the adjudication of the main issue, since it may in particular case, involve question of limitation. [(1994) 1 BLJR 401] In an application under Order 9 Rule 13 CPC, what the court has to see is the existence or otherwise of sufficient cause for non-appearance on the date when he was proceeded ex parte by the court; whereas in an appeal what is required to be seen by the court is whether the decree impugned is or is not in accordance with law or supportable on the basis of material brought on record. Accordingly both the remedies are open to the defendant in the suit who suffered an ex parte decree. [1997 (4) ALT 689] On an application under Order 9 Rule 13 for setting aside an ex parte decree enquiry as to service of summons/notice of the suit on the defendant applicant is mandatory; without such enquiry, rejection of the application is illegal. [AIR 2001 SC 1253] If of three defendants against whom an ex parte decree was passed, only two of them filed the petition to set aside ex parte decree, the ex parte decree should be set aside against all of them. [1996 AIHC 1572] Only the defendant who is proceeded ex parte but not other defendants though they have got interest in the suit can file application under Order 9 Rule 13 CPC for setting aside the ex parte decree. [2001 (2) CCC 339] Order 9 Rule 13 applies to orders passed at first hearing. The provisions relating to ex parte decree at adjourned hearings are contained in Order 17 rules 2, 3. Where on the adjourned date, the defendant failed to let in evidence the court should set him ex parte and proceed under Order 9 and it should not proceed under Order 17 Rule 3. [1996 AIHC 1746 (Mad)] The only points for consideration are: (a) Whether there was due service of summons or (b) Whether there was sufficient cause for nonappearance at the hearing. On failure to substantiate any of the grounds, court has no jurisdiction to set aside an ex parte under Section 15. [AIR 2001 SC 2497]
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- When an ex parte decree is set aside the evidence of the plaintiff prior to the setting aside of ex parte decree is not legal evidence and cannot be basis of judgement and decree at a fresh trial not withstanding the subsequent trial is also ex parte. [A 1974 AP IFB] - It is permissible to set aside a decree under Order 9 even when the court purports to act under Order 17 Rule 3 if the circumstances are such that the actual order passed is one which could be legally passed under Order 9 read with Order 17 Rule 2. [A 1979 A 257 FB] - Order 9 Rule 13 is applicable if a decree is passed under Order 17 Rule 2. [A 1988 Ker 304] - If a decree is passed dismissing the suit against one set of defendants and an ex parte decree is passed against another set of defendants and the second set of defendants file a petition to set aside the exparte decree, it must be set aside in its entirety, if the decree is one and indivisible. [A 1991 Del 194] - Merely because an ex parte decree for possession has been executed and possession delivered, does not prevent the court from setting aside an ex parte decree if sufficient cause is shown. [1996 AIHC 372 (Kant)] :Affidavit Evidence: - Application under rule 13 being an interlocutory application Order 19 Rule 2 applies and evidence upon the application may be given in affidavit. [1961 1 And WR 212] ::Order 9 Rule 13 (Contd.):: :Remedies available: - When an ex parte decree is passed, the remedies available are: (i) to apply under Order 9 Rule 13; or (ii) to appeal under Section 96; or (iii) to apply for review under Order 47 Rule 1; or (iv) to institute a suit on the ground of fraud. [A 1976 MP 136 FB]

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- All the remedies are concurrent. A party can apply under this rule and at the same time appeal from the ex parte decree, or apply for review. He can also appeal without a previous application under this rule. [9 M 445]

- Appellate court can hear and dispose of appeal on merit under section 92 (2) even if the trial court has dismissed an application under Order 9 Rule 13. The restriction imposed by 1976 Amendment applies to the trial court and not to the appellate court. [A 1985 Gau 67] :Sufficient cause: - It is well settled that sufficient cause in each case is a question of fact. - A Full Bench has pointed out that the lawyers engaged in cases fixed for hearing at a given time and place cannot be allowed to treat the court with indifference and then apply casually for reinstatement of a suit merely because they hoped and believed that they might attend the hearing. They must take reasonable precautions and the provision of Order 9 become meaningless if it can afterwards be urged that although none were present and there was no sufficient cause for their non-attendance, the suit can still be restored because the litigant would suffer if it were not. [A 1940 R 162] - Where no notice is given to the party about the transfer of the suit to another court on administrative grounds, it is a sufficient cause and if there was delay in filing the petition under this rule, it is sufficient reason to condone the delay. [AIR 1995 AP 58] :As against him 1st Proviso: - The proviso may, in appropriate cases, be invoked in two classes of cases: (i) Where the decree is passed ex parte against all the defendants and some of them apply under this rule, and

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(ii)

Where the decree is passed ex parte against some of the defendants and on contest against others who defended the suit, and the application to set aside the decree is made by some of the defendants against whom it was passed ex parte. But where the suit has been dismissed against any of the defendants who appeared and contested, the decree cannot be set aside against such a defendant under the proviso. The substantive part of the rule as well as the proviso contemplates the setting aside of a decree against a defendant, not one in favour of a defendant. Emphasis lies on the word against and the proviso does not empower the court to set aside the dismissal of the suit against one of the defendants. [A 1954 N 125] :Second Proviso: - The proviso applies only in the case of irregularity in service and not when there is no service at all. - After the introduction of the 2nd proviso, the service of summons without a copy of plaint ceases to be a sufficient ground for setting aside an ex parte decree, if the defendant has the knowledge of the date of hearing and he has sufficient :Order 11 Discovery and Inspection: ::Rule 1: Discovery by interrogatories: - By discovery a party is enabled to obtain from his opponent material facts or information as to documents or admissions which will support his own or damage his opponents case. - Though the nature of each partys case is set out in the plaint and the written statement, they may not sufficiently disclose their respective cases. The machinery provided in this order may be availed of with the leave of the court for the elicitation of additional materials for better preparation of a case before it is brought to trial and to shorten its duration and minimize costs. - For this purpose interrogatoris may be submitted for answer by the opponent and discovery of documents may be asked for. - In determining what interrogatories should be allowed regard should be had to Order 11 Rule 2. The court should decide it within seven days of making the application.
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- Inspection may also be obtained of documents disclosed in the opposite partys pleadings and affidavits. - Interrogatories have to be confined to the facts which are relevant to the matters in question in the suit, have to bear reasonably close connection with matters in question. [AIR 2000 Ker 24] - The court may further under section 30 suo motu make such orders as may be necessary in regard to answer of interrogatories, admission of documents and facts, discoveries, inspection etc. - The machinery of Discovery, if rightly understood and utilized extracts for eitherside all the material documents in his possession, and with the aid of inspection and the supply of copies, enables both sides to go to trial fully equipped with all relevant documents relied upon by either party. Nearly all questions relating to the relevance of the documents have already been determined in chambers before the trial begins. Facts within the knowledge of one party, but unknown to the other have been disclosed, and elucidated, by admissions and interrogatories. Thus nearly all the cards are on the table and the risk of surprise is reduced to a minimum. [expressed by Sir Cocil Walsh, KC, Late Chief Justice, Allahabad High Court] - Interrogatories are allowed (a) to discover the nature of the case, or the facts on which reliance is placed in support of the case as distinguishable from evidence, - the object being that his opponent may know what case he has to meet. [41 C 6] (b) to impeach or destroy the opponents case or to obtain information or admission in support of his own case. [17 C 840] - On serving interrogatories under Order 11 Rule 1 one cannot compel a party to make discovery on oath of any document. Provision for discovery on oath or production or inspection of documents is made under Rules 12 to 21 of Order 11. [A 1978 Or 179] - Discovery will not be allowed to matters (a) which are criminatory or penal (see however Section 132 Evidence Act), (b) which come within the doctrine of legal professional privilege (see sections 126, 129 Evidence Act); (c) which relates solely to a partys own case. [55 CLJ 440]

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(d) which are injurious to public interests (see sections 123, 124 Evidence Act). - The respondent is not bound to answer interrogatories which are likely to lead to an incrimination of himself in any criminal. [A 1960 M 184]

OPPOSITE PARTY - If there is some right to be adjusted between two plaintiffs or two defendants they are opposite parties within this rule. The words opposite party in Order 11 Rule 12 mean any opposite party. [17 B 384] :Discovery by interrogatories: - The concluding portion of Order 11 Rule 1 distinguishing between discovery and cross-examination, shows that the discovery must be directly relevant to the matters in issue. - The only questions that are relevant as interrogatories are those relating any matters in question. The interrogatories served must have reasonably close connection with matters in question. [A 1972 SC 1302] - The party directed to answer interrogatories can answer through recognised agent in the absence of a special direction to answer personally. [A 1941 N 205] :Rule 11: - The terms of this rule contemplate two orders: First an order for answer to the interrogatories or for the discovery or inspection of the documents within a specified time; and secondly upon the failure to comply with such order a further order dismissing the suit. [50 CLJ 397]

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::Rule 12: Application for discovery of documents:: For discovery it is sufficient that the documents can throw some light on the matter in controversy, admissibility in evidence being not necessary. [A 1979 Ori 96] The provision is not intended to enable the party to cause a roving enquiry to fish out information which may or may not be relevant for the disposal of the suit. [A 1987 Ori 207] Discovery may precede particulars if two conditions exist: (i) Where the information sought is necessarily within opponents knowledge; (ii) Where the court is satisfied that no unfair attempt to fish out a case is being made. [A 1935 M 288] When the court makes an order for discovery under this rule, the opposite party is bound to make an affidavit of documents, and if he fails to do so, he will be subject to the penalties specified in Order 11 Rule 21.

::Rule 13: Affidavit of documents: - An affidavit of documents shall set forth all the documents which are, or have been in his possession or power relating to the matter in question in the proceedings. And as to documents which are not, but have been in his possession or power, he must state what has become of them and in whose possession they are, in order that the opposite party may be enabled to get production from the persons who have possession of them. [A 1972 SC 2379] - When privilege is claimed the affidavit should set out the grounds and the grounds of privilege must be sufficiently disclosed. [22 C 105] :: Rule 14: Production of documents :: - An order under rule 14 is not dependent upon any prior order being made under rule 12. It can be made at anytime either on application or suo motu. [A 1955 A 251] - Power under 14 should be exercised with caution. It applies to existing documents in possession or power of a party. An order on the
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defendant to apply for certified copy of document and to produce it is not legal. - Deliberate refusal to produce justifies the assumption that the documents would have supported the other partys case. [A 1944 A 188] :Rule 15: - A defendant is entitled to inspection of documents referred to in the plaint or affidavit of the plaintiff or the list attached to the plaint. - In cases of documents referred to in the plaint, the defendant can inspect them even before filing written statement. But before filing written statement he is not entitled to inspect documents not referred to in the plaint under Order 11 rule 12 even though they relate to a matter in question in the suit. [A 1944 P 177] :Rule 18: Order for inspection: - Under sub-rule (1) a party can inspect only particular entry or entries referred to in the plaint and for inspection of other portion of account books recourse has to be had to sub-rule (2). [A 1968 P 474] - Under sub-rule (2) inspection can be made not only in respect of documents mentioned in the pleadings and the affidavit of discovery, but also in respect of other documents. The difference between the two cases is that in the case of documents not mentioned in the pleadings or the affidavit, the court has to be satisfied about their relevancy by an affidavit, if the court is not otherwise satisfied. [A 1931 A 231] - In such a case the other party should be given an opportunity to file a counter affidavit in answer. [23 C 117] - The court must apply its mind and give reasons for determination whether the documents sought to be inspected are relevant. [A 1966 M 375] :Rule 19: Verified copies: - While the court cannot inspect documents relating to matters of state, as prohibited under Section 162 Evidence Act, and as now specifically saved also by insertion of the words unless the document relates to matters of state, the court has got to hold a preliminary enquiry into
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the character or class of document, when privilege is claimed or objection is raised in order to decide about the validity of the claim or privilege. The court cannot permit any evidence about the contents of any document and cannot also hold any enquiry into possible injury to the public interest may result from the disclosure of the document, but other collateral evidence may be produced. If the court comes to the conclusion that the document relates to the affairs of the State it should leave it to the head of the department to decide about its production. [A 1961 SC 493] ::Order XI Rule 21: Non-compliance with order for discovery:: - It is well settled that the stringent provisions of rule 21 should be applied only in extreme cases. In the case of a plaintiff an order for dismissal of the suit ought not to be made unless the court is satisfied that the plaintiff was willfully withholding information by refusing to answer interrogatories or by withholding the documents which he ought to discover. An order striking out defence should not be made unless there has been obstinacy or contumacy on the part of the defendant or willful attempt to disregard the order of the court. [A 1978 SC 1436] - The penal provisions of rule 21 can be invoked only if there has been an order to answer interrogatories or for discovery or inspection of documents under rules 11, 12 and 18. [A 1962 AP 248] - The power cannot be exercised suo motu without any application by a party. [A 1968 A 119] - Even when the defence is struck off, the defendant should be allowed his right of cross-examination and arguments but he cannot be allowed to lead his own evidence. [A 1989 SC 162] - Refusal to produce certain documents is not a lapse within rule 21. If documents are not produced under rule 14, the court would be entitled to make an adverse presumption. [A 1957 Raj 367]

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Judgement Decree :Section 33: - In civil cases the judgement must be pronounced within two months from the date of conclusion of the hearing in the case. [AIR 2001 SC 3173] - The decree passed without jurisdiction is a nullity. The question of its invalidity can be raised even at execution stage. [1993 (2) JT 341] - A decree passed against a dead person is invalid. [1994 Supp (3) SCC 314] :Order XX: :Rule 1: - A judgement is the final decision of the court intimated to the parties and to the world at large by formal pronouncement or delivery in open court. Upto the moment of delivery judges have the right to change their mind. But after delivery, that is an alteration of the decision and not merely the addition or subtraction of part of the reasoning cannot be made without notice to the parties and hearing them afresh. [1954 SC 194] - Once the judgement is delivered in open court, after the matter is heard in the presence of the parties, it becomes final and effective and it makes no difference whether it is signed or initialed. The date of the judgement is the date when it is delivered in open court and not the day on which it is signed. [A 1968 G 289] - The rule as to pronouncing judgement in Open Court is very important and must be strictly followed. It enables immediate rectification of slips or errors which may be pointed out by pleaders or provides an opportunity of pointed out by pleaders or provides an opportunity of notifying a settlement already arrived at between the parties. [30 B 455] - An order made in chamber without notice to parties, is bad in law.
55

[A 1942 C 215] - Proviso insists upon the court to record reasons for delay in pronouncing judgement beyond 30 days after hearing. An unreasonable delay between hearing of arguments and delivery of a judgement unless explained by exceptional or extraordinary circumstances is highly undesirable even when written arguments are submitted. [A 1976 SC 2037] - The judgement, even though it might be ex parte one, must contain the prcis of the plaint, the points for determination and the findings. [A 1988 Kant 93] - A court is required to decide a case on the basis of the pleadings and cannot go beyond the pleadings and make out a case which is not conceived by the contesting parties through their pleadings and evidence as an alternative case. [2000 AIHC 811 (Gau)] - It is not proper for a court, when once judgement is both pronounced and signed, to suo motu reopen the case for rehearing, and that too without assigning any reason discernible from the records. [2001 (1) KLT 16 (Ker. DB)] :Rule 3: - Judgement should be signed at the time of pronouncing it. [31 C 1057] - This rule is a clear prohibition against any addition or alteration to a judgement once signed and pronounced except as provided in section 152 or as review [Sec. 114, Order 47, Rule 1] - A judgement cannot be allowed or amended even with the consent of the parties. [A 1925 M 457] - A judge has no inherent power to set aside or modify a final order merely because it is wrong. [A 1957 A 67] - Purely clerical or accidental slip, e.g. erroneous writing decreed instead of dismissed in the order portion may be corrected any time. [6 CLJ 22] - Indeed delivery in open court is intended as a safeguard against errors. [30 B 455]

56

:Rule 5: - The whole object of framing issues is to keep the various points arising for decision separate and district and to lump them all up together in the judgement defeats the object and cannot but lead to confusion (See Order 14 Rules 1 and 2). - Order 20 Rule 5, CPC, enjoins upon a court, in a suit in which issues have been framed, to state its finding or decision with reasons therefor upon each issue separately, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. [Vide (1999) 79 DLT 486 (DB)] :Rule 6: A decree is the mouth-piece of the suit in its immediate result and without it the dispute between the parties would not be intelligible. It must necessarily be drawn up in accordance with the judgement. [5 A 502] Decree should be drawn up in such a way as to make it self contained and capable of execution without referring to any other document. [8 C 975] The drawing up of a decree cannot be postponed for non-payment of deficient court fee, the decree shall bear an endorsement that the decree shall not be executed till the deficient court fee is not paid. [AIR 2001 Del 338 (DB)] [Sub-rules (2), (3) The cost incurred in the suit are to be entered in the decree; this must mean the costs incurred both by the winning party and the losing party. [14 CWN 556]

:Rule 6A: - Final decree for partition does not become enforceable unless it is endorsed on stamp paper. Limitation for its execution does not begin to run under Art. 136 of the Limitation Act until it is so drawn up : Order 20 Rule 6A does not apply to such a case. [A 1988 C 1]

57

:Order 20 Rule 11: Executing court has now power to direct payment of decretal amount by installments. [A 1985 AP 49] Sub Rule (2) enables the court passing the decree to order postponement of payment or payment by installment of decretal amount with the consent of the decree holder. A compromise arrived at between a decree holder and the judgement debtor after decree to the effect that the decree shall be payable by instalments, provided certain interest for which the decree does not provide is paid, can be recorded by the executing court and can be executed. [A 1946 N 313] Limitation for an instalment application under rule 11 (2) is thirty days from the date of decree (Art. 126 Limitation Act, 1963). :Order XX Rule 12: (Decree for possession and mesne profit): Under the rule the court may pass a decree (1) for possession (2) (a) for amount of rent accrued or mesne profits prior to suit (if it could be ascertained during trial) or (b) directing an enquiry as to such rent or mesne profits; (3) directing an enquiry as to rent or mesne profits pendente lite and up to delivery of possession. [A 1985 B 399] Parts (1) and (2) (a) of the decree are complete or so to speak final and capable of immediate execution. Parts (2) (b) and (3) are in the nature of a preliminary decree and become final only after the amount has been ascertained and a decree passed under sub-rule (2). If future mesne profits can be ascertained at the trial without the need of further enquiry a preliminary decree need not be passed. [51 CWN 136] Suits for ejectment or for recovery of possession from one without the title with a claim for mesne profits come within rule 12 and suits for partition with a claim for accounts and future profits come within rule 18. [A 1957 AP 766] If mesne profits is not specifically claimed, court cannot grant it as the claim for mesne profits cannot be included within the expression

58

possession and occupation of the property together with all the rights appertaining thereto. [A 1952 SC 358] - No direction to hold an inquiry under Order 20 Rule 12 for granting the mesne profit at a rate higher than the one claimed in the plaint can be issued. - Where after the termination of the tenancy, the possession of the defendant tenant was unauthorised and wrongful, plaintiff was held entitled to damages/mesne profits from the date of the termination of the tenancy and the eviction order. [2000 AIHC 844 (AP)] - After obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgement creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. [AIR 1999 SC 882] - When there is termination of lease, and when possession of the lease is not legal the lessor would be entitled to mesne profits and not rent for the period of unauthorised possession. [1998 AIHC 1133 (Mad)] - A lessee after the expiry of the lease period would be a trespasser, liable to pay mesne profits from the date of institution of the suit. [2000 AIHC 3062 (Cal-DB)] - Mesne profits are to be ascertained by the court which passed the decree and it is that court which can pass a final decree for the amount. [A 1938 Bom 320] - Once the final decree is passed, thereafter it is not open to the court to grant the relief of mesne profits. [AIR 1999 Mad 312 (FB)] - Where decree is for payment of mesne profits until delivery of possession - it is implied that mesne profits are not to be followed for more than three years in any case. [A 1959 B 536] - Mesne profits has to be determined only on the basis of the usufructually received by the person in possession of the property.

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- Normally a person in wrongful possession has to pay compensation on the basis of profits he actually received or with ordinary diligence might have received. [A 1963 SC 1405] - In an eviction suit, the tenant is liable to pay mesne profits after the expiry of base period at the prevalent rate and not at the contractual rate. [AIR 1992 Cal 216] - The definition of mesne profits includes interest which is an integral part of mesne profits, but it is settled law that the court has discretion either to refuse interest or to give it at such rate as it thinks fit. - Application for ascertainment of mesne profits being an application in the pending suit itself, law of limitation does not apply. [52 B 360] - As to prior mesne profits, they can be claimed only for a period preceding three years next before the institution of the suit under Art. 106 Limitation Act. [13 CWN 15] :Partition suit : Rule 18: - The suit remains pending until final decree is passed and any addition of parties under Order 1 Rules 8, 10, 11 can be made before that. [A 1924 M 648] - When after a preliminary decree there has been an enlargement or diminution of shares by reason of succession or subsequent purchase or assignment, the court before passing final decree ought to grant final decree in accordance with such devolutions. It can be done under Order 22 R 10. [A 1955 Mys 6] - There can be second or third preliminary decree, if there is any necessity on account of death of a party to the suit or on account of absence of any co sharers or on account of any transfer from a co sharer who was a party to the suit. [AIR 1997 Pat 7] - In a suit for partition on the basis of settlement deed, the validity of the deed on the ground of fraud/misrepresentation cannot be assailed in the partition suit, a separate suit for the cancellation of the deed under S. 31 of the Specific Relief Act has to be filed. [AIR 2000 AP 29]

60

- A decree passed under rule 18 (1) directing partition by collector cannot be said to be a preliminary decree. [A 1959 Mys 233] - In a partition suit by one co sharer, the court should not merely give a decree for the plaintiffs share only but should consider the shares of all the other co-sharers after making them parties. [A 1960 M 391] - A compromise decree in a partition suit allotting and specifying the properties allotted to the share of each party is a final decree and nothing remains to be done except to engross it on stamped paper. [A 1945 P 482] :Final Decree: - The condition precedent is to draw up a final decree and then to engross it on stamp papers of required value. These two acts together constitute final decree, crystallizing the rights of the parties in terms of the preliminary. Till then there is no executable decree as envisaged in Order 20 Rule 18 (2). [AIR 1995 SC 1211] - A final decree in a partition suit must be stamped as an instrument of partition under Sec. 2 (15) and Art 25 of the Stamp Act. [32 C 483] :: Section 35 : Costs :: - Costs means statutory allowances a succeeding party is entitled to get from the losing party to reimburse himself for expenses incurred defending or prose cutting the proceedings. [A 1976 A 111] - Section 35 confers a wide discretion on the court in the matter of costs, but such discretion must be used judicially and not by caprice. [1965, I And WR 433] - Though lone and single, the petitioner fought a valiant battle against a giant enterprise, and so in token of appreciation a sum of Rs. 10,000 was ordered to be paid by way of costs. [M.C. Mehta v. Union of India, A 1987 SC 965] - In a writ petition filed by a voluntary organisation as a public interest litigation which had to be fought over a period of 6 years the Union of India was ordered to pay a sum of Rs. 50,000/- as costs. [AIR 1996 SC 1446]

61

- It was found that the proceeding was instituted mala fide and it was only a sharp practice designed to abuse the process of law and to take undue advantage. In that case, the Supreme Court ordered payment of exemplary costs of Rs. 50,000/-. [AIR 1996 SC 1733] - Where both the parties are justified in raising legal pleas, parties should bear their own costs. [A 1960 B 532] - Costs shall follow the event i.e., the result. The general rule is that the successful party is entitled to costs unless he is guilty of misconduct, negligence or omission or unless there is some other cause for not allowing costs. [18 B 474] [A 1957 SC 577] - The meaning of the expression costs shall abide the event is that the successful party must get the costs. Where the order is that costs shall abide the result, the whole matter is in the discretion of the court in this way that not only has the court discretion of the court in this way that not only has the court discretion to allow or disallow the general costs of the action but also to allow or disallow costs in an interlocutory application or appeal from preliminary question. The two expressions do not mean the same thing. [A 1966 Pepsu 103] - The court in a particular case may direct that costs shall not follow the event but in that case it has to state its reasons in writing. [A 1976 B 241] - Though the ordinary Rule is that in a suit for partition the parties should bear their respective costs upto preliminary decree stage, the court may take into consideration while awarding cost when a question of title is set up by one party against the other and the court has to decide it in the preliminary decree. [A 1985 Kant 231] - Suit dismissed with costs means that the plaintiff is to pay costs of all the defendants, i.e. two or more if separate costs have been incurred, it cannot be read as meaning that one set of pleaders, fees should be taxed in all cases. [A 1942 B 284] - Where in an application for amendment of written statement the plaintiff takes a recalcitrant attitude and protracts the litigation it would be in the fitness of things that the amendment should be allowed and plaintiff is saddled with costs.
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[A 1969 Or 267]

Sub section (2) - When the court thinks that costs should not follow the event, reason should be recorded. [A 1928 Or 224] :Exemplary costs: - Many unscrupulous litigants in order to circumvent orders of courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of courts, such tendency deserves to be taken serious note of and curbed by passing appropriate orders and issuing necessary directions including imposing of exemplary costs. [AIR 2000 SC 2108] :Costs Against Pleader: - A pleader may in certain cases be made liable for costs of minor (Order 32 rules 2, 5). Section 35 covers when the act of a legal practitioner comes within misconduct within the Legal Practitioners Act. A pleader may be liable for costs in respect of an application for review on ground wholly untenable. [A 1942 O 279] - Where the exparte decree was passed as the advocates had gone on strike, restoration was allowed subject to payment of costs by the party. The party was held entitled to recover costs from the advocate. [AIR 2001 SC 207] ::Section 35A : Compensatory Costs:: - Compensatory costs are intended to discourage persons making false and frivolous pleas in prosecution or defence proceedings. It refers to extra costs allowed to meet the expenses of a litigant incurred by him in an action which is not otherwise taxable. The provision is merely for compensating the successful party. Though such costs include damages, they cannot partake of the nature of damages for tort or breach of contract under Contract Act. [A 1976 A 111]

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- Before awarding costs court has to satisfy itself that (1) the claim was false or vexatious to the knowledge of the plaintiff, (2) that interests of justice require it and (3) the objection was put forward by the defendant at the earliest opportunity. [1949 2 MLJ 744] - The compensatory costs could be granted only by a trial court and not by a court setting in appeal or revision. [A 1987 Raj 14] - Where the Principal Secretary in the Local Government Department on account of lapse on his part did not notify the election of the President of Municipal Board as a result of which the elected candidate could not resume office, the Supreme Court directed the Secretary to pay Rs. 25,000/- as exemplary costs from his own pocket. [AIR 2001 SC 1098] - Costs under this section are compensatory and not penal. [1949 All 135] ::Section 35B : Costs for causing delay:: - So that there is no undue delay in the particular stages of the litigation, the section 35 has been inserted by 1976 Amendment in order to give the court a discretion to impose compensatory costs on parties who are responsible for delaying any stage of the litigation irrespective of the outcome of litigation, making it obligatory that payment of such compensatory costs shall be the condition precedent to the further prosecution of the suit or the defence by the plaintiff or defendant concerned. What section 35B precludes is the further prosecution of the suit by the plaintiff or the defence by the defendant as the case may be. [A 1988 Gau 74] - In the event of a party failing to pay costs on the date next following the date of the order, it is mandatory on the court to disallow prosecution or defence, as the case may be. However in suitable cases court may exercise power under Section 148. [A 1981 P&H 269 FB] [See also Order XXA] :Execution: - The principle is that the court has inherent power to have its order carried out.
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:Section 37: The court which actually passed the decree does not lose its jurisdiction to execute it. [A 1956 SC 87] It has been clarified by providing that the court to which the subject matter has been transferred can also execute the decree on its own authority. A decree passed by the appellate court would be construed as decree of the court of first instance. [AIR 1994 SC 1699] There is a distinction between jurisdiction to execute a decree and jurisdiction to entertain an application for execution of a decree. So, where after the passing of a decree a court is removed to another place or property is transferred from its jurisdiction to the jurisdiction of another court by local Governments notification, the removed court or the original court may entertain an application for execution and then send it to the court having territorial jurisdiction for executing the order for sale. [35 CWN 77] :Section 38: This section confers jurisdiction for execution on (1) the court which passed the decree as defined in S. 37 or (2) the court to which it is transferred (See Section 39). After an appeal the decree of the trial court is merged in the decree of the appeal and the only decree executable is the decree of the appeal court. [21 CWN 776] Territorial jurisdiction being a condition precedent, no court can execute a decree in respect of property lying outside the territorial jurisdiction at the time of execution. [33 CWN 848] There are, however, certain exception: (i) When a decree is in respect of immovable property situated within the jurisdiction of different courts (see section 17 and Order 21 Rule 3); (ii) right of court to appoint receiver outside the jurisdiction of the court; (iii) attachment of salary for allowances as provided in Order 21 Rule 48 even though the judgement debtor or the disbursing officer is not within the jurisdiction of the court; (iv) in the case of levy of attachment under
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Order 21 Rule 52 by the court which passed the decree acting on its execution side against property which is beyond jurisdiction but is in the custody of the court of an officer. [A 1958 A 425] (v) in case of mortgage decree or decree charged on property power to order sale of mortgaged property even though the property is situated beyond jurisdiction. [43 CWN 453] - Section 38 should be read as conferring jurisdiction upon either court the court which passed the decree (the expression being read in the light of the explanatory Section 37) as well as the court to which the decree is sent for execution by such court (in accordance with the provision of Section 39). Executing court cannot go behind the Decree, except that it can refuse to execute Decree without jurisdiction: - A court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect in law or on facts. [A 1970 SC 1475] - It has been universally held that the executing court cannot alter, vary or add to the terms of a decree, nor can go into the question whether decree was obtained by fraud. - It must take the decree as it stands and cannot question its legality or correctness or validity. - The principle that the executing court cannot challenge the validity of the decree applies only between the parties to the decree. [A 1950 B 155] - It is true an executing court cannot go behind the decree. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree, the court often has to ascertain the circumstances under which the words came to be used. [A 1972 SC 1371] - It is the fundamental principle well established that a decree by a court

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without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. [A 1954 SC 340]

- But executing court cannot entertain a plea of nullity on the ground of lack of territorial or pecuniary jurisdiction of the court passing the decree. For it has been held that in view of section 21 and 99 CPC, and section 11 suits Valuation Act the policy of the Legislature has been to treat objections of jurisdiction, both territorial and pecuniary as technical and that when a case had been tried on the merits and judgement rendered it should not be liable to be revoked on this technical ground unless it has resulted in failure of justice. [A 1954 SC 340] - Thus we find it categorically stated that validity of a decree can be challenged in execution only on the grounds rendering the court entirely lacking in inherent jurisdiction. (i) in respect of the subject-matter of the suit, e.g., when it could not have seisin of the case the subject matter being wholly foreign to its jurisdiction, or (ii) over the parties to it e.g. the defendant was dead at the time the suit had been instituted or decree passed without bringing the legal representative on record. [A 1970 SC 1475] - Executing court can refuse to execute a decree where the decree has become inexecutable on account of a change in law. [A 1962 SC 1230] ::Section 39: Transfer of Decree:: - The transferee court gets jurisdiction to execute the decree to the limits of its jurisdiction to execute its own decree and retains the jurisdiction until it sends Certificate under Section 41. Outside the limits indicated, the transferor court retains the power to execute the decree in certain circumstances inspite of the absence of any certificate under Section 41. [A 1964 Or 170] - In the absence of any transmission by the Court which passed the decree, it is not competent for any court possessing jurisdiction over

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the property sought to be attached to entertain a petition to execute the decree. [A 1942 C 321] - The word may does not empower the court passing the decree to attach property outside its local jurisdiction. May only refers to a judicial discretion. [A 1985 59] [See also new Sub section (4)] - An application for substitution of heirs of deceased judgement debtor may be made to the court passing the decree (Section 50), as well as now to the transferee court under Section 42, because of insertion of Clause (b) to sub-section (2) giving power to the transferee court to execute the decree against legal representative of deceased judgementdebtor under section 50. An application by assignee under Order 21 Rule 16 can be made to the court which passed the decree. [39 CWN 961] - It may be now, Section 42 (4) (a) has expressly provided that this is a matter only for the court which passed the decree, and the transferee court has no power to order execution at the instance of the transferee of the decree. :Section 41: - There must be formal certification which is a very important step as it terminates the jurisdiction of the transferee court. [A 1924 B 359] - There is no particular form for a certificate. Information sent to the transferor court about the result is sufficient. [A 1961 Raj 157] - The provisions of section 41 are mandatory. An order that a certificate be issued and sent has to be made. The mere sending of a copy of the order dismissing the execution petition without a non-satisfaction report is not sufficient. [A 1969 AP 263] - The non-sending of non-satisfaction certificate may be an irregularity, but it does not affect the right of the decree-holder to put in a second execution application. Similarly there is no prohibition in law that two execution applications cannot simultaneously go on if the property against which execution is sought is not the same.
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[A 1960 A 558] :Section 42: - This section expressly gives the court executing a decree sent to it, the same powers in executing such decree as if it had been passed by itself. [A 1956 SC 359] - The expression powers for the execution of a decree connotes powers for the general object of the execution of the decree while the expression powers in executing such decree means powers exercised in actually enforcing the decree. [A 1956 MB 255] - The transferor court does not divest itself of all powers e.g. it can carry on simultaneous execution (see S. 39), or make an order for simultaneous execution in another court. [A 1962 My 89] or issue precept under Section 46 [31 CWN 653] or recall execution proceedings from the transferee court [A 1939 P 144] - If the decree is assigned after transfer, the assignee must apply for execution to the original court and if the judgement-debtor dies after transfer by reason of section 50 the original court is the proper court to order execution against legal representative. - Section 42 expressly gives the court executing a transferred decree the same powers as if the decree had been passed by itself. So all matters distinctly relating to execution, discharge or satisfaction of decree can be determined by the transferee court executing the decree. [See A 1956 SC 359] :Section 46: Precepts: - The object is to enable the decree-holder to obtain an interim attachment when it is apprehended that he may otherwise be deprived of the fruits of his decree. A transferee court cannot issue precept. [A 1926 S 157] - The issue of a precept has not the effect of transfer of a decree for execution. The court receiving a precept has no jurisdiction to entertain an application under Order 21 Rule 2. [A 1959 MP 397]

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:Section 47: - The conditions necessary for application of this section are:- (1) the question must relate to the execution, discharge, or satisfaction, and (2) it must arise between the parties to the suit in which the decree was passed or their representatives. - All questions relating to execution, discharge and satisfaction of the decree shall be determined by the Executing court and not by a separate suit. [AIR 2002 SC 251] - The other purpose is to ensure that execution matters shall be dealt with by the executing court and so it has been given exclusive jurisdiction to determine such question stating clearly that a separate suit is barred. [33 CWN 795 (FB)] - The policy is that all questions covered by section 47 must be determined in execution and not by a separate suit. It prohibits not only a suit between the parties and their representatives, but also a suit by a party or his representatives against an auction purchaser, the object of which is to determine a question which properly arises between the parties to the suit or their representatives. [53 C 837] - The scope and ambit of section 47 C.P. Code is very wide whereas the scope of Order XXI, Rule 90 C.P. Code is limited to the extent of any material irregularity or fraud in publishing or conducting the sale. [AIR 1999 AP 51] :Subject matter of the decree: - If there is any dispute about the identity and substance of the subjectmatter of the decree nobody but the executing court can decide it. [A 1956 SC 359] - All objections as to the liability of a pro party to attachment and sale between parties to the suit and their representatives are matters coming within section 47. [A 1952 SC 170] - When sale in execution of decree is impugned on the ground that it is not warranted by the terms of the decree or it was held in contravention of the directions of the decree the question can be agitated only under Section 47 and not by a separate suit. [A 1956 SC 87]

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- As a result of the addition of the words or fraud in Order 21 Rule 90 applications for setting aside sales on the ground of fraud in publishing or conducting a sale have gone out of the scope of section 47 and can be made only under Order 21 Rule 90. But applications for setting aside sales on the ground of other kinds of fraud come under Section 47 e.g. fraud is not serving notice under Order 21 Rule 22. [14 CWN 560] - Limitation for an application under Section 47 is 3 years under Art. 181 Limitation Act. - Any matter relating to the execution of a decree for possession is governed by Order 21 Rule 97 and not Section 47. [A 1985 P&H 76] - The powers of court under section 47 are quite different and much narrower than its powers of appeal, revision or review. The exercise of powers under section 47 is microscopic and lies in a very narrow inspection hole. The executing court can allow objection under section 47 to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree in executable after its passing. [AIR 2001 SC 2552] - The executing court should decide the matter in a judicial manner by allowing the parties to lead evidence if they wanted. [A 1990 P&H 92] - In money decree the executing court has no power to grant instalments, as it would amount to converting the decree into an instalment decree at the stage of execution, which is not permissible. [AIR 2002 AP 37] :Objection as to execution: - Disputes as to execution of decree contemplates the existence of a valid decree. Where a decree is without jurisdiction or otherwise null and void it can be ignored by a person, his protest is not merely as to its execution but he impeaches the decree itself. Such a dispute is not within the purview of Section 47 at all. [A 1931 A 490] [CONTRA]
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- A objection that the decree under execution is a nullity and incapable of execution is one which can be raised in execution proceedings. It follows that the objection is one relating to execution of a decree, and it must be raised in execution and cannot be permitted to be raised in a separate suit. [A 1959 B 221] - Where on devolution of interest under Order 22 Rule 10 the successor in-interest are not brought on record and decree is passed against predecessors in interest, the decree is not ab initio void, objection cannot be allowed to be raised in execution proceedings that the decree is not executable. [AIR 2001 SC 2552] - Any decree passed in ignorance of legal bar about maintainability of a suit is a nullity. [A 1986 O 138] - When delivery of possession has been given by an executing court in execution of a void decree re-delivery of possession can be given by the executing court under section 47 read with section 151, whether the decree was completely satisfied and the court became functus officio being a matter relating to execution, discharge or satisfaction of a decree. [A 1961 SC 272] :Discharge or satisfaction of the Decree: - A compromise in execution intended to govern the liability under the decree and to have effect upon the time and manner of enforcement can be recorded under section 47 and enforced. [43 CWN 907] - Where the parties in a pending execution entered into a compromise that the judgement debtor would get a rebate on interest that the compromise was never intended to supersede or satisfy the existing decree but the terms merely provided a mode of executing the decree. [A 1961 PU 4391] - A compromise in execution stage may extinguish the decree and create a fresh lease or provide a mere mode for discharge of the decree depending on the intention of the parties. [A 1982 SC 813] - Where in execution a judgement-debtor pleads payment or adjustment

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the question falls within Section 47. Any amount determined in arbitration pending execution, can be set off against the decretal amount. [A 1987 SC 20]

:Parties to the suit: In order to determine whether parties to execution are parties within S. 47, governing factor is not whether the disputants were parties to the decree but whether they were parties to the suit in which the decree was passed. [A 1940 M 811] If a party was a proper party to the suit even though exonerated by the decree, he is still a party for the purpose of section 47. [A 1933 M 340] A party who is exonerated from the suit and against whom no decree has been passed is entitled to object under this section and ask for restoration when his possession is disturbed in execution. [A 1967 AP 277] To file an application under Order 21 Rule 101, the third party claiming right should be actually dispossessed in execution of the decree. While in possession he cannot file an application for the determination of his right to be in possession. [1996 AIHC 3832] Disputes between judgement debtor and auction purchases is not a dispute between parties. [A 1979 A 193] The expression parties to the suit means opposed to each other in the suit, but not necessarily as plaintiff and defendant, e.g. in partition suits defendants are often arrayed against each other. [24 MLJ 477] There should have been conflict in the suit between the parties. Where in a suit two defendants sailed together but in execution there is a conflict of interest and order are passed in favour of one against the other section 47 does not apply. [A 1967 MP 3]

:Explanation 1:

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- A defendant against whom a case is abandoned is still a party if his name has not been struck off. [41 M 418] - If his name is struck off, he ceases to be party. [1081 C 406]

:Representatives: - Section 47 does not apply when the dispute arises between a party and his own representative or between rival representatives of the same party. [A 1941 M 161] - Representatives does not mean representatives of a party of the execution proceeding but representatives of a party to the suit. [3 CWN 276] - It means not only the legal representatives in the sense of heirs, executors or administrators but includes any representatives in interest, i.e., any transferee of the interest of the decree holder or the judgement-debtor who is bound by the decree. [24 C 62 FB] - Tenant objecting to partition in execution of a decree is not a representative of any of the parties to the suit where tenancy commenced before the institution of the partition suit. [A 1966 A 528] :Section 47(3): - Section 47(3) is wide enough to include a dispute between two persons each of whom claims to be the decree holder. [A 1941 P 307] :Claim under Section 47 and claim under Order 21 Rule 58: - Objections to attachment or sale by a third party come under Order 21 Rule 58, and an order upon adjudication under amended Order 21 Rule 58 is a decree and appealable. He may also bring a regular suit without taking recourse to the provision of Order 21 Rule 58. When the property of a person who was not a party to the suit and against whom no decree was passed, is sought to be proceeded against in execution of the decree, his suit that the auction sale is not binding on
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him and for recovery of possession of the property is not hit by this section (47). [AIR 1993 SC 1628] - Whereas an adjudication in a claim under section 47 has now been rendered a non-decree and non-appealable because of the amended definition of decree under section 2(2), an adjudication in a claim under Order 21 Rule 58 has been appropriately made appealable as a decree because of the extension of the scope of inquiry. :Altered circumstance after Decree: - Where there are subsequent developments the executing court can permit amendment of the execution application or the relief portion therein so as to make it consistent with the relief he is entitled to get in the litigation; amendment cannot be refused merely on the ground that the decree of the trial court on the basis of which execution petition was originally filed has merged with the decree of the appellate court. [AIR 2002 Ker 74] :Limitation: - Objection under section 47 is governed by Art. 137 Limitation Act. [A 1956 SC 67] :Appeal: - An order determining any question under Section 47 not being a decree within Section 2 (2) of the C.P. Code, no appeal lies against it. Revision will be entertainable under Section 115 provided the conditions laid down by that section are satisfied. :Section 50: Legal Representative: - This section enables a decree-holder to execute his decree against his legal representatives when a judgement-debtor dies after decree. Death before decree is covered by the rule provided the decree is valid in spite of death. [A 1937 M 610] - Although the language of section 50 is permissible, if the decreeholder desires to execute his decree against the legal representatives of the judgement debtor, it is obligatory to apply under section 50 and to have notice issued under Order 21 Rule 22. [A 1936 M 205]

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- A decree against a dead person or against a person who died pending the suit without his legal representative being brought on record is a nullity and cannot be executed against the legal representatives [Section 38 anti] - But death of defendant after hearing and before judgement does not affect its validity (Order 22 Rule 6) and can be executed against his legal representatives. Death in this section refers to natural death and not civil death. [A 1935 C 713] - Generally speaking a decree in favour of a dead person is not a nullity although a decree against a dead person is a nullity. [A 1954 C 205] - The extent of representatives liability is limited to properties which actually come to his hands and not to what would have come but for his negligence or want of diligence. In the latter case the remedy is by a suit against the legal representative. [12 CWN 614] :Section 51: Power of court to enforce execution: ::Attachment:: :Section 60: - Modifications by CPC (Amendment) Act 1999 (w.e.f. 1.7.2002): In section 60 of the principal Act, in the first proviso to subsection (1), in clause (i), for the words four hundred rupees, the words one thousand rupees shall be substituted. This section has made the modification that the limit of exemption from attachment of the salary in execution of a decree has been raised from four hundred rupees to one thousand rupees. The object of the amendment is to increase the amounts taking into consideration the erosion in the money value. - This section declares property that are liable to sale and attachment and also states the exception. - The proviso to sub-section (1) is mandatory and there is no jurisdiction to sell even though no objection has been taken. [A 1930 A 707]

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- The exemptions in section 60 are based on reasonable and equitable grounds and they are applicable to attachment and sale by the Official Receiver under the Provincial Insolvency Act. [A 1960 AP 459] [This is contrary view in the case reported in A 1967 A 520] - Objection under section 60 falls under section 47 and can be raised at any time until the court becomes functus officio. [A 1935 A 1016]

:Debts: - Debt is money claim that has already become due though it may be paid on a future day, i.e. an actually existing debt or a perfected and absolute debt. [34 CWN 936] - In the case of a servant or employee engaged on a monthly pay, it becomes a debt when earned at the end of each month. When a person is engaged on a daily remuneration or fee payable at the end of a month (e.g. an advocate employed by Government on a daily fee) it becomes a debt after the days work and such remuneration or fees are liable to attachment though payable only at the end of a month. A debt in order to be attachable need not have become payable at once. [A 1939 P 77] [See Order 21 Rule 46: Attachment of Debt] :Clause (l): Salaries etc.: - Clause (l) has been amended by the CPC Amending Act, 1999, for the words four hundred rupees the words one thousand rupees, have been substituted. As a result of the amendment the limit of exemption from attachment of the salary in execution of a decree has been raised from four hundred rupees to one thousand rupees. - Salary means the total monthly emoluments whether on duty or on leave excluding any allowance that may be declared under clause (1) [Explanation 2]. - As regards allowance, only notified allowances of servants of Government etc. are exempted [Vide Cl. (l)] [Note:

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- Order 21 Rule 48 governs the procedure for attachment of salary or allowance of servants of the Government or Railway or Local authority, and new Order 21 Rule 48A has made special procedure for attachment of salary or allowance of private employees.] - Exemption in regard to stipends and gratuities allowed to pensioners of Government has also been extended to pensioners of all employers [Vide Clause (g)] - The wages of labourers or domestic servants payable in money or in kind are totally exempt from attachment whatever the amount may be. [Clause (h)] Attachment of salary, beyond 24 months is not permissible. [AIR 1999 Bom 424]

:Clause (k): [Provident Funds]: - The definition in Section 2 (a) P.F. Act is clear that the amount not paid to the subscriber after retirement is also a compulsory deposit. It cannot be assigned or charged and is not liable to attachment. It is also exempt from attachment and sale under section 60 (k). - Provident Fund money retains that character so long as it is in the hands of the Government or Railway. But once it is paid out it can be attached. [50 C 347] - Advance taken from Provident Fund which is being recovered monthly from pay is not deposit and it cannot be deducted from salary available for attachment. [AIR 2001 Ker 19] :Clause 1 (kb): - Money payable under Life Insurance Policy is entirely exempted from attachment. [A 1986 B 101] Part III :Commissions: :Section 75: - This section states the general powers of a court in regard to issue of commissions; Order 26 rules 5 18 also contain some general provisions.
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- Commissions to examine witness (Order 26 rules 1 8); for local investigation (Order 26 rules 9 10); for scientific investigation, performance of ministerial act and sale of movable property (Order 26 rules 10A, 10B and 10C); to examine accounts (Order 26 Rules 1112); to make partitions (Order 26 Rules 13 14); detention, preservation, inspection of property (Order 39 Rule 7). - Section 75 empowers the court to issue a commission for purposes specified therein, even though it is not so expressly stated that there is no power to appoint a commissioner for other purposes, a prohibition to that effect is implicit in Section 75. [See A 1962 SC 527] - The power of the court to issue commission is essentially discretionary and it cannot be interfered with on the ground that the witnesses cannot be effectively cross-examined or that their examination will involve heavy costs. It is also irrelevant whether the witnesses would appear before the commissioner or not. [A 1971 SC 61] - Section 107 (2) read with section 75 empowers the appellate court to issue commission. [A 1932 A 270] - The Commissioners report should not be rejected except on clearly defined sufficient grounds. [A 1979 C 50] Part IV :Section 79:: Suits by or against Government: - The Government of India may sue or be sued by the name of the Union of India and the Government of a state may sue or be sued by the name of the state. (See Art. 300 Constitution) - It is not necessary that the specific department of the Government should be impleaded as a necessary party in the suit filed against the Central Government or the State Government under the principle of respondent superior Union Government or the respective state Government are liable. [AIR 2001 Gau 178 (DB)] - When the suit relates to Health Department the state should be served through the Health Secretary. [A 1990 P&H 252]
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- This section only lays down the procedure for suit on the accrual of cause of action. The words carry on business apply to the Government and in the running of railways the Government carries of business whether it yields profit or loss. [ A 1963 SC 1681] - In suits against Railway administered by the Government summons or notice of suit is to be served on the General Manager. [A 1956 P 511] - A suit against Railway Administration must be instituted against the Union of India. [A 1965 K 277 FB] [A 1976 SC 2538] :Section 80: - Notice must furnish requisite basis on which claim was founded. [A 1982 A 168] - As regards the Government, previous notice is necessary in all kinds of suits, but in the case of a public officer it is necessary in those only where any wrong is done by him in his official capacity. So far as suits against Government are concerned they cannot be validly instituted without giving the required notice. In case of public officers the section applies only to suits in respect of any act purporting to be done by a public officer and that in his official capacity. [A 1969 SC 277] - The plaintiff must state in the plaint that notice under section 80 has been given and served in writing indicating the cause of action, name and description of the plaintiff and the reliefs claimed. [2001 (1) CCC 494 (Kant)] - It is now settled that notice to Government is also necessary where the part or the whole of the relief claimed is an injunction. The section is applicable to all forms of action and kinds of relief. It is express, explicit and mandatory. [Vide A 1963 SC 424] - If the provisions of this section are not complied with the plaint must be rejected under Order 7 Rule 11 (d) and the court cannot stay proceedings and allow the plaintiff time to serve notice. [See A 1965 SC 11] :Distinction between section 79 and section 80: - Section 79 covers the subject of the authorities which are to be named in a suit filed by or against the Central or State Government. Section
80

80, on the other hand, is not a procedural provision, and unlike section 79 it falls in the category of a substantive provision. It interdicts institution of suits unless compliance is made with its provisions when the suits arise out of causes of action against certain Governments. [A 1975 Gau 37] :Notice not a part of cause of action: - Notice is not a part of the cause of action although it is a condition precedent. The place from which notice is issued or sent cannot give the court of that place jurisdiction. [A 1960 C 391] :Contents and object of notice: - In each case the court must see whether the following imperative provisions are present: (i) whether the name, description and residence of the plaintiff are given for enabling identification of the person; (ii) whether cause of action and relief are set out with sufficient particularity; (iii) whether the notice has been delivered to or left at the office of the appropriate authority; (iv) whether the suit is instituted after the expiry of two months and the plaint contains a statement that the notice has been so delivered or left. [A 1965 SC 11] :Computation of limitation and the statutory: - In computing limitation, the period of two months shall be excluded [See Section 15 (2) Limitation Act] :Sub-section (2) [Urgent Relief]: - Section 80 (2) is in the nature of an exception to section 80 (1). It has been introduced with a view to entertain suits where urgent or immediate relief is required to be given. [AIR 1998 Ori 45] - Under section 80 (2), for obtaining urgent relief suit can be filed with the leave of the court without serving section 80 notice, but no exparte injunction or ad interim relief can be granted without affording reasonable opportunity to the Government section 80 is mandatory. Section 81
81

:Interpleader: :Section 88: - In an interpleader suit the real dispute must be between the defendants only and the plaintiffs position must be one of impartiality. Where defendants do not claim adversely to each other, nor does the plaintiff admit the title of one of the defendant or is willing to pay or deliver the property to him, the suit is not interpleader. [A 1922 C 138] - Nor is a suit interpleader when plaintiff has any interest in the subjectmatter or is in collusion with one of the claimants. [A 1952 M 564] - The party filing an interpleader suit should be in a position to walk out of the suit with a mere claim for costs. [A 1938 C 287] - Where consigned goods are claimed by several parties, the railway can bring an interpleader suit claiming only a lien for freight, demurrage etc. [18 B 231] :Appeals: :Section 96: Appeal from original decrees: - There is no definition of Appeal. Any application by a party to an appellant court asking it to set aside or revise a decision of a subordinate court is an appeal. [36 CWN 803] - The right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of a court below. [AIR 1970 SC 1] - Section 96 expressly gives a right of appeal from every decree [Section 2 (2)] first by any court exercising original jurisdiction unless such right is denied by any other law for the time being in force (e.g. decision of Small Causes Courts decision under Section 6 Specific Relief Act, 1963 etc.) - It is equally well settled that a right of appeal inherits in no one and therefore an appeal for its maintainability must have the clear
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authority of law and that explains why the right of appeal is described as a creature of statute. [A 1974 SC 1126] - The right of appeal is not a mere matter of procedure but is a substantive and vested right to be governed by law prevailing at the date of the suit and not by the law that prevails at the date of the decision or at the date of filing of the appeal. The vested right of appeal can be taken away only by a subsequent enactment if it so provided expressly or by necessary implication. [A 1957 SC 540] - An appellate court is entitled to take into consideration subsequent events taking place during pendency of appeal and a court in appropriate case permits amendment of a plaint or written statement as the case may be but such amendment is permitted in order to avoid multiplicity of proceedings and not where such amendment causes prejudice to the plaintiffs vested right rendering him without remedy. It is thus only those events which have taken place or rights of parties prior to adjudication of the suit and which the trial court was entitled to dispose of, can only be taken into consideration by the appellate court. [(2001) 8 SCC 24] - An appellate court is entitled to taken into account legislative changes since the decision under appeal was given and the appeal may be heard and determined on the basis of an enactment passed only during the pendency of the appeal. [45 CWN 66] :Agreement not to appeal, consent or waiver: - Parties cannot by agreement take matters in controversy to appellate court. [17 CLJ 605] - Inherent went of jurisdiction to entertain appeal cannot be cured by consent or waiver. [A 1962 C 635] - A right of appeal may be given up by agreement. But a mere agreement to dispense with certain rules of procedure or evidence does not deprive the parties of the right of appeal. It depends on the facts of each case. An agreement to abide by the decision of court without any evidence amounts to an abandonment of right of appeal. [1949 M 267]
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[Note: - An appeal lies from the decree and not from the judgement although the word decisions appears in sub-section (1). [A 1961 SC 832] - There can be no appeal unless a formal decree is drawn up and if the court refuses to draw up a decree, the matter can be set right in revision. [A 1943 N 204] - But rule 6A of Order 20 inserted by 1976 Amendment Act enables a party to file an appeal with the last para of judgement if no decree is drawn up within 15 days with a certificate obtained from the court to this effect on making an application to the court. :An appeal is appeal is a continuation of the suit: - An appeal is a continuation of the proceedings of the original court and is in the nature of a rehearing. The appellate court has the powers and duties of the first court. [39 M 195] - The only difference between a suit and an appeal is that an appeal only reviews and corrects the proceedings in a case already constituted but does not create the cause. As it is intended to interfere in the cause by its means, it is part of it, and in connection with some matters and some statutes it is said that an appeal is a continuation of a suit. [A 1966 SC 1423] :Who can appeal?: - Section 96 does not enumerate the persons who can file and appeal under this section. It is however fundamental that in order to be entitled to file an appeal the person must be aggrieved against judgement. A party which would benefit from the change in judgement is said to have an appealable interest. However the interest should not be contingent, speculative and futurative. It must be substantial, immediate and pecuniary. [A 1976 A 121] - In order to be entitled to file an appeal as an aggrieved person he must have a legal grievance which might have deprived him of the benefit in case the judgement had gone the other way. [A 1971 SC 385]
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- To enable a person to appeal (1) he should be a party to the suit or legal representative; (2) he should have an interest in the subject matter of the suit; (3) he should be prejudicially affected by the decree. [11 CLJ 580] - If a decree adversely affects a decree-holder and negatives a part of his claim he can appeal against that part of the decree. [A 1969 J&K 25 FB] - It is well settled that a person who is not a party to the suit may also prefer an appeal with the leave of the appellate court, and such leave should be granted if he would be prejudicially affected by the judgement. [A 1971 SC 374] - Though under the strict letter of the provisions in the Code relating to right of appeal no appeal lies by a party in whose favour a decree has been passed against a finding contained in the judgement, he has a right to appeal against a finding adverse to him provided that it would operate as res judicata in a subsequent suit or proceeding. [62 C 701] - [See amendments made in Order 41 rule 22 (1) Explanation inserted by 1976 Amendment Act. The defendants respondents in the appeal are entitled to challenge the finding of the trial court on any issue even though they have not filed any cross objection. [A 1985 P&H 238] :Merger of order appealed against in the Appellate order: - The general principle that the order appealed against merges in the appellate order and the appellate order is the only effective and enforceable order is not unqualified in its application. It can have no application in a case where the question could not form part of the proceedings before the appellate authority and in which the appellate authority could not have passed an order sought to be made by the revising authority. [See A 1958 SC 868] - The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the
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decree or order under challenge continue to be effective and binding nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lie before it either way whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or authority below. [AIR 2000 SC 2587] :Distinction between Appeal and Revision: - An appeal is a continuation of the proceedings, in effect the entire proceedings are before the appellate authority which has power to review the evidence subject to the statutory limitations prescribed. But in a revision, the revisional authority has not the powers to review the evidence unless expressly conferred by a statute. It cannot travel beyond the order passed or proceedings recorded by the inferior authority and make fresh enquiry and pass orders on merits on the basis of the said enquiry. [A 1965 SC 1585] - The High Court can convert an appeal into a revision when the court whose order is appealed against has illegally exercised its jurisdiction. [1998 AIHC 2836] :: Sub-section (3) Consent Decree:: - Sub-section (3) is based on the broad principle of estoppel. It presupposes that the parties to an action can expressly or by necessary implication waive or forego their right of appeal by any lawful agreement or compromise or even by conduct. [A 1974 SC 1069] - When there is a partial compromise and adjustment of the suit by a lawful agreement and a decree is passed in terms thereof, the decree to that extent is consent decree and it is not appellable because of the express bar in sub section (3). [A 1974 SC 1069] - A compromise decree is appellable where the validity of the compromise is disputed. [2000 All LJ 337] - An appeal lies under section 96 read with Order 43 Rule 1-A against recording of a compromise by the trial court provided the compromise

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is not lawful. Therefore, in such a case a revision does not lie against the order. [A 1985 MP 171] - If a party desires to have a consent decree set aside on ground that consent was obtained by coercion his proper remedy lies in a separate suit, appeal, application under Order 47 Rule 1, Section 151 and Section 152 being not sustainable. [A 1970 P&H 176] :: Section 100: Second Appeal:: - It restricts the scope of second appeals so that litigation may not drag on for a long period by confirming the right of second appeals only to cases where a question of law is involved and the question of law so involved is substantial. - Read with Section 101, section 100 expressly bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial. - Although no second appeal can be preferred except upon a substantial question of law, when such an appeal is before the High Court it may determine any issue necessary for disposal of appeal, if the evidence on record is sufficient for such determination which issue the lower appellate court or the court of first instance or both either failed to determine, or determined wrongly by reason of a decision on the substantial question of law involved in the case (See Section 103). - No court has power to add or enlarge the ground specified i.e. section 100 i.e. the only ground that the case shall involve a substantial question of law, on any consideration whatsoever including requirements of justice. [Vide A 1959 SC 57] - Abatement of appeal for non-substitution being not a decree second appeal does not lie. [A 1983 SC 676] - In second appeal the court cannot normally enter into question of facts. However, to decide the appeal in proper perspective the court may have to enter into facts. [AIR 1999 Sikkim 11] - The principle that the decree passed by the trial court merges in the decree of the appellate court applies to second appeal also. [A 1985 Pat 49]
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- The High Court cannot proceed to hear a second appeal and if it does so it acts illegally and in abrogation of the duty cast on court. [AIR 2001 SC 965] - To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. [AIR 2001 SC 965] - For determining whether a case involves a substantial question of law, the test is not merely the importance of the question but its importance to the case itself necessitating a decision of the question. If the facts of the case depend upon a consideration of that point, it will be deemed to be involved. [A 1944 A 273 FB] - The proper test for determining whether a question of law involved in a case is substantial for the purpose of appeal from High Court to the Supreme Court is (1) whether it is of general importance or whether it directly or substantially affect the rights of the parties, and if so (2) whether it is an open question in the sense it is not finally settled by the Supreme Court, Privy Council or Federal Court or is not free from difficulty or calls for discussion of alternative views [A 1962 SC 1314] - The existence of a substantial question of law is the sine qua non for the exercise of the jurisdiction under this section. Where no pure question of law or even or mixed question of law and fact was urged before the trial court or the first appellate court, a second appeal cannot be entertained. [AIR 1997 SC 1047] - Substantial question of law is that question of law which has to be resolved for deciding the main issues involved in the case. [AIR 2000 SC 3408] :Mixed Questions of Law and Fact Legal Effect of facts found is a Question of Law: - Question depending upon influence to be drawn from facts and surrounding circumstances is not purely factual but relating to propriety of legal conclusion that could be drawn on basis of proved facts. [A 1979 SC 867]

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- Whether possession was adverse is often a question of fact, but it might also be a question of law or a mixed question. [19 C 253] - Though the High Court has no jurisdiction to interfere with findings of fact, it is its duty to carefully disentangle the findings of fact from the legal inferences which may be drawn from these facts and to consider whether such inferences are justified by the facts found. [A 1938 P 413] ::Section 104: Orders from which appeal lie:: - This section should be read with Order 43 Rule 1 - The provisions of sections 96, 100, 104 (1), 105 read with Order 43 Rule 1 show that an appeal lies only as against a decree or an order passed under rules from which an appeal is expressly allowed by Order 43 Rule 1. [A 1974 SC 1126] - No appeal lies from an order unless it is expressly provided under Section 104 or Order 43 and in any event no second appeal lies. [A 1969 AP 239 F.B.] - The words save as otherwise expressly provided in the body of this Code refer to other express provisions in regard to appeals from orders e.g. rejection of a plaint under Order 7 Rule 11 and determination of any question within Section 144 [Vide S. 2(2)] [1995 (8) JT 559] :Clause (h): - See Order 16 rules 10, 12, 17, 21; Order 26 rule 17 Order 39 Rule 2A - It may that order under Order 39 Rule 2A has been made expressly appellable under Order 43 rule 1 (r). - When a party violates an injunction giving rise to an application under Order 39 Rule 2-A(1) and the order on that application is appealable. Section 105: Other orders i.e. orders against which no appeal lie - The first part of sub-section (1) reiterates that no appeal shall lie from any order unless such right is expressly given by the code (e.g. S. 104 and Order 43 rule 1); but even if an interlocutory order be appealable, a party is not bound to prefer an appeal at once, and under the second
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part when he appeals against the decree after final decision he can make any error, defect or irregularity in the order, affecting the decision of the case, a ground of objection in the appeal. The words in any order in sub-section (1) indicate that even in the case of an appealable order, provided that it affects the decision of the case, either an appeal can be filed straightway, or it may be attached in an appeal from the final decree except in the case of an appealable order of remand. [A 1957 Raj 367] - The latter part of sub-section (1) means that although an interlocutory order may not be appealable as such, its correctness can still be challenged in an appeal from final decree. - An interlocutory order confirmed by High Court in revision under section 115 operates as res judicata in subsequent regular appeal and hence it is not open for attack in the appeal under the provisions of section 105. [See A 1960 SC 941] ::Sub-section (2): [Appeal from order of Remand]:: - It is an exception to the rule under sub section (1). An order of remand under Order 43 Rule 23 is appealable under [Order 43 rule 1(u)] but if a party aggrieved by such an order does not appeal therefrom, he is precluded by the sub section from disputing its correctness when subsequently appealing from the decree in the suit. The policy is to give finality to orders of remand. [A 1970 SC 997] Reference, Review and Revision :: Section 113: Reference to High Court:: - [For detailed procedure, See Order 46 rules 1 7] - Reference under Order 46 Rule 1 on any question of law is not competent unless the court trying the suit or appeal entertains a reasonable doubt about it. [A 1952 Pepsu 1 FB] or unless determination of the point of law is essential for disposal of a pending case. [A 1970 AP 365]

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- When all the following conditions: (1) a question as to validity of any Act, Ordinance or Regulation, or any provision therein arises in a case before the court; (2) the court is of opinion that the same is invalid or inoperative; (3) same has not till then been declared invalid by the High Court to which the court is subordinate or by the Supreme Court, and (4) the determination of the validity thereof is necessary for the disposal of the case, are satisfied the court is bound to make a reference to the High Court, under this proviso setting out its opinion and the reason for it. [A 1971 C 368] - Where a determination of the validity of a particular Act or section is not necessary for the disposal of the case in hand, a reference is incompetent. Also where the court does not express its opinion on the validity of the Act in question, the reference is not proper. [A 1953 Hyd 52 F.B.] ::Section 114: Review:: [For the detailed procedure see Order 47] A decree or order from which an appeal is allowed but where no appeal has been filed can be reviewed. [AIR 2002 SC 1402] Where certain provision of law was not brought to the notice of the court while passing order dismissing the execution petition, review was permissible. [1999 AIHC 2023 (AP)] In review the court can only consider the errors apparent on the face of record in its judgement. [AIR 2001 Gau 92] Non-consideration of provisions of any amending Act is an error analogous to apparent on the face of record in which case review is competent. [A 1986 B 308] Mere erroneous decisions are not liable to be reviewed and only errors apparent on the face of the record are liable to be reviewed. [A 1989 Bom 91] In order to come to a conclusion that there is a mistake or error apparent on the face of the record, it must be one which must be manifest on the face of the record. The error or mistake be so

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manifest, so clear, that no court would permit such an error or mistake to remain on the record. [AIR 1994 Gau 37] - Where the correctness of the statement of a fact in a judgement about an event which took place before the court is disputed by one of the parties, it cannot be challenged before the appellate court. It can only be done by a review petition before the same court. [AIR 1994 NOC 331 (Raj)]

::Section 115: Revision:: For the effective exercise of High Courts superintending power and visitorial powers over subordinate courts, this revisional jurisdiction has been conferred on the High Courts by section 125; the powers given are clearly limited to the keeping of the subordinate courts within the bounds of their jurisdiction. [A 1964 SC 497] It is a part of the general appellate jurisdiction of the High Court though jurisdiction is strictly restricted by the terms of section 115 investing it. [A 1970 SC 1] Though revisional jurisdiction is only a part of the appellate jurisdiction, it cannot be equated with that of a full-fledged appeal. [AIR 2002 SC 108] The scope of revisional jurisdiction under section 115 is restricted and it is only where there is a jurisdictional error or illegality or material irregularity in the exercise of jurisdiction that the High Court can interfere. [A 1975 SC 818] It is well-settled that the High Court while considering the matter in exercise of its jurisdiction in second appeal or civil revision would not reverse the finding of fact as recorded by the courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view.
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[(2002) 2 SCC 440] - Besides failure or acting in exercising jurisdiction illegally or with material irregularity the Court has to be satisfied that the order would occasion a failure of justice or an irreparable injury would be caused. [A 1982 P 172] - Where a person availed the remedy by filing a revision petition to the District Court under Section 115-A (as amended by the State Government) he cannot file any revision petition before the High Court under this section. [1996 AIHC 3116 (Cal)] - The High Court can pass an order for temporary injunction in its revisional side. [A 1947 M 390] ::Exercise of the power under Section 115 is broadly subject to following conditions:: - (1) That the decision must be of a court subordinate to the High Court. - (2) That there must be a case decided by a subordinate Court. Case is not restricted to a suit in a civil court but includes any proceeding in a civil court in which jurisdiction of the court is invoked for the decision of some claim or right legally enforceable. Again, the case decided does not mean a concluded suit or proceeding but each decision which terminates a part of the controversy, i.e. case decided includes an interlocutory order adjudicating some right or obligation of the parties in controversy. [(1970 SC 406), see also Explanation which now statutorily included an interlocutory order in the expression case decided] - (3) No appeal must lie either to the High Court or to any lower appellate court against the decision (vide sub-section (2)] - (4) In deciding the case, the subordinate court must appear to have (a) exercised a jurisdiction not vested in it by law, or (b) failed to exercise a jurisdiction vested in it by law, or (c) acted in the exercise of its jurisdiction illegally or with material irregularity. The High Court exercising the revisional power under Section 115 CPC is in its very nature a truncated power. The width of the powers of the revisional court cannot be equated with the powers of the appellate court. In examining the legality and the propriety of the order under challenge, what is required to be seen by the
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High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence for where the inference drawn from the facts proved is such that no reasonable person could arrive at or the like. It is only in such situation that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. [AIR 2002 SC 1373] - The position is firmly established that while exercising the jurisdiction under Section 115 it is not competent to the High Court to correct error of fact, however gross, or even error of law unless the said errors have relation to jurisdiction of the court to try the dispute itself. The words illegally or with material irregularity do not cover either error of fact or of law, they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated relate either to breach of some provision of law or material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. [A 1971 SC 2324] (5) In regard to interlocutory orders, which are now statutorily included in the expression case decided (See Explanation), in addition to above four conditions, such an order to be revisable must further satisfy either of the two conditions mentioned in clause (a) and (b) of the proviso to this section. So the High Court will now have to advert to those further limitations on its power of interference under Section 115 in regard to interlocutory orders. Interlocutory orders can be challenged in revision if there is failure of justice or has caused irreparable injury even it can be challenged in appeal under Section 105. [A 1984 Raj 1] Clause (a) will operate when decisions on pleas like the suit being barred by res judicata or being not maintainable under the provisions of law, is barred by limitation, estoppel, waiver, acquiescence etc. are decided against parties raising the pleas; and Clause (b) will operate in cases where if the order is not challenged immediately and set aside and if the error is left to be corrected in the appeal from the final order when such an appeal is taken, intermediate
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proceedings will all be on erroneous basis and irreparable hardship and injustice would be caused. - For entertaining a revision the conditions stipulated under proviso (a) and (b) of sub-section (1) are not required to co-exist. If any of the conditions enumerated either under proviso (a) or under proviso (b) is satisfied the revision would be maintainable. [A 1996 Raj 111]

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::Section 144: Application for restitution: - The principle of doctrine of restitution is that on the reversal of a judgement or order the law raises an obligation on the party to the record, who received the benefit of the erroneous judgement or order, to make restitution to the other party for what he had lost and it is the duty of the court to enforce that obligation unless it is shown that restitution would be clearly contrary to the interests of justice. [1953 SC 136] - Doctrine of restitution is based on equitable principle. It does not apply to writ proceedings. [AIR 1994 SC 101] - The obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under erroneous decree and the court in making the restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the court by its erroneous action had displaced them from. [A 1966 SC 948] - In order that Sec. 144 may apply to a case three conditions are necessary to be satisfied. They are: (i) the restitution sought must be in respect of a decree or order which had been varied or reversed; (ii) the party applying for restitution must be entitled to the benefit under a reversing decree or order; and (iii) the relief claimed must be properly consequential on the reversal or variation of the decree or order. [A 1976 AP 46] - The word may in the section is empowering and not discretionary.

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[39 CWN 377] ::Section 148A: Caveat:: - (1) The object is to safeguard the interest against an order that may be passed against a person who may not be a necessary party but may be affected by the order that may be passed in a suit or proceeding. The application must be substantive and the person who may be affected may file the caveat. No form having been prescribed it may be in the form of a petition specifying the nature of the application made or expected to be made and his right to oppose the application. [A 1978 C 492] - Provisions of Section 148A can be applied to appeals, first, second, execution or any other appeal filed under CPC or any other enactment. [A 1987 A 360] - When a party files caveat, the court has to give an opportunity of hearing to them if it has to pass an order which would go against them. If the court rejects the caveat, it cannot pass an adverse order against the caveators. [AIR 1994 Gau 34] ::Section 151: Saving of inherent powers of court:: - The section merely furnishes legislative recognition of an age-old and well established principle that every court has inherent power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the court. It is not to be capriciously or arbitrarily exercised. [3 CLJ 29] - The inherent power of a court is in addition to and complementary to the powers expressly conferred under the code. But that power will not be exercised if its exercise is in consistent with or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, that give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of section 151 they do not control the undoubted power of

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the court to make a suitable order to prevent the abuse of the process of the court. [A 1966 SC 1899] - It is well-settled that the provisions of the Code are not exhaustive

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