LL.

B PART III: CIVIL PROCEDURE CODE NOTES

Civil procedure code lays down the procedure, which the courts of civil jurisdiction have to
follow.
The procedural law is framed to provide the courts a uniform and unquestionable procedure to
avoid diversity in dealing with civil cases.
The object of the code is clear from its preamble, the code intended to consolidate and amend the
laws relating to the procedure of civil courts .
The code, being a general law, in case of conflict between the code and special law, the latter
prevails over the former.
It can be concluded that civil procedure code as a civil law describes the formation of civil
courts, its procedure, classification, powers and discretion of the judges.
==================================================
==================================================
======================================
PLEADING
---------------------Pleadings are statements in writing of each party containing contentions of each party and detail
of his case . Pleadijnd is defined in order 6 of the code of civil procedure as plaint or written
statement.
PLAINT
------------------Plaint is the statement of claim in writing and filed by the plaintiff, in which he sets out his cause
of action with all necessary particulars. Plaint is the first process in inferior court in the nature of
an original writ, whereby a party seeks remedyfrom court for the redressal of his grievances.
WRITTEN STATEMENT
----------------------------------Written statement is the statement of defence in writing and filed by the defendent, in which he
deals with every material fact alleged by the plaintiff in the plaint.
Defendant can state any new facts, which he considers to be in his favour, and cn raise legal
objections to the merits of the case, prescribed by various lawse.g plea of limitation , plea of
estoppel, plea of res-judicata etc.

REJOINDER.
-------------------------------Rejoinder means answer of the plaintiff, which he gives keeping in view new facts alleged by the
defendant in written statement.
ADDITIONAL WRITTEN STATEMENT
.................................................. ......................
It means further answer of the defendant, ( if court permits) which he gives in light of rejoinder.
OBJECT OF PLEADING:
------------------------------------------------------------The object of pleading is to bring the parties to an issue and purpose of the rules relating to
pleading is to prevent the issue beig enlarged. Further that the parties themselves know what are
the matters in dispute and what facts they have to prove at the trial.
WHAT SHOULD A PLEADING CONTAIN
-------------------------------------------------------------Every pleading shall contain and contain only, a statement in a concise form of the material facts,
n which the party pleading ( plaintiff or defendant) relies for his claim or defence, as the case
may be.
IT shall not contain, the evidence by which they are to be proved, and it shall, when necessary,
be divided into paragraphs, numbered consecutively.
Dates, sums and numbers shall be expressed in figures.
General rules of pleading
==================================
In civil procedure code order 6 deals with pleadings in general, order 7 deals with plaint, and
order 8 deals with the written statement. The following is the summary of the rules comprised in
orders 6,7, and 8 of civil procedure code:
1. In pleading state your whole case, in other words set forth in pleading all material facts on
which you rely for your claim or defence , as the case may be.
2. In pleading state facts and not the law, if any matter of law is set out inj your opponent's
pleading, do not plead to it.

3. In pleading state only the relevents facts on which you rely, and not the evidence by which
tose facts are to be proved.
4. In pleading state material facts onlyand ommit immaterial and unnecessary facts, and do not
plead to any matter which is not against you.
5.In pleading, state the facts of the case concisely, but with precision.
6. It is not necessary to setout the whole or any part of the document, unless the precise words
thereof necessary, it is sufficient to state the effects of document as briefly as possible.
7. It is not necessary to allege any matter of fact which the law presumes in your favour or as to
which the burden of proof lies upo your opponent party.
8. The party should not plead conclusion of law in pleading.
9. Legal pleas such as estoppel, limitation and resjudicata or res subjudice etc, may be pleaded in
written statement.
10. In cases where the party pleading relies on any mis representation, fraud, breach of
trust,wilful default, or undue influence , particulars shall be stated in the pleading.
==================================================
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ISSUES
------------------------------------------========================
========================
Issues are points of contest between the parties in a suit . In other words issues are those points
raised from the pleadings which se a way for the court for entertaining a case and it brings the
court at the right conclusion of justice. The determination of issues has great importance in the
trial of a case, because it is issues and not the pleadings, which indicates the appropriate evidence
to be given. Pleadings constitutes allegations to one-side or the other, and after determination
which of the allegations are material for the purpose of the trial and which of them are admitted
or denied, issues are framed and on the basis of these issues the parties stand the test of the trial.
The object of settlement of issues is to determine the material points in controversy between the
parties.

Issues arises when a material proposition of fact or law affirme by one party and denied by other
party.
Issues , whether raised from allegations in the pleadings or from other materials, should not be
inconsistent with pleadings, the court is bound to frame the proper issues arising from the
pleadings.
FRAMING OF ISSUES:
========================
========================
According to order 14 rule 1, issues arise when a material proposition of fact or law is affirmed
by one party and denied by the other. Material propositions are those propositions of law or fact
which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to
constitute his defence.
Each material proposition affirmed by one party and denied by the other shall form the subject of
a distinct issue. At the first hearing of the suit the court shall, after reading the plaint, and the
written statements, if any, and after such examination of the parties as may appear necesssary,
ascertain upon what material propositions of fact or of law the parties are at variance, and shall
thereupon proceed to frame and record the issues on weich the right decision of the case appears
to depend.
If the defendant at the first hearing of the suit makes no defence, then according to order 14 rule
1 , nothing in this rule requires the court to frame and record issues.
OMISSION TO FRAME ISSUES
============================
If an issue is not framed in the suit, while an allegation was made in the plaint in-respect of
certain facts and challenged in written statement, the court can allow the parties to lead the
evidence on such point, and would give its decision without framing that issue.
KINDS OF ISSUES:
===============================
1-- ISSUES OF FACT:
Issue of fact means any issue, which has not been determined, by a rule of law, but is to be
answered, in accordance with the evidence laid before the court.
2-- ISSUES OF LAW

Issue of law means that issue, which is to be answered in accordance with the law, and not in
accordance with the facts or evidences that is laid before the court.
According to order 14 rule 2, " where issues both of law and fact arise in the same suit, and the
court is of the opinion, that the case or any part thereof may be disposed of on issues of law only,
it shall try those issues first, and for that purpose may if it thinks fit, postpone the settlement of
the issues of fact untill after the issue of law have been determined".
MATERIALS FROM WHICH ISSUES MAY BE FRAMED:
==================================================
The provision regarding the materials from which issues are framed is found in order 14 rule 3,
which provides that " the court may frame issues from any of the following materials :1. The court may frame issues from the allegations made on oath by bthe parties, or by any
persons present on their behalf or made by the pleaders of such parties.
2. The court may frame issues from the allegations made in the pleadings or in answers to the
interrogatories delivered in the suit.
3. The court may frame issues from the contents of the documents produced by either part ".
POWER OF COURT TO AMEND AND STRIKE-OUT ISSUES.
================================================== =
The power of the court to amend and striking-out of issues is mentioned in order 14 rule 5, which
provides that, " The court may at any time before passing a decree amend the issues or frame
additional issues as may be necessary for determining the matters in controversy between the
parties shall be so made or framed. The court may also, at any time before passing a decree,
strike-out any issues that appear to it to be wrongly framed or introduced.

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Res-judicata:
===============================
The doctrine of Res-judicata is enunciated in section (11) of C.P.C is in the following words:
According to section (11), "No Court shall try any suit or issue in which the matter' directly and
substantially has been
directly and substantially in issue in a former suit between the same parties, or between parties
under whom they or any
of them claim, litigating under the same title, in a Court competent to try such subsequent suit or
the suit in which such
issue has been subsequently raised, and has been heard and finally decided by such Court."
Res-judicata Meaning:
===============================
Res-judicata technically means that a matter in issue which has already been tried by competent
Court, then trial
between the same parties in-respect of the same matter shall not be allowed. Res-judicata is very
important doctrine of
C.P.C, it emphasis that a subject matter of the suit which has already been decided, is deemed to
be decided forever,
and can't be reopened by the same parties. The rule of Res-judicata is based upon the principle
that no person should

be vexed twice for the same cause of action, and the interest of the State behind this principle is
that, there should be an
end to litigation.
Object of Res-judicata
================================
The object of Res-judicata is to prevent a question which has already been decided to be reagitated. A question finally
decided at one stage of a proceeding cannot be re-agitated between the same parties or their
representatives at a
subsequent stage.
Kinds of Res-judicata:
==================================
There are two kinds of Res-judicata namely; Actual Res-judicata and Constructive Res-judicata.
Actual Res-judicata:
=================================
It means a matter actually resolved by Court, between the parties in earlier suit cannot be
reopened through subsequent
suit. In-other words an issue has been alleged by one party and either denied or admitted,
(expressly or impliedly) by
other party in earlier suit, second suit in respect of the same matter can not be filed, and if any is
filed, the same would be
hit by actual Res-judicata.
Constructive Res-judicata:
==================================
It means a matter which might and ought to have been made ground of claim or defense in a
former suit, but a party

ignores it, then that issue shall be deemed to have been a matter directly and substantially in
issue in such suit. In other
words if a party had an opportunity that he ought to have taken a plea (as a plaintiff or defendant)
if he fails to do so, and
the matter is decided, the decision will operate as Res-judicata in-respect of all issues, which
were taken, and which
ought and might have taken/ and second suit would not lie for such issue.
Essential conditions of res-judicata:
=====================================
For applicability of Res-judicata the following conditions must be present:
1. A previous suit in which the matter in issue directly and substantially should have been
decided.
2. A competent Court of Civil jurisdiction should have decided it.
3. It should have been decided on merits and final decision should have been made after hearing.
4. It should contain directly and substantially same matter in issue.
5. It should have been contested between the same parties or their legal representatives, such
parties are indulging
litigation under the same title, with respect to the same cause of action.
If these conditions are fulfilled then subsequently/further instituted suit shall be liable to be
dismissed by application of
doctrine of Res-judicata.
Res-subjudice:
==========================
The doctrine of Res-subjudice is contained in section (10) of C.P.C in the following words:
According to section (10), No
Court shall proceed with the trial of any suit in which the matter in issue is also directly and
substantially in issue in a

previously instituted suit between the same parties, or between parties under whom they or any
of them claim litigating
under the same title where such suit is pending in the same or any other Court in Pakistan having
jurisdiction to grant
the relief claimed, or in any Court beyond the limits of Pakistan established or continued by the
Central Government and
having like jurisdiction, or before the Supreme Court.
Res-subjudice Meaning:
=========================
Res-subjudice technically means that a matter in issue, which is already under the judicial
scrutiny, then other
proceeding of trial in-respect of same matter in issue shall not be allowed.
Object of Res-subjudice:
==========================
The object of Res-subjudice is to prevent Courts of concurrent jurisdiction from trying two
parallel suits, in respect of
the same matter simultaneously.
Essential Conditions of Res-subjudice:
=================================
For applicability of Res-subjudice the following conditions must be present:
1. The matter in issue subsequent suit must be the same, which is directly and substantially in
issue in previously
instituted suit.
2. The previously instituted suit must be pending in the same Court or in any other Court in
Pakistan, or in any Court
beyond Pakistan established with the authority of the Federal Government.
3. The previously instituted suit must be pending in a competent Court of civil jurisdiction.

4. The parties in both suits must be the same.If these conditions are fulfilled the subsequently
further instituted suit
shall be stayed by applying Res-subjudice.
Differences:
=======================
=======================
1. The doctrine of Res-judicata is contained in section (11) of C.P.C, which provides when and
how it can apply, while
the doctrine of Res-subjudice is contained in section (10) of C.P.C, which provides when and
how it can apply.
2. In Res-judicata the Court shall not try at all a case, which has previously tried, while in Ressubjudice the Court shall
not proceed with a case, in-respect of which a suit is already pending.
3. Res-judicata deals with cases, which have already been decided by a Court of competent
jurisdiction, but Ressubjudice deals with cases which are pending before the Court of competent jurisdiction.
4. Res-judicata prohibits second trial of the same dispute between same parties, while Ressubjudice prohibits
proceedings of two parallel suits between same parties.
Conclusion:
====================
So it can be concluded that by applicability of Res- judicata the Court shall not try a suit, which
has already been tried,
on the other side by applicability of Res-subjudice the Court shall not proceed-with a suit which
is already pending
before the Court of competent jurisdiction. The main spirit behind these two principles isthat no
person should be call in

question twice for the same cause of action.

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Appeal:
=======================
The term appeal is an undefined term, it means the removal of a cause from an inferior court to a
superior one for the purpose of testing the soundness of the decision of the inferior court. Inother words, it is a complaint made to a superior court against the decision of a subordinate court
with the object of getting such order set-aside or reversed. Appeal is the continuation of the
original proceedings before a superior court. The statutory right of appeal confers the right of rehearing the whole dispute, unless expressly restricted in scope and the appellate court is not
confined to the reasons which have been given by subordinate court for its decision.
In-accordance with section (96) of CPC an appeal lies against all decrees passed by a court in the
exercise of original civil jurisdiction, except consent decree, and decree passed in suit filed under
section (9) of the Specific Relief Act, and a final decree, the preliminary decree of which is not
challenged. Appeal also lies against an order if so provided for by section (104), or order (43)
CPC.
Who may appeal:
=======================

As an appeal is a continuation of the suit only such persons who were parties to the suit and who
are adversely affected by the decree may appeal. A person who was not a party to the suit cannot
appeal against the decree, unless such person is adversely affected, and is permitted by the
Appellate Court to file an appeal.
Forum of Appeal:
=======================
The right of appeal is a substantive right, forum of appeal is a matter of governed by procedural
law.
Powers of Appellate Court:
==========================
An appelate court may either confirm, vary, or reverse the decree or pass the order of remand of
the case.
Revision:
=====================
Revision means re-examination of cases which involve the illegal assumption, non-exercise or
irregular exercise of Jurisdiction.
Revisional jurisdiction does not confer any substantive right, and the right of revision is merely a
privilege granted to a party. In Revision the court can interfere, if the case brought before it is a
decided case by subordinate court, and when the same is not appealable. If this condition is
fulfilled, the revisional court may interfere to check, where the subordinate court has:
(a) exercised a jurisdiction not vested in it, or
(b) failed to exercise a jurisdiction vested in it, or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.
Difference between appeal and revision:
======================================
Basic difference between an appeal and a revision is that appeal is a right of party, but revision is
a discretionary power of court. An appeal is continuation of the proceedings, in effect the entire
proceedings are before the appellate court and it has power to review the evidence subject to
statutory limitations prescribed. But in the case of a revision whatever powers the revisional
authority may or may not leave, it have no power to review the evidence unless the statute
expressly confers on it that power.

REVIEW:
=======================
Review means consideration, inspection or re-examination of a subject or thing. According to
section (114) of CPC, any person aggrieved by a decree or order from which an appeal is
allowed but not filed, or a decree or order from which no appeal is allowed, can file a review
petition in the same court which passed such decree or order on the following grounds:
1. When new and important matter or evidence is discovered which after the exercise of due
diligence was not within his knowledge, or could not be produced by him at the time when the
decree or order was passed;
2. When there is any mistake or error apparent on the face of the record;
3. When there is any other sufficient reason.
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Mesne Profit:
======================================
Mesne Profit" those profits which a person in wrongful possession of some property actually
received or might, with ordinany diligence, have received therefrom. But it shall not include
profits due to improvements made by the person in wrongful possession. To claim mesne profit
the plaintiff has to prove that the defendant was in wrongful possession of property.The test of

ascertaining the amount of mesne profits is not what the plaintiff has lost but what the defendant
has or might reasonably have made by his wrongful possession.
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Cause of Action
==============================
The expression cause of action are facts which show the infringement of the rights of a person.
Literally cause means reason or right, and action means suit, "reason for filing a suit". In-other
words it means causes in shape of facts which give rise to a party to file a suit. Cause of action is
a factual situation that entitles one person to obtain a remedy in court from another person. It is
infact a group of essential facts which it is necessary for the plaintiff to prove before he can
succeed in the suit.
==================================================
==================================================
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Preliminary Decree:
============================
Preliminary Decree means a decree in which further proceedings have to be taken before the suit
can be completely disposed-off. A prelimlnany decree declare the rights and obligations of the
parties leaving further matters to be determined in subsequent proceedings. In a preliminary
decree the court adjudicates upon the rights of the parties, and before passing of the final decree
takes steps to enable compete disposal. Ordinarily preliminary decrees are passed in suits; for
possession through partition immoveable property, for redemption of mortgaged property, and
for rendition of accounts. When any party is aggrieved by a preliminary decree does not appeal
therefrom he shall be precluded from disputing its correctness in any appeal which may be
preferred from the final decree.
"The difference between final decree and preliminary decree is'that" final decree completely
dispose-off the suit while preliminary decree does not.

LL.B. PART III CIVIL PROCEDURE CODE 1908 NOTES

Amendment of Pleadings:
A civil suit starts with the presentation of plaint and for the purpose of defending

the defendant submits his written statement. Order VI, Rule 1, in this regard
stipulate that by pleading is meant only the plaint and written statement.
The Law relating to pleadings requires that all material facts and necessary
particulars must be stated in the pleadings. But because of mistake or inadvertence
or subsequent developments or to meet the case made out by the opponent, the
need for amendment of pleadings may arise. The object of the rule is that the court
should try the merits of the case that came before it and should consequently allow
all amendments that may be necessary to determine the real question in
controversy between the parties, provided it does not cause injustice or prejudice to
the other side.
Leading Case: Managing Committee, NMC Model High School Vs Obaidur Rahman,
31 D L R (A D) 133
Conditions of amendment of Pleadings: Following conditions are to be full filled for
the grant of amendment of pleadings:
1) that the amendment is necessary for the resolution of disputes between the
parties.
2) that there exist to possibility from the amendment to be harmful to anyone of the
parties.
3) that the time, which is needed for the amendment would not cause damage to
any legal right of the defendant.
4) that the amendment does not in any way lead to any new proceeding.
5) that there must exist bona fide belief on the part of the person who comes for
the amendment.
Illustrations:
A being threatened to be dispossessed from his inherited property by B field A suit
against B claiming in his plaint declaratory decree and permanent injunction
relating to such property. Afterwards, during the continuation of suit, A lost the right
of possession by B. And then, he wanted to add that matter in the plaint and the
court granted it. This is considered as the amendment of plaint. Likewise, written
statement can also be amended.
In fine, it can be said that pleadings have play an important role in CPC.
LL.B. PART III CIVIL PROCEDURE CODE 1908 NOTES
Forms of Pleading:
Rule 3 of Order VI of CPC provides the forms of pleading. The forms in Appendix A
when applicable, and where, they are not applicable, and where they are not
applicable forms of the like character, as nearly as may be, shall be used for all
pleadings.

LL.B. PART III CIVIL PROCEDURE CODE 1908 NOTES

The Code prescribes four members of service of summons upon a defendant:

Personal Service
Service by affixation
Service by post, and
Substituted Service
Personal or Direct Service:
Rules 10 to 16 and 18 deal with personal or direct service of summons upon the defendant. This
is an ordinary made of service of summons. Here the following principle; must be remembered:
Where it is practicable, the summons must be served to the defendant in person or to his
authorized agent (rule 12).
Where there are more defendants that one, service of the summons shall be made on each
defendant (rule 11).
Where the defendant is absent from his residence at the time of service of summons may be
served on any adult male member of the defendants family residing with him (rule 15).
In all above cases, service of summons should be made by delivering or tendering a copy thereof.
2. Service by Affixation:
Rule 17 specifies this method. When the defendant or his agent refuses to accept personal service
of summons, this method is to be used when the defendant or his agent refuses to accept personal
service, the serving officer shall affix a copy of the summons to on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or carries on business or
personally works for gain.
Mere temporary absence of a defendant from his residence or place of business does not justify
service by affixation.
Leading Case: Shamsunnahar Vs. Salahudding, 4 M L R (A D) 405
3. Service by Post:
Rule 19B specifies that the court shall, in addition to, and simultaneously with, the issue of
summons for personal service, also direct the summons for personal service, also direct the
summons to be serve, by registered post with acknowledgement due addressed to the defendant
or his agent at the place where the defendant or his agent actually and voluntarily resides or
carriers or business.
Leading Case: Gyanammal Vs. Abdul Hussain
4. Substituted Service:
The Provision for substituted service is provided for in Rule 20 or order 5 of the C P C. Rule 20
specifies that in two situations the method of substituted service may be restore to:
When there is reason to believe that the defendant is keeping out of the way for the purpose of
avoiding service, or
When for any other reason summons cannot be served in the ordinary way.
Service in Special Cases:
Apart from the above four types of modes of service of summons rules 21 to 30 to deal with
another mode of service which deal with service outside the Jurisdiction of the courts etc.

In conclusion, it can be said that Summons has play an important role in that code of Civil
Procedure, 1908.
LL.B. PART III : CIVIL PROCEDURE CODE 1908 NOTES
Which Court may Execution a Decree?
Section 38 of the code specifics that a decree may be executed either by the Court
who passed it or by the Court to which it is sent for execution. Section 37 defines
the expression Court which passed a decree while sections 39 to 45 provide for the
transfer for execution of a decree by the Court which passed the decree to another
Court, lay down conditions for such transfer and also deal with powers of executing
Court.

LL.B PART III : CIVIL PROCEDURE CODE 1908 NOTES

Institution of Suits of Civil Nature
Where to be instituted:
Section 15 of the C P C specifies that every suit shall be instituted in the Court of the lowest
grade competent to try it.
How to Institute:
With regard to institution of Civil suit section 27 of the C P C specifies that every suit shall be
instituted by the presentation of a plaint or in such other manner as may be prescribed.
Institution of a Civil Suit:
A Civil suit is instituted with the presentation of plaint by the plaintiff. Plaint is to be submitted
to the proper court with proper jurisdiction as per rules in Order 7 of the C P C. Proper
Jurisdiction means that firstly the concerned court must have local Jurisdiction of the suit;
Secondly, the concerned court must have Jurisdiction of the Suit.

LL.B. PART III NOTES

CIVIL PROCEDURE CODE 1908
Issues and kinds of issues
Issues are points of contest between the parties in a suit . In other words issues are those points
raised from the pleadings which se a way for the court for entertaining a case and it brings the
court at the right conclusion of justice. The determination of issues has great importance in the
trial of a case, because it is issues and not the pleadings, which indicates the appropriate evidence
to be given. Pleadings constitutes allegations to one-side or the other, and after determination

which of the allegations are material for the purpose of the trial and which of them are admitted
or denied, issues are framed and on the basis of these issues the parties stand the test of the trial.
The object of settlement of issues is to determine the material points in controversy between the
parties. < br/> Issues arises when a material proposition of fact or law affirme by one party and
denied by other party.
Issues , whether raised from allegations in the pleadings or from other materials, should not be
inconsistent with pleadings, the court is bound to frame the proper issues arising from the
pleadings.
Framing of Issues
According to order 14 rule 1, issues arise when a material proposition of fact or law is affirmed
by one party and denied by the other. Material propositions are those propositions of law or fact
which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to
constitute his defence.
Each material proposition affirmed by one party and denied by the other shall form the subject of
a distinct issue. At the first hearing of the suit the court shall, after reading the plaint, and the
written statements, if any, and after such examination of the parties as may appear necesssary,
ascertain upon what material propositions of fact or of law the parties are at variance, and shall
thereupon proceed to frame and record the issues on weich the right decision of the case appears
to depend.
If the defendant at the first hearing of the suit makes no defence, then according to order 14 rule
1 , nothing in this rule requires the court to frame and record issues.
Omission to frame issues
If an issue is not framed in the suit, while an allegation was made in the plaint in-respect of
certain facts and challenged in written statement, the court can allow the parties to lead the
evidence on such point, and would give its decision without framing that issue.
Kinds of Issues
ISSUES OF FACT:
Issue of fact means any issue, which has not been determined, by a rule of law, but is to be
answered, in accordance with the evidence laid before the court.
ISSUES OF LAW
Issue of law means that issue, which is to be answered in accordance with the law, and not in
accordance with the facts or evidences that is laid before the court.
According to order 14 rule 2, " where issues both of law and fact arise in the same suit, and the
court is of the opinion, that the case or any part thereof may be disposed of on issues of law only,

it shall try those issues first, and for that purpose may if it thinks fit, postpone the settlement of
the issues of fact untill after the issue of law have been determined".
Materials from which issues may be Framed
The provision regarding the materials from which issues are framed is found in order 14 rule 3,
which provides that " the court may frame issues from any of the following materials :The court may frame issues from the allegations made on oath by bthe parties, or by any persons
present on their behalf or made by the pleaders of such parties.
The court may frame issues from the allegations made in the pleadings or in answers to the
interrogatories delivered in the suit.
The court may frame issues from the contents of the documents produced by either part ".
Power of court to amend and strike-out issues
The power of the court to amend and striking-out of issues is mentioned in order 14 rule 5, which
provides that, " The court may at any time before passing a decree amend the issues or frame
additional issues as may be necessary for determining the matters in controversy between the
parties shall be so made or framed. The court may also, at any time before passing a decree,
strike-out any issues that appear to it to be wrongly framed or introduced.

LL.B. PART III NOTES

CIVIL PROCEDURE CODE 1908
Res-judicata Meaning, Object and Kinds of Res-Judicata
The doctrine of Res-judicata is enunciated in section (11) of C.P.C is in the following words:
According to section (11), "No Court shall try any suit or issue in which the matter' directly and
substantially has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under the same title,
in a Court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such Court."
Res-judicata Meaning
Res-judicata technically means that a matter in issue which has already been tried by competent
Court, then trial between the same parties in-respect of the same matter shall not be allowed.
Res-judicata is very important doctrine of C.P.C, it emphasis that a subject matter of the suit
which has already been decided, is deemed to be decided forever, and can't be reopened by the

same parties. The rule of Res-judicata is based upon the principle that no person should be vexed
twice for the same cause of action, and the interest of the State behind this principle is that, there
should be an end to litigation.
Object of Res-judicata
The object of Res-judicata is to prevent a question which has already been decided to be reagitated. A question finally decided at one stage of a proceeding cannot be re-agitated between
the same parties or their representatives at a subsequent stage.
Kinds of Res-judicata
There are two kinds of Res-judicata namely; Actual Res-judicata and Constructive Res-judicata.
Actual Res-judicata
It means a matter actually resolved by Court, between the parties in earlier suit cannot be
reopened through subsequent suit. In-other words an issue has been alleged by one party and
either denied or admitted, (expressly or impliedly) by other party in earlier suit, second suit in
respect of the same matter can not be filed, and if any is filed, the same would be hit by actual
Res-judicata.
Constructive Res-judicata
It means a matter which might and ought to have been made ground of claim or defense in a
former suit, but a party ignores it, then that issue shall be deemed to have been a matter directly
and substantially in issue in such suit. In other words if a party had an opportunity that he ought
to have taken a plea (as a plaintiff or defendant) if he fails to do so, and the matter is decided, the
decision will operate as Res-judicata in-respect of all issues, which were taken, and which ought
and might have taken/ and second suit would not lie for such issue.
Essential conditions of res-judicata
For applicability of Res-judicata the following conditions must be present:
A previous suit in which the matter in issue directly and substantially should have been decided.
A competent Court of Civil jurisdiction should have decided it.
It should have been decided on merits and final decision should have been made after hearing.
It should contain directly and substantially same matter in issue.
It should have been contested between the same parties or their legal representatives, such parties
are indulging litigation under the same title, with respect to the same cause of action.
If these conditions are fulfilled then subsequently/further instituted suit shall be liable to be
dismissed by application of doctrine of Res-judicata.