CIVIL PROCEDURE- II

[Answer No. 01]

Introduction
The term ‘plead’ means to request or ask for something in a polite and humble manner. Now,
such request can be made orally or in written or in any other form that signifies a request being
made by one before another person or entity which is in a position to grant that request. The
contents of such request, in general, is called pleading.

For instance, two kids A and B are fighting and A complaints to his teacher that B hit A and
injured him. Everything that A tells to his teacher as to where was the fight, at what time, for
what reason, etc. amounts to A’s pleadings. Further, when B is called to justify his actions,
everything that B says in his defence and/or puts any allegations or counterclaims against B are
A’s pleadings.
Thus, pleadings are those information, data or momentous facts which are vital to be asserted in
order to put forward a cause or to establish a defence in a proceeding.

What is Pleading
Order 6 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter ‘CPC’) defines pleadings as
“plaint or written statement”. Plaint is the document submitted by the plaintiff, i.e. the aggrieved
party who states the material facts, reasons for filing the suit and what remedy or relief the
aggrieved person is claiming through the legal proceedings.
On the other hand, a written statement is a reply to the plaint wherein the defendant, i.e. the
opposing party against whom claims are being made by the plaintiff.

According to Mogha, “pleadings are statements in writing drawn up and filed by each party to a
case, stating what his contentions will be at the trial and giving all such details as his opponent
needs to know in order to prepare his case in answer”.
Pleadings contain claims by the plaintiff, counterclaims by the defendant, questions and answers
and everything that is essential to lead the case to a certain end. Any ground or fact not
mentioned in the pleadings cannot be used or relied upon by the parties in court during the
judicial proceedings.

In Devki Nandan v. Murlidhar, the Supreme Court held that a finding of the court, i.e. any
point of determination established by the court is null and void if it is based on materials not
mentioned in the pleadings. Therefore, the pleading is the backbone of a suit on which the fate of
the suit rests.

Objects and Importance of Pleading

Lord Jessel in the notable case of Throp v. Holdsworth explained the objectives and purposes of
pleadings in a judicial proceeding. According to His Lordship, the main object of pleadings is to
taper down the parties to certain specific issues and forbid enlargement of issues. Pleading assists
the parties to know the facts and circumstances of the case brought against them by the adverse
party and hence, saves time and expense.
Earlier, when pleadings were not in vogue and parties used to argue their case directly in court,
there were instances where parties took much time to respond to the claims because of the
sudden and new arguments of the adverse party.

The objects of pleading can be enlisted as follows:

1. To taper down the broad issues on which dispute arose to a narrow and common issue.
2. To avoid sudden and astonishing facts from emerging in the proceeding and causing
travesty of justice.
3. To render judicial proceedings inexpensive, less cumbersome and approachable.
4. To protect the valuable time of people that is wasted in framing arguments after every
hearing.
5. To eliminate irrelevant facts and materials that will waste the time of the court.
6. To aid the court in reaching to a fruitful conclusion.

Essentials of pleading

Although it hasn’t been defined in the CPC, it is a comprehensive document, a pleading of the
plaintiff, which outlines the essentials of a suit, and sets the legal wheels up and running.

Order VII of the CPC particularly deals with a plaint. A few of the essentials of a plaint implicit
in itself are those only material facts, and not all facts or the law as such is to be stated, the facts
should be concise and precise, and no evidence should be mentioned.

PARTICULARS OF A PLAINT:
● The name of the particular court where the suit is initiated.
● Name, place, and description of the plaintiff’s residence
● Name, place, and description of the defendant’s residence.
● A statement of unsoundness of mind or minority in case the plaintiff or the defendant
belongs to either of the categories.
● The facts that led to the cause of action and when it arose.
● The facts that point out to the jurisdiction of the court.
● The plaintiff’s claim for relief.
● The amount allowed or relinquished by the plaintiff if so
● A statement containing the value of the subject matter of the suit as admitted by the case.

ADDITIONAL PARTICULARS:
 ● Order VII, Rule 2 states that the plaintiff shall state the exact amount of money to be
obtained from the defendant if the case is so. On the other hand, if the exact amount
cannot be arrived at, as is then case with mesne profits, or claim for property from the
defendant, an approximate figure must be mentioned by the plaintiff.
● Order VII, Rule 3 states that when immovable property is the subject matter of the plaint,
the property must be duly described, that is sufficient in the ordinary course to identify it.
● Order VII, Rule 3 states that when the plaintiff has initiated the suit in a representative
capacity, it has to be shown that he/ she has sufficient interest in doing the same as well
as has taken the required steps to ensure the same.
● The plaint should adequately show the involvement of the defendant, including his/ her
interests in the same and thereby justifying the need to bring him/ her forward.
● If the plaintiff files the suit after the expiration of the period of limitation, he/ she must
show the reason for which such an exemption from law is being claimed.

Fundamental Rules of Pleading

Order 6 Rule 2(1) states that “every pleading shall contain, and contain only, a statement in a
concise form of the material facts on which the party pleading relies for his claim or defence, as
the case may be, but not the evidence by which they are to be proved”. Thus, this provision
indicates that there are four basic or fundamental rules of documenting a pleading:
1. Pleadings ought to state the facts of the case and not the legal provisions applicable in the
case.
2. Pleadings must contain only material facts.
3. Pleadings should contain the relevant facts on which either party relies but it should not
state the evidence by which the fact is proposed to be proved.
4. Pleadings must contain a concise, i.e. brief facts that explains the details of the case in
short.

Amendment of Pleadings
Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deal with amendment of pleading.
These provisions aim towards achieving justice in the society. Rule 17 of the Code of Civil
Procedure, 1908 provides either parties may be ordered to amend or alter his pleading at any
stage of the proceeding in such manner which shall be fair and just and allow amendment when
necessary so as to determine the exact controversial question between the parties.
On the other hand Rule 18 deals with the issue of failure of amending the pleading. It deals with
the law that if court orders a party to make necessary and if he fails to do the same within the
given time limit given by the order or if no time is limited then within 14 days from the date of
the order, he shall not be permitted to amend after the expiration of such limited time as
aforesaid or of such 14 days, as the case may be, unless the time is extended by the Court.
 [Answer No. 02]
Introduction
Appearance and non-appearance of the parties in a civil suit is the important factor upon which
the fate of any case depends. A mere non-appearance of a party in front of the court on a
determined day may result in an adverse decision with respect to the non-appearing party. The
general provisions contained in the Civil Procedure Code of 1908 is based on the principle that
no proceedings which are detrimental to the interest of any of the parties to the suit shall be
conducted in the court of law. It is the duty of the parties to the suit to show up before the court
of law on a due date which has been fixed by the court. In case of non-appearance of any of the
parties to the suit, the judgement of the court may turn in favour of the party appearing in front of
the court. However, in situations where a suit is determined irrespective of the fact that any of
the parties to the suit are absent on the due date. Then, the non-appearing party in order to
safeguard its interest can revive the suit by following the provisions of Civil Procedure Code,
1908.

The provisions with respect to the consequences in case of non-appearance of parties and other
related provisions are contained in the Order IX of Civil Procedure Code, 1908. The rules
regarding the consequences of appearance and non-appearance of parties to the suit under the
Order IX of CPC are as follows:

● Rule 2– the consequences of non-deposition of fees by the plaintiff.

● Rule 3 and Rule 4–  the consequences of non-appearance of both the parties to the suit.
● Rule 8, Rule 9 and Rule 9(A)– consequences of non-appearance of the plaintiff to the
court of law.
● Rule 6, Rule 13 and Rule 13(A)– provisions with respect to non-appearance of the
defendant to the court of law. 

Appearance of parties
The word “appearance” under civil cases has a well-known meaning. It means the appearance of
the party to the suit before a court of law. The appearance can be by the party in person or
through his advocate or through any person along with the advocate of the party.

The mere presence of the party before the court of law is not what the word “Appearance”  under
the Order IX of the CPC,1908 means. But the word “appearance” under CPC means the
appearance made by the pleader who is able to answer all the material questions which are
relevant to the judicial proceedings in question before the court of law in a duly prescribed and
recognized manner and on the date allotted by the court to each party unless the court has
adjourned the proceedings of the case to some other day.

Rule 1 of Order IX is related to the appearance of the parties on the date of first hearing of the
case. It declares the mandatory presence of the parties before the court of law on the day fixed by
the court under the summon issued on the defendant.

According to Rule 2 of the Order IX, the failure on the part of the plaintiff to submit any
processing fee determined by the court of law on any stipulated date. Then such a failure would
result in the dismissal of the suit by the court. However, no such dismissal to the case can be
made where the defendant in person or through his agent attend the proceedings of the court and
answers all the material questions possessed by the court.

Where neither party appears

Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where neither
of the parties in a case appears before the court of law on the date fixed by the court of law.
According to Rule 3 of the Order IX of CPC. In such a case, the suit shall be dismissed by the
court and according to Rule 4, the plaintiff can file a new suit in the court of law if he is able to
satisfy the court that there was a sufficient cause for his non-appearance in court.

In Damu Diga v. Vakrya Nathu, the plaintiff sued the defendants, D1 and D2. on the date fixed
by the court for appearance of the parties to the suit only D2 appeared in the court. The
subordinate court erred while passing the order of dismissal of the case. However in an appeal
against the decision of the court. It was held that the present case comes under the purview of
Rule 4 of Order IX of CPC and court should take into consideration the fact that not only the
plaintiff in the case was absent from the proceedings. But, defendant number 1 was also absent
and the according to Rule 4, the court must allow the plaintiff to apply for an order setting aside
the dismissal of the case by the court.

Where only the defendant appears

Rule 8 of the Order IX of the CPC talks about the legal consequences of the non-appearance of
the plaintiff and the appearance of the defendant in the court of law. According to the rule, in a
case where the defendant makes an appearance in the court of law on the due date and the
plaintiff remains absent from the proceedings. The court shall make an order of dismissal of the
case unless the defendant admits a claim or parts thereof as in such a case the court can pass a
decree against the defendant upon such admission or where only the part of the claim is
admitted. If the case of the plaintiff has been dismissed by the court under Order IX of the CPC
then the plaintiff has two options to revive his case in the court of law. Which are as follows:
 ● The plaintiff can file a fresh suit in the court of law if the same has not been barred by
any law in force; or
● The plaintiff can file a petition under Rule 4 of Order IX of Civil Procedure Code, 1908.
According to Rule 4 of the Order where a case has been dismissed in pursuance of Rule 2
or Rule 3 of the Order IX then the plaintiff can apply for an order for the dismissal of the
case by the court.

In the case of The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj,
the court held that the plaintiff should not suffer because of the non-appearance of the counsel
appointed by him with good faith that he will make an appearance without any reasonable cause
in the court of law whenever the plaintiff is called for in the court. As such non-appearance by
the counsel representing the plaintiff without any reasonable cause is not only unprofessional and
unfair to the plaintiff but is also unfair and discourteous towards the court of law. And so the
plaintiff should not suffer because of the fault of the counsel he has hired in good faith.

Where a summons is not served

Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of
peremptory hearing on a prescribed date. According to Rule 6 of Order IX, when the plaintiff is
present but the defendant is absent on the date of peremptory hearing on a prescribed date of
hearing then the court takes the decision about the consequence of such non-appearance with
respect to the status of summon which is served to the parties in the case by the court of law.
Following are the consequences of non-appearance of the defendant and the appearance of the
plaintiff with respect to varying statuses of the summon which is served: 

● In the case where the summon is duly served the court can declare that the suit shall be
heard ex-parte;
● In the case where the summon is not duly served then, the court can order the issue of a
second summon and that the same to be served to the defendant;
● When the summon is served to the defendant but the sufficient time was not given to him
to make an appearance in the court of law and answer the material questions in the case
on the day fixed by the court. The court shall postpone and fix the hearing of the case to
some other day which shall be notified to the defendant;
● When in a case the delay in issuance to the defendant is caused due to the fault of the
plaintiff, the court may order the plaintiff to pay the costs occasioned by the delay in the
proceedings.

Ex parte decree
Rule 6(1)(a) of Order IX of the Civil Procedure Code empowers the court to pass any judgement
ex parte in case the defendant party in a case absents himself from the proceedings on the due
date fixed by the court of law which has been informed to him by the summon duly served on
him of the case. An Ex parte decree is neither void nor inoperative but it is voidable at the option
of one party which may seek the order of annulment of the decree

Conclusion
The concept of appearance and non-appearance of the parties in the civil suit is the basic concept
on which the ultimate fate of each and every case depends upon. On one hand, the courts are free
to dismiss any case in the case of non-appearance of any party to the suit which is also the need
of the hour keeping in view a large number of cases which are pending in the courts. But at the
same time, the courts are bound to continue the proceedings even in the cases where the non-
appearance of any party is due to any special circumstances established by such a party. This is
important in order to uphold the ultimate objective of every judicial system which is the welfare
and creation of an egalitarian society.

[Answer No. 03]

Introduction
Article 300 of the Indian Constitution empowers the Indian government to sue any person or be
sued by any person under the name of the Union. Similarly, State governments can sue or be
sued by any legal person under the name of the State.
This provision creates a substantive right of filing a suit on the government by persons who are
aggrieved by an action of the government and vice versa. This is a substantive provision and its
purpose is to only create a right. It does not explain the procedure that needs to be followed to
sue the government.

The procedure to sue is a matter of procedural or adjective law and hence, Sections 79 to

82  read with Order XXVII  explains the procedure to sue or be sued by the government in
detail. These procedures explain and answer several essential questions which are a sine qua
non  in a civil suit such as when the cause of action arises in a suit by or against the government
and how the suit is to be instituted.
Analysis of Procedure under Section 79
Section 79 is a replication of the provision contained in Article 300 of the Constitution. It states
that if a suit has to be filed either by the government or against the government, the title of the
plaintiff and the parties who shall be impleaded as defendant shall be the ‘Union of India’, if the
suit is by or against Central Government and ‘State’, if the suit is by or against State
Government.
In Santhanand v. Basu-devanand, the court commented on Section 79 of CPC and said that it
lays down the procedure for the institution of the suit but does not establish any rights or
liabilities on the government. However, a simple reading of the provision clarifies that the
section does not mention any procedure as to the commencement of the proceedings or how the
cause of action arises. It only mentions the necessary parties in a suit involving the government
or a public officer.
In Jehangir Cursetji v. Secy. of State for India, the Bombay High court observed that this
provision does not provide the cause of action but only mentions the manner of proceeding after
the cause of action has arisen. The procedure to be followed in a suit involving government has
been explained and evolved by the judiciary through several leading cases.
In  Dominion of India v. RCKC Nath, the court clarified the point of the jurisdiction of civil
courts with respect to suits involving government or public officers. The court held that any suit
by or against the government can be filed only before that court within the territorial
jurisdiction of whose the cause of action had arisen.
If the court within whose local jurisdiction the cause of action arose is not competent to hear the
case, the suit cannot be filed before such court. The court further held that expressions used in
the CPC such as ‘reside, dwell or carry on business’ do not apply to suits involving government
instrumentalities.

Moreover, if the suit is by or against the railway, the procedure to be followed was explained
in R.C. Jall v. Union of India. In this case, the apex court observed that if a rail authority is
maintained by the Central or State government, a suit can be filed by or against the government
itself and rail administration is not required to be impleaded as a party.
In the present case, the central government sued the appellant for collection of cess charges not
paid by the appellants and the court held that railway administration need not be the plaintiff and
the suit filed by the government is admissible.

Notice under Section 80

A legal notice is an instrument served by the aggrieved party upon the other party intimating it
that certain legal right of the aggrieved party has been infringed by the acts of the adverse party
because of which the aggrieved person seeks to take legal action against the other party unless
the violation can be remedied before the suit is instituted.

There are several forms of a legal notice. The purpose of legal notice is to intimate the opposite
party that a legal suit might be instituted against him and to allow him an opportunity to make
right any wrong that he has committed. A legal proceeding is time-consuming and costly and
therefore, service of notice assists to resolve the case before the proceeding commences.
The notice under Section 80 is called a statutory notice because it is a statutory mandate under
Section 80 to issue a notice to the government or the public officer against whom a case is filed.
The primary reason for a notice under Section 80 is to save the time and expense of the
government and litigants. The provision lays down the manner in which the notice has to be
issued and served.
The manner can be enlisted for easy understanding as follows:

▪ Notice must be issued two months prior to the date of institution of the suit.
▪ Notice must be in writing.
 ▪ Notice must be either delivered through registered post or left at the office of the Secretary
to the Central or State Government.
▪ Notice must be delivered or left at the office of the General Manager of Railways if the suit
is against the railway.
In general, the notice should contain the details of the plaintiff, the situation that led to the cause
of action, time of the cause of action and the claims of the plaintiff that will remedy the injury
caused. Further, in Sankar Mukherjee v. Union of India. the apex court held that “notice is
required to convey to its recipient’s sufficient information to enable him to consider the
plaintiff’s claim”.
As aforementioned, the legal notice issued under this provision is for the benefit of the
government to allow it to resolve the dispute without expending time and money.

In Lal Chand v. Union of India, the court observed that since it is completely for the
government, the concerned government or the public officer can waive off the issuance of notice.
Nevertheless, if the notice is not duly served and the suit is filed, the government can object to it
and the plaint shall be rejected by the court.

Execution of a Decree against the Government

The procedure to institute the suit has already been explained and all the prerequisites to the
commencement of proceedings are dealt with. After the institution of suit, the court proceedings
continue in the same manner as any other suit except the government is represented by a
government pleader.

The next procedure is the execution of a decree. Suppose the plaintiff is an individual and the
suit is against the central or state government or a public officer and the decree is pronounced in
favour of the plaintiff. The question is would the decree be executed in the same manner as other
decrees.

Section 82 (1) of the Code throws light on this question and provides that a decree obtained
against a government or public officer shall be executed in accordance with the terms of Section
82 (2). According to this provision, no suit for execution can be filed against the government for
three months from the date on which the decree was passed.
This period to allow the government to fulfil the requirements of the decree and remedy the
wrong that it had done. If the plaintiff’s claims remain unsatisfied for three months, the
execution application can be filed in accordance with the rules under Order XXI of the CPC.

[Answer No. 4]

Introduction
Summary suit or summary procedure is provided under order XXXVII of the Code of Civil
Procedure, 1908. The summary suit is a unique legal procedure used for enforcing a right in an
efficacious manner as the courts pass judgement without hearing the defence.
While this prima facie would appear to be violative of the cardinal principle of natural justice,
Audi Alteram Partem, nobody should be condemned unheard, this procedure is only used in
cases where the defendant has no defence and is applicable to only limited subject matters.

Nature
A summary suit under order 37 of the Code of Civil Procedure is a legal procedure used for
enforcing a right that takes effect faster than ordinary suits as unlike in ordinary suits the courts
do not hear the defence.

However it does not violate the principles of Audi Alteram Partem, nobody should be
condemned unheard  as it is used only in certain limited cases (elaborated below under scope)
where the defendant has no tenable defence.

Object
The object underlying the summary procedure is to ensure an expeditious hearing and disposal of
the suit and to prevent unreasonable obstruction by the defendant who has no defence or a
frivolous and vexatious defence and to assist expeditious disposal of cases.

Scope and extent of applicability

A summary suit can be instituted in High Courts, City Civil Courts, Courts of Small Causes and
any other court notified by the High Court. High Courts can restrict, enlarge or vary the
categories of suits to be brought under this order.

As explained above that the object of Summary suits is to aid commercial transactions by a swift
redressal mechanism these suits can be instituted only in case of certain specified documents.

The documents such as a bill of exchange, hundies, and promissory notes and suits in which the
plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant,
with or without interest, arising on a written contract; or on an enactment, where the sum sought
to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a
guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

The procedure of Summary Suits

Rules 2 and 3 provide the procedure of summary suits. Under rule 2 after the summons of the
suit has been issued to the defendant. The defendant is not entitled to defend Summary suit
unless he enters an appearance.

In default of this, the plaintiff will be entitled to an ex parte decree which is on a different footing
to an Ex Parte decree passed in ordinary suits.

In the case that the defendant appears, the defendant must apply for leave to defend within ten
days from the date of service of summons upon him and such leave will be granted only if the
affidavit filed by the defendant discloses such facts as may be deemed to entitle him to defend.
Summary suits
Types of interpretations to be applied:

As the purpose of summary suits is to act as a welfare mechanism to achieve justice in an

expedient manner, the language under Or.37 is to be interpreted liberally, which has been
reflected in numerous judgments.

An illustrative example would be the phrase written contracts that have been given the widest
possible interpretation as even Invoices/Bills are written contract within the contemplation of
Order 37 KIG Systel Ltd v.  Fijitsu ICIM Ltd. 

Difference between a summary suit and original suit

The major difference between ordinary suits and summary suits is that in the later the defendant
will get a chance to defend himself only if leave to defend is granted.

Unlike ordinary suits, summary suits are restricted to matters related to bills of exchange,
promissory notes and contracts, enactments, guarantees of specified nature. Interestingly Res
Judicata is not applicable to summary suits, i.e. summary suits can be filed on the matter directly
and substantially in issue in a previous ordinary suit.

In summary suits in the case of non-appearance of the defendant, a decree in favour of the
plaintiff is passed easily, whilst in ordinary suits usually, multiple summonses are served and
only then an ex parte order is passed.

Therefore, in Summary, suits setting aside an ex parte decree is stricter and more stringent and
special circumstances for non-appearance need to be set out, while in ordinary suits only
sufficient cause needs to be shown. The difference between special circumstances and sufficient
cause has been elucidated below.

Special circumstances v. sufficient cause

The two terms have been lucidly juxtaposed in Karumili Bharathi v. Prichikala
Venkatchalam. The reasons offered by the defendant to explain the special circumstances
should be such that he had no possibility of appearing before the Court on a relevant day.

For instance, there was a strike and all the buses were withdrawn and there was no other mode of
transport. This may constitute “special circumstances”. But if the defendant were to plead that he
missed the bus he wanted to board and consequently he could not appear before the Court.

It may constitute a ‘sufficient cause’, but not a ‘special circumstance’. Thus a ‘special
circumstance’ would take with it a ‘cause’ or ‘reason’, which prevents a person in such a way
that it is almost impossible for him to attend the Court or to perform certain acts which he is
required to do.
Thus the ‘reason’ or ‘cause’ found in “special circumstances” is stricter or more stringent than in
“sufficient cause” and depends on the facts of each case.

What constitutes no defence

As mentioned above, to proceed with summary suits the defendant must have no tenable defence.

What constitutes conditions when a leave to defend must be granted has been dealt with recently
(2016) by the Supreme court in IDBI Trusteeship Services Ltd v. Hubtown Ltd, held that the
position in law with respect to granting of leave to defend a summary suit is that the trial Judge is
vested with a discretion which has to result in justice being done on the facts of each case.

The Court explained that at one end of the spectrum is unconditional leave to defend, granted in
all cases which present a substantial defence. However, it must be borne in mind that on the
other end of the spectrum are frivolous or vexatious defences, which should result in a refusal of
leave to defend.

In between these two extremes are various kinds of defences raised which yield conditional leave
to defend in most cases. The judgement lays out principles that have been summarized below.

● If the defendant raises triable issues indicating that he has a fair or reasonable defence,
although not a positively good defence, the plaintiff is not entitled to sign the judgment, and
the defendant is ordinarily entitled to unconditional leave to defend;

This reiterates the position laid out in Precision Steel & Engg. Works vs Prem Deva Niranjan
Deva Tayal, where it was held that mere disclosure of facts, not a substantial defence is the sine
qua non. What is a substantial defence depends upon facts and circumstances of each case.

● Even if the defendant raises triable issues, if a doubt is left with the trial judge about the
defendant’s good faith or the genuineness of the triable issues, or if they are plausible but not
probable, the trial judge may impose conditions both as to time or mode of trial, as well as
payment into court or furnishing security.

Moreover, recently in Uma Shankar Kamal Narain v. MD overseas limited, the Supreme
court upheld previous judgements like Southern Sales and Sevices v. Sauermilch Design and
Handles GMBH, and the Sunil Enterprise v. SBI, and reiterated the principles to be adhered to
in the case of a leave to defend summary suit relating to the dishonoured cheques.

It has been held that “Unconditional leave to defend a suit shall not be granted unless the amount
as admitted to be due by the Defendant is deposited in Court.”

Conclusion
It is humbly opined that summary suits act like an ingenious solution to help prevent
unreasonable obstructions by a defendant who has no tenable defence.
Summary suits would be beneficial to businesses as unless the defendant is able to demonstrate
that he has a substantial defence, the plaintiff is entitled to a judgment.

Order 37 engineers an appropriate mechanism that ensures that the defendant does not prolong
the litigation especially as in commercial matters time is of the essence and helps further the
cause of Justice.

[Answer No. 05]

The word limitation itself says the meaning. The word limitation in its literal term means a
restriction or the rule or circumstances which are limited. The law of limitation has been
prescribed as the time limit which is given for different suits to the aggrieved person within
which they can approach the court for redress or justice.

It is necessary to have certain basic knowledge regarding the law of limitation though it is not
expected from every citizen to master various provisions which has been provided for limitation
in different suits matters.

The basic concept of limitation is relating to fixing or prescribing of the time period for barring
legal actions. According to Section 2 (j) of the Limitation Act, 1963, ‘period of limitation’ means
the period of limitation prescribed for any suit, appeal or application by the Schedule, and
‘prescribed period’ means the period of limitation computed in accordance with the provisions of
this Act.

The Law of Limitation signifies to prevent from the last date for different legal actions which can
take place against an aggrieved person and to advance the suit and seek remedy or righteous
before the court. Where a suit is initiated after the bar of limitation, it will be hit by the law of
limitation. The main and the fundamental aim of the law of limitation is to protect the lengthy
process of penalizing a person indirectly without doing any offence.

The law relating to Law of Limitation to India is the Limitation Act, 1859 and subsequently
Limitation Act, 1963 which was enacted on 5th of October, 1963 and which came into force from
1st of January, 1964 for the purpose of consolidating and amending the legal principles relating to
limitation of suits and other legal proceedings.

The Limitation Act, 1963 does not affect the provisions provided under The Indian Contract Act,
1872. The Act is made effective for the reason that it bars the jurisdiction of the court to entertain
the actions that are frivolous and to avoid the long proceeding of the pending actions by the
complainants.

The Salient Features are:

The Limitation Act contains 32 Sections and 137 Articles. The articles have been divided into 10
parts. The first part is relating to accounts, the second part is relating to contracts, the third part is
relating to declaration, the fourth part is relating to decrees and instrument, the fifth part is
relating to immovable property, the sixth part is relating to movable property, the seventh part is
relating to torts, the eighth part is relating to trusts and trust property, the ninth part is relating to
miscellaneous matters and the last part is relating to suits for which there is no prescribed period.

There is no uniform of limitation for the suits under which the classifications has been attempted.

The limitation period is reduced from a period of 60 years to 30 years in the case of suit by the
mortgagor for the redemption or recovery of possession of the immovable property mortgaged,
or in case of a mortgages for the foreclosure or suits by or on the behalf of Central Government
or any State Government including the State of Jammu and Kashmir.

Whereas a longer period of 12 years has been prescribed for different kinds of suits relating to
immovable property, trusts and endowments, a period of 3 years has been prescribed for the suits
relating to accounts, contracts and declarations, suits relating to decrees and instruments and as
well as suits relating to movable property.

A period varying from 1 to 3 years has been prescribed for suits relating to torts and
miscellaneous matters and for suits for which no period of limitation has been provided
elsewhere in the Schedule to the Act.

It is to be taken as the minimum period of seven days of the Act for the appeal against the death
sentence passed by the High Court or the Court of Session in the exercise of the original
jurisdiction which has been raised to 30 days from the date of sentence given.

One of the main salient feature of the Limitation Act, 1963 is that it has to avoid the illustration
on the suggestion given by the Third Report of the Law Commission on the Limitation Act of
1908 as the illustration which are given are most of the time unnecessary and are often
misleading.

The Limitation Act, 1963 has a very wide range considerably to include almost all the Court
proceedings. The definition of ‘application’ has been extended to include any petition, original or
otherwise. The change in the language of Section 2 and Section 5 of the Limitation act, 1963
includes all the petition and also application under special laws.

The new Act has been enlarged with the definition of ‘application’, ‘plaintiff’ and ‘defendant’ as
to not only include a person from whom the application. Plaintiff or defendant as the case may be
derives his title but also a person whose estate is represented by an executor, administrator or
other representatives.
According to Sections 86 and Section 89 of the Civil Procedure Code, it requires the consent of
the Central Government before suing foreign rulers, ambassadors and envoys. The Limitation
Act, 1963 provides that when the time obtained for obtaining such consent shall be excluded for
computing the period of limitation for filing such suits.

The Limitation Act, 1963 with its new law signifies that it does not make any racial or class
distinction since both Hindu and Muslim Law are now available under the law of limitation as
per the existing statute book. In the matter of Syndicate Bank v. Prabha D. Naik, (AIR 2001 SC
1968) the Supreme Court has observed that the law of limitation under the Limitation Act, 1963
does make any racial or class distinction while making or indulging any law to any particular
person.

According to Halsbury’s Laws of England, the Main Objects of the Law of Limitations are as
follows: -

Whereas it has been observed and expressed by the Court that there are almost three different
types of supporting reasons for the existence of statutes of limitation.

● That long dormant claims have more of cruelty than justice in them.

● That a defendant might have lost the evidence to dispute the State claim.

● That person with good causes of actions should pursue them with.

● There are two Major Broad Considerations on which the Doctrine of Limitation and
Prescription are based on

● That, the right which are not exercised for a long time are said to be as non-existence.

● That, the rights which are related to property and rights which are in general should not
be in a state of constant uncertainty, doubt and suspense.

The main object of limit in any of the legal actions which is to give effect to the maxim ‘interest
reipublicae ut sit finis litium’ which means that if the interest of the State is required that there
should be a limit to a litigation and also to prevent any kind of disturbance or deprivation of what
may have been acquired in equity and justice or by way long enjoyment or what may have been
lost by a party’s own inaction, negligence or laches.

The intention in accepting the concept of limitation is that “controversies are restricted to a fixed
period of time, lest they should become immortal while men are moral.”

The major purpose of the statutory of the Limitation Act, 1963 is not to destroy or infringe the
rights of an aggrieved person but to serve public in a better way and to save time. This statute is
basically founded on the public policy for fixing a life span for the legal action which are taken
place and to seek remedy in time with the purpose of general welfare. The object of providing a
legal remedy is to repair the damage which is caused by reason of legal injury.

Redress of the Legal Injury from Legal Action when Suffered

The provisions of Limitation Act which are provided in the statute are the statute of repose, to
suppress frauds and to supply deficiency of proofs which are arising from the ambiguity,
obscurity or the antiquity. The presumptions proceed upon the claims which are extinguished or
are ought to be extinguished whenever they are not litigated with the prescribed period of time.

It has been the topic of discussion in the Supreme Court and different High Court about the
object of the Law of Limitation. In the matter of State of Rajasthan v. Rikhab Chand, it has
been observed by the Rajasthan High Court that the rules of limitation are mainly intended to
induce the claimant in claiming the relief and also in avoiding the unexplainable delay and
latches in a suit.

Whereas, in the matter of M.P. Raghavan Nair v. State Insurance Officer, it has been
observed by the Kerala High Court that the Law of Limitation is based upon public policy
mainly aiming at justice, repose and peace.

In the matter of Rajender Singh v. Santa Singh, it was held by the Supreme Court of India that
“the object of the Law of Limitation is to prevent disturbance or deprivation of what may have
been acquired in equity and justice by a long enjoyment or what may have been lost by a party’s
own inaction, negligence or latches.”

In the matter of B.B. & D. Mfg. Co. v. ESI Corporation, it was observed by the Supreme Court
that-

“The object of the Statutes of Limitations to compel a person to exercise his rights of action
within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims.
While this is so, there are two aspects of the Statutes of Limitation — the one concerns with the
extinguishment of the right if a claim or action is not commenced within a particular time and the
other merely bars the claim without affecting the right which either remains merely as a moral
obligation or can be availed of to furnish the consideration for a fresh enforceable obligation.
Where a statute prescribing the limitation extinguishes the right if affects substantive right while
that which purely pertains to the commencement of action without touching the right is said to be
procedural.”

In Balakrishnan v. M.A. Krishnamurthy, it was held by the Supreme Court that the Limitation
Act is based upon public policy which is used for fixing a life span of a legal remedy for the
purpose of general welfare. It has been pointed out that the Law of Limitation are not only meant
to destroy the rights of the parties but are meant to look to the parties who do not resort the
tactics but in general to seek remedy. It fixes the life span for legal injury suffered by the
aggrieved person which has been enshrined in the maxim ‘interest reipublicae ut sit finis litium’
which means the Law of Limitation is for general welfare and that the period is to be put into
litigation and not meant to destroy the rights of the person or parties who are seeking remedy.
The idea with regards to this is that every legal remedy must be alive for a legislatively fixed
period of time.

The Law of Limitation is an adjective Law. It is lex fori. Thus, it can be said that the rules of the
Law of Limitation are generally prima facie with the rules of procedure and which has not
created any rights in favour of any particular person nor does they define or create any cause of
action. It has been simply prescribed that the remedy can be exercised only for a limited fixed
period of time and subsequently.