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Exam, questions and answers

Civil procedure code (Symbiosis International University)

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1. Explain Decree. What are the essential elements of a decree and the
kinds of decree?
Adjudications of a court of law can be divided into two: decree and orders.

Section 2 (2) defines decree as the formal expression of an adjudication which, so far as
regards the court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be either preliminary
or final. It shall be deemed to a include the rejection of a plaint and the determination of
any question within Section 144 but shall not include:

a. Any adjudication from which an appeal lies as an appeal from an order

b. Any order of dismissal for default

A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed off. It is final when such adjudication completely disposes of the suit. It
may be partly preliminary and partly final.

For a decree the following elements are required

 There must be an adjudication
o Judicial determination of the matter in a dispute, by a court. Not administrative
nature, order dismissing suit for default of appearance of parties, dismissing appeal
for want of prosecution as not dealt with in a judicial manner
 Such adjudication must have been done in a suit
o Not defined in the Code. Hanraj Gupta v. Official Liquidators of the Dehra Dun-
Mussoorie Electric Tramway Co Ltd: civil proceeding instituted by the presentation
of a plaint. Where there is no civil suit, there is no decree. However, some
enactments such as Hindu Marriage Act have provisions to treat applications as suits.
They are statutory suits and decisions are decrees here. Therefore, a proceeding
which doesn’t start with a plaint and not treated as a suit under other Acts cannot be
a suit under CPC.
 It must have determined the rights of the parties with regard to all or any of the
matters in controversy in the suit
o Rights= substantial, not merely procedural. Thus, order for dismissal of suit for
default of appearance e.g. not decrees as they do not determine rights of parties.
o Parties= parties to suit; plaintiff and defendant. Order on application by third party is
not a decree.
o Matters in controversy= subject matter of suit with reference to which some relief is
sought. Question relating to character, status of party suing, jurisdiction,
maintainability. Interlocutory orders not decrees.
 Such determination must be of a conclusive nature
o Final and conclusive as regards the court which passes it. An order dismissing an
appeal summarily under Order 41 or holding it to be not maintainable or decision

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dismissing suit for want of evidence or proof are decrees in as much as they decide
conclusively the rights of the parties to the suit
 There must be a formal expression of such adjudication
o Deliberate and given in the manner provided by the law.

Classes of decrees: preliminary, final, partly preliminary and partly final decree

Shankar v. Chandrakant
• Preliminary decree
 is one which declares the rights and liabilities of parties leaving the actual result to
be worked out in further proceedings
 As a result of further inquiries, conducted pursuant to preliminary decree, rights of
parties are fully determined and decree is passed according to such determination,
which is final. Both decrees are in the same suit

• Final decree
o When time for appeal has expired without any appeal being filed against
preliminary decree or the matter has been decided by the Highest Court
o When, as regards the court passing decree, same stands completely disposed
of

Preliminary decree
 Where adjudication decides rights of parties with regard to all or any matters in
controversy in the suit, but doesn’t dispose the suit, it is preliminary decree. Passed
in cases in which court has first to adjudicate upon rights of the parties and has then
to stay its suit. Only a stage in working out the rights of the parties which are to be
finally adjudicated by final decree.
 Allowed in the following suits
o Suits for possession and mesne profits (Order 20, Rule 12)
o Administration suits (Order 20, Rule 13)
o Suits for pre-emption (Order 20, Rule 14)
o Suits for dissolution of partnership (Order 20, Rule 15)
o Suits for accounts between principal and agent (Order 20, Rule 16)
o Suits for partition and separate possession (Order 20, Rule 18)
o Suits for foreclosure of a mortgage (Order 34, Rule 2-3)
o Suits for sale of mortgaged property (Order 34, Rule 4-5)
o Suits for redemption of a mortgage (Order 34, Rule 7-8)

Final decree
 Completely disposes of a suit and finally settles all questions in controversy between
parties and nothing further remains to be decided thereafter

• Kasi v. Ramanathan Chettiar

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o There could be more than one preliminary and one final decree
o Agreed by in Shankar case

Partly final and partly preliminary

 Can be passed e.g. in suit for possession of immovable property with mesne profits
where the court
o Decrees possession of the property and
o Directs enquiry into mesne profits
 Former is final, latter is preliminary because final decree for mesne profits can be
drawn only after enquiry

2. What is an ex parte decree? When can an ex parte decree against a

defendant be set aside? Discuss the remedies available to a defendant
against whom ex parte decree has been passed.
An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where
plaintiff appears and defendant does not appear when the suit is called out for hearing, and
if defendant is duly served, court may hear suit ex parte and pass decree against him.

Decree is not null and void nor inoperative but is voidable. Until annulled on legal and valid
grounds it is proper, lawful, operative and enforceable. Has all the force of a valid decree.

When set aside, ex parte decree requires issuance of notice to opposite party, giving him an
opportunity of hearing (principles of natural justice and fair trial). Discretion of the court
before setting aside the ex parte decree must be exercised judiciously and reasonably, not
arbitrarily and capriciously.

Application for setting aside ex parte decree is dismissed, fresh application cannot be filed
due to res judicata. If dismissal is for default of appearance or circumstances have changed,
a second application is maintainable.

Effect of setting aside ex parte decree is that the suit is restored, court to proceed to decide
suit as it stood before the decree.

Where appeal against ex parte decree has been decided on any ground other than the
withdrawal of such appeal, application to set aside ex parte decree does not lie. Mere filing
of appeal however does not mean court cannot look into setting aside its own ex parte
decree.

Remedies
 Apply to court by which such decree is passed to set it aside (Order 9, Rule 13)
o Defendant against whom ex parte decree has been passed may apply to set it
aside

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o Wide enough to include any person adversely affected by decree

o Application has to be made to court which passed that decree

• Grounds include
◦ Summons not duly served
 Rule 6 states if summons is duly served, then decree can be passed
 Thus, if satisfied it was not served, court will set aside decree

◦ Prevented by sufficient cause from appearing for hearing

 Liberally construed
 Should not be deprived of hearing unless something equivalent to
misconduct or gross negligence on his part
 Depends on facts and circumstances of the case
 Test: whether party honestly intended to remain present at hearing of
the suit and did his best to do so
 GP Srivastava v. RK Raizada: material date for sufficient cause for non-
appearance is the date on which ex parte decree was passed, not
previous negligence or past defaults
 each case to be decided on facts and circumstances not precedents
 2nd proviso states court not to set aside ex parte decree merely on
irregularity in service of summons where defendant had adequate
notice of date of hearing of suit and had sufficient time to appear and
answer plaintiff’s claim
 Burden of proof on defendant
 Examples
o Bona fide mistake as to date of hearing
o Late arrival of train
o Fraud of opposite party
o Death of relative of a party
o Imprisonment of party

• Prefer an appeal against such decree (Section 96(2)) or to file for revision under
Section 115 where no appeal lies
o Appellate court can consider only whether decree was wrong in law
o Other view is court has power to consider whether lower court was justified
in proceeding with the matter ex parte

• Apply for review Order 47 Rule 1

• File a suit on ground of fraud

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3. Essential conditions of Res Judicata

‘Ex captio res judicata’. Doctrine of res judicata or the rule of conclusiveness of a judgment
as to the points decided either of fact or of law or of law and fact in every subsequent suit
between the same parties. Once a matter is finally decided by a competent court, no party
can be permitted to reopen it in a subsequent litigation.

It is embodied in Section 11 of CPC. No court shall:

 Try any suit or issue in which the matter directly and substantially in issue 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
 Suit in which such issue has been subsequently raised, and has been heard and finally
decided by such Court

Explanations
1. Former suit= suit decided prior to suit in question whether or not it was instituted prior
thereto
2. Competence of court shall be determined irrespective of any provisions as to right of
appeal from decision of such court
3. Matter above-referred to must in the former suit have been alleged by one part and
either denied or admitted, expressly or impliedly by the other
4. Matter which might and ought to have been made ground of defence or attack in such
former suit shall be deemed to have been a matter directly and substantially in issue in
such a suit
a. Where parties have had an opportunity of controverting matter, should be taken
as same thing as if matter had actually controverted and decided, compel plaintiff
or defendant to take all grounds of attack or defence, bring forth the whole case
5. Relief claimed in plaint, not expressly granted by decree, for purpose of this section,
deemed to be refused
6. Persons litigating bona fide in respect of public right or private right in common or for
all, deemed to be persons so litigating
7. Section applies to proceeding for execution of decree
8. Issue heard and finally decided by court of limited jurisdiction competent to decide
such issue= res judicata subsequently notwithstanding such court of limited
jurisdiction was not competent to try such suit or suit in which issue has been
subsequently raised

General principles of res judicata

 Principle is founded on justice, equity and good conscience requiring that a party
who has once succeeded on an issue should not be harassed by multiplicity of
proceedings involving the same issue.

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 Avoids vexatious litigation.

 Based on public policy and is applicable of proceedings.
 To be interpreted liberally.
 Party may waive the plea or court can decline plea by declaring previously it was
not properly raised

Object
 No man should be vexed twice for the same cause
 It is in the interest of the State that there should be an end to litigation
 A judicial decision must be accepted as correct

Examples:
 A sues B for breach of contract and it gets dismissed. Subsequent suit by A against B
for breach of same contract is barred as right to claim of damages has been decided
in previous suit
 Petitioners filed writ petition at High Court which was dismissed, filed substantive
petition in SC under 32 for same relief on same grounds, said to be res judicata
(Daryo v. State of UP)

Difference with res judicata and res sub judice

 Res judicata applies to matter adjudicated upon, res sub judice applies to matter
pending in trial
 Res judicata bars the trial of a suit or an issue which has been decided in former suit,
res sub judice bars trial of a suit which is pending decision in previously instituted
suit

Conditions (explanations)
 Matter directly and substantially in issue in subsequent suit or issue must be the
same matter which was directly and substantially in issue actually (exp. II) or
constructively (explanation IV)
 Former suit must be suit between same parties or between parties under whom
they or any of them claim (Explanation VI)
 Such parties must have been litigating under same title in former suit
 Court which decided former suit must be court competent to try subsequent suit
or suit in which such issue is subsequently raised (exp. II and VIII)

Matter directly and substantially

 Might and ought to have been ground of defence or attack in former suit
 Actual or constructive
 Constructive: if plea could have been taken by party, should not be permitted to take
plea against same party in subsequent proceedings for same subject matter

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Matter collaterally or incidentally in issue

 Will not operate as res judicata

 Ancillary to direct and substantive issue, no relief is claimed yet put in issue

4. Write a note on parties to a suit with a special reference to Mis-joinder

and non-joinder of parties to suit.
Suit: not defined in the Code. Suit is a generic term, referring to proceeding by one person
or persons against another or others in a court of law wherein the plaintiff pursues the
remedy which the law affords him for redress of any injury or enforcement of right, whether
at law or in equity

Essentials
 Opposing parties
 Subject-matter in dispute
 Cause of action
 Relief

Order 1: deals with parties to a suit. Provisions for addition, deletion, substitution of parties,
joinder, misjoinder, non-joinder of parties and objection as to misjoinder and non-joinder.

Plaint: not defined in code. It is a private memorial tendered to court in which the person
sets forth his cause of action, the exhibition of an action in writing

Joinder of parties: act may be done by single individual and may adversely affect another
individual. Question only arises where act is done by two or more persons or it affects two
or more persons.

Joinder of plaintiffs Rule 1:

all persons may be joined in one suit as plaintiffs if the following two conditions are met to
avoid multiplicity of proceedings and unnecessary expenses:

 Right to relief alleged to exist in each plaintiff arises out of same act or transaction
 Case is of such character that if such persons brought separate suits, any common
questions of law or fact would arise

Joinder of defendants Rule 3:

all persons may be joined in one suit as defendants if following two conditions are met:

 Right to relief alleged to exist against each defendant arises out of same act or
transaction
 Case is such character that if separate suits were filed against such persons, common
questions of law or fact would arise

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Where it appears to the court that joinder may embarrass or delay the trial of suit, may pass
order for separate trials. Court can give judgment for one or more plaintiffs as found
entitled to relief against one or more of the defendants as may be found liable.

Difference between necessary and proper parties

 Necessary party is one whose presence is indispensable to the constitution of suit
against whom the relief is sought and without whom no effective order can be passed
 Proper party: in whose absence an effective order can be passed but whose presence is
necessary for complete and final decision on question involved in the proceeding
 Decree cannot be passed without necessary party being present
 Decree can be passed without proper party being present

Test for necessary party (Kasturi v. Iyyamperumal)

 Right to some relief against such party in respect of matter involved in proceeding in
question
 Not possible to pass effective decree in absence of such party

Non-joinder or misjoinder of Parties Rule 9:

where person who is necessary or proper party to a suit has not been joined as party to suit,
it is a case for non-joinder. If two or more persons are joined as plaintiffs or defendants in
one suit in contravention to Order 1 Rules 1 and 3 and they are not necessary nor proper
parties, case of misjoinder of parties.

 Suit cannot be dismissed merely on ground of non-joinder or misjoinder, but rule

does not apply to non-joinder of necessary party
 Person likely to be affected by decree not party to suit or appeal, liable to be
dismissed on that ground alone

• B. Prabhakar Rao v. State of AP

o SC took the view that interests of the persons represented and not
represented were identical and were sufficiently well represented, thus liable
not to be struck down

• Section 47:
no decree under this section can be reversed or substantially varied in appeal inter
alia on account of misjoinder or non-joinder of parties not affecting merits of case or
jurisdiction of court, provided part is not necessary party

Objections as to non-joinder or misjoinder of parties Rule 13

 Must be taken at earliest opportunity or considered to be waived
 If objection for non-joinder of necessary party made by defendant at earliest stage,
plaintiff declines to add necessary party, cannot be allowed in appeal to rectify error
by applying for amendment

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Striking out, adding, substituting parties Rule 10

• Adding or substituting plaintiff (Rule 10 (1))
o After filing of suit, application for addition or substitution of plaintiff can be
made if relief cannot be without joining some other person as plaintiff or
where it is found some other person and not original plaintiff is entitled to
relief as prayed for
o Object is to save honest plaintiffs believe bona fide in maintainability of their
claims being non-suited on mere technical grounds

◦ Conditions (Razia Begum v. Sahebzadi Anwar Begum)

 Suit filed in name of wrong person as plaintiff
 Such mistake to be bona fide
 Substitution or addition of plaintiff is necessary for determination of
real matter in dispute

• Striking out or adding parties

o Rule 10 (2): court to add any person as party to suit on two grounds
 Such person ought to have been joined as plaintiff or defendant, and not so
joined
 Without presence, question involved cannot be completely decided

Power + duty of Court

• Considerations of court
◦ Plaintiff is dominus litis – best judge of his interests
 Court should let him choose opponent
 Normally should not compel him to fight against a person whom he doesn’t
want

◦ If court is satisfied presence of particular person is necessary, irrespective of

wishes of plaintiff, court may exercise power to join person as party to suit
 Either through application or suo motu
 Any stage of proceedings

• Anil Kumar v. Shivnath

o Object of rule is to bring on record all persons who are parties to the dispute
relating to the subject-matter so that the dispute may be determined in their
presence at the same time without any protraction, inconvenience and to avoid
multiplicity of proceedings

Case laws
• Razia Begum v. Sahebzadi Anwar Begum
o Question of addition of parties under Rule 10 is of judicial discretion to be
exercised in view of all facts and circumstances of particular case

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o Suit relating to property, person may be added as party if they have direct
interest as distinguished from commercial interest in subject-matter of
litigation

5. Write a note on stay of Suit: Res Sub Judice under sec 10 of CPC.
Section 10 deals with stay of suits:
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 India having jurisdiction to
grant the relief claimed, or in any Court beyond the limits of India established or continued
by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation: the pendency of suit in foreign court does not preclude courts in India from
trying suit founded in same cause of action

Rule applies to trial of suit, not institution thereof. Doesn’t preclude court from passing
interim orders, injunction, stay, appointment of receiver etc. But applies to appeals or
revision.

Object
 Prevent courts of concurrent jurisdiction from simultaneously entertaining and
adjudicating two parallel litigations in respect of same cause of action, same subject
matter and same relief.
 Policy is to confine plaintiff to one litigation.
 Protect person from multiplicity of proceedings, avoid conflict of decisions, and
avert inconvenience to parties.
 Does not bar suit but bars trial if certain conditions are met.

Conditions
 Two suits, one previously instituted, other subsequently instituted
 Matter in subsequent suit must be directly and substantially in issue in previous
suit
 Both suits must be between same parties or their representatives
 Previously instituted suit must be pending in same court in which subsequent suit is
brought or in any other court in India or in any court beyond limits of India
established or continued by CG or before SC
 Court in which previous suit is instituted must have jurisdiction to grant relief
claimed in subsequent suit
 Such parties must be litigating under same title in both suits

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Manohar Lal Chopra v. Seth Hiralal

If fulfilled, court can’t proceed as Section 10 is mandatory and no discretion is there with
court. Stay order can be made at any stage. But court can examine on merits.

Test
Whether decision in previously instituted suit would operate as res judicata in subsequent
suit. If so, must be stayed.

Decree passed in contravention of section 10 is not a nullity, cannot be disregarded in

execution proceedings. Can be waived. Interim orders for stayed suit may be made.

6. What do you mean by pleading? Explain the objective and essential of

pleadings, support your answer with illustration
Order 6 deals with pleadings in general.

Pleading is defined as a plaint or a written statement as per Order 6 rule 1. They are
statements in writing drawn up and filed by each party to a case, stating what their
contentions will be at trail and giving all such details as his opponent needs to know in order
to prepare his case in answer.

Plaintiff’s pleading= plaint (statement of claim in which plaintiff sets out his cause of action
with all necessary particulars) and

Defendant’s pleading=written statement, defence in which defendant deals with every

material fact alleged by plaintiff in plaint and new facts in his favour along with legal
objections.

Object (Throp v. Holdsworth, Ganesh Trading Co. v. Moji Ram)

 Bring parties to definite issues and to diminish expense and delay and to prevent
surprise at hearing.
 Party is entitled to know the case of his opponent so that he can meet it.
 Ascertain real dispute, narrow down area of conflict and see where two sides differ,
preclude one party from taking other by surprise and prevent miscarriage of justice.

Importance
 Define issues between parties for final decision of the court at the trial, manifest and
exert importance throughout process of litigation
 Demonstrate which party the burden of proof lies, who has right to open the case
 Determine range of admissible evidence which parties adduce at trial
 Lay down limit on the relief that can be granted by Court

Rule 2 (1)

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

• State facts and not law

(based on principle that judge is bound to apply correct law even if incorrect
law is pleaded by party)
 Existence of custom or usage is question of fact, must be specifically
pleaded
 Intention is question of fact
 Waiver, negligence is plea of fact
 Plea of maintainability is question of law, not to be pleaded
 Mixed question of law and fact should be specifically pleaded
 Point of law required to be substantiated by facts should be pleaded
with necessary facts

• Facts should be material

 All facts upon which plaintiff’s cause of action or defendant’s defence
depends
 All facts which must be proved in order to establish defence or right to relief
 Udhav Singh v. Madhav Rao Scindia: all primary facts which must be proved
at trial by party to establish existence of cause of action or his defence are
material facts
 Distinction between material fact and particulars (Virender Nath v Satpal
Singh)
 Particulars= details in support of material facts pleaded by party
 So as to enable opposite party to know the case he is required to meet and
to put him on guard
 If not stated, could mean plea has not been raised at all and court will not
allow party to lead evidence of fact at trial unless leave is granted to amend
pleadings

• Should not state evidence

 Facta probanda
 Facts required to be proven
 Facta probantia
 Facts by means of which they are to be proved
 Should only contain facta probanda

• Concise form

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 Absence of specific plea puts defendant at great disadvantage, must know

what case he has to meet, cannot be kept guessing what plaintiff wants to
convey by vague pleading

Rule 2 – divided to paragraphs, numbered

Rule 3 – dates, sums and numbers to be expressed as figures as well as words
Rule 4 – (Bishundeo Narain v. Seogeni Rai)
 Wherever misrepresentation, fraud, breach of trust, wilful default, undue influence
is pleaded, particulars with dates and items should be stated

Rule 5 – further and better statement of the nature of the claim or defence may be
ordered
A further and better statement of the nature of the claim or defence, or further and better
particulars of any matter stated in any pleading, may in all cases be ordered, upon such
terms, as to costs and otherwise, as may be just

Rule 6 – but non-performance of CP must be specifically and expressly pleaded

 Performance of condition precedent need not be pleaded in since it is implied in the
pleadings but non-performance of this must be specifically and expressly pleaded

Rule 7 – Amendment is to be allowed for new ground

 Amendment is to be allowed for new ground of claim or contain any new allegation
of fact if inconsistent with pleadings of the party

Rule 8
 Bare denial of contract by opposite party= denial of factum of contract and not
legality, validity or enforceability of such contract

Rule 9 - Documents need not to be set out at length

 Documents need not to be set out at length in pleadings unless words therein are
material

Rule 10 – Malice pleading only as fact without setting out circumstances

 Where malice, fraudulent intention, knowledge or other condition of the mind of the
person is material, may be alleged in pleading only as fact without setting out
circumstances which it is to be inferred

Rule 11 – Notice
 Where giving notice is necessary or condition precedent, pleadings should only state
regarding giving of such notice, not form or precise terms of such notice or
circumstances from which it is to be inferred, unless material

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Rule 12
 Implied contracts or relations between persons may be alleged as fact, and series of
letters, conversations and circumstances from which they are to be inferred should
be pleaded generally

Rule 13

 Facts which law presumes in favour of party or as to which burden of proof lies upon
other side need not be pleaded

Rule 14

 Every pleading to be signed by party or one of parties or by his pleader

Rule 15

 Every pleading to be verified on affidavit by party or by one of the parties or by

person acquainted with facts of case

Rule 16

 Court can order striking out of pleading if it is unneccesary, scandalous, frivolous,

vexatious, tends to prejudice, embarrass or delay fair trial of suit

Rule 17

 Court can allow amendment of pleading

7. What is a plaint? Explain the parameters on a plaint.

Plaint has not been defined in the Code. It can be said to be a statement of claim, a
document, by presentation of which the suit is instituted. Object is to state the grounds
upon which assistance of the Court is sought by the plaintiff. Pleading of plaintiff.

Order 7, Rules 1-8.

• Particulars
a) Name of the court in which suit is brought
b) Name, description, place of residence of plaintiff
c) Name, description, place of residence of defendant, so far as they can be ascertained
d) Where the plaintiff or defendant is minor or person of unsound mind, a statement to
that effect
e) Facts constituting cause of action and when it rose
f) Facts showing Court has jurisdiction
g) Relief which plaintiff claims
h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed o relinquished; and

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i) a statement of the value of subject matter of the suit for the purposes of jurisdiction
and of court fees so far as the case admits
2) in money suits, where plaintiff seeks recovery of money, plaint shall state precise
amount claimed but where suit is for accounts or mesne profits or for movables in
possession of defendant or debts which cannot be determined, approximate amount or
value thereof
3) where subject matter is immovable property, a description of the property sufficient to
identify it e.g. boundaries, survey numbers
4) where plaintiff files suit in representative capacity, facts showing that the plaintiff has an
actual existing interest in the subject matter and that he has taken steps that may be
necessary to enable him to file such a suit
5) interest and liability of defendant in subject matter of the suit
6) if suit instituted after expiration of period by law, show grounds on which exemption to
be granted
a) proviso allows for court to permit plaintiff to rely on new ground for exemption if it
is not inconsistent with grounds mentioned in plaint
7) every plaint to specifically ask for relief which plaintiff claims and not necessary to ask
for general or other relief which may be always given by the Court
8) Where the plaintiff seeks relief in respect of several distinct claims or causes of action
founded upon separate and district grounds, they shall be stated as far as may be
separately and distinctly.
a) Where a question arises as to whether the plaintiff has asked for a particular relief in
his plaint, the plaint must be read as a whole and substance of the matter and not
the form thereof should be considered (Bhagwati Prasad v. Chandramaul)
9) Lays down procedure when plaint if admitted by the court, filing of copies of the plaint
by the plaintiff and also requires him to pay requisite fees for the service of summons on
defendants within seven days
10) Return of plaint at any state of the suit be returned to be presented to the Court in
which the suit should have been instituted
a) 10-A
i) Procedure to be followed by court before plaint is ordered to be returned to be
presented to proper court
(1) Judge returning plaint to make endorsements regarding
(a) Date of presentation
(b) Date of return
(c) Name of party presenting
(d) Reasons for returning
b) 10-B
11) Rejection of plaint in certain cases
a) Plaint doesn’t disclose cause of action

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i) Exercised only if court comes to conclusion that even if all allegations set out in
plaint are proved, plaintiff wouldn’t be entitled to any relief
ii) Where plaint doesn’t disclose cause of action, clever drafting, ritual of repeating
words, cannot insert cause of action even after meaningful reading of plaint
b) Where relief claimed is undervalued
c) Where plaint is insufficiently stamped
i) Failure to pay court fees, plaint is written upon paper insufficiently stamped
d) Suit barred by law
e) Plaint is not in duplicate
f) Noncompliance with statutory provisions
g) Other grounds

Parties to suit

Two parties: plaintiff and defendant. Can be more than one plaintiff or more than one
defendant.

Cause of action

 It is a bundle of essential facts which is necessary for the plaintiff to prove before he
can succeed (Ganesh Trading Co. v. Moji Ram) or which gives the plaintiff the right to
relief against the defendant (ABC Laminart (P) Ltd. v. AP Agencies).
 Cooke v. Gill: every fact which it would be necessary for plaintiff to prove, if
traversed, in order to support his right to the judgment of the court
 Refers entirely to grounds set forth in plaint as cause of action or media upon which
plaintiff asks the court to arrive at conclusion in his favour
 Necessary to state when such cause of action arose, enabling defendant and court to
ascertain from the plaint whether fact and law, cause of action arose or not

Jurisdiction of court

 Must state all facts showing how court has pecuniary and territorial jurisdiction over
subject matter of the suit

Valuation of suit

 Plaintiff has to state in plaint valuation of subject matter for pecuniary jurisdiction of
court and court fees

8. What is a written statement? Enumerate the actions that could be

taken by court if a written statement is not filed within the stipulated time.
Written statement has not been defined in the Code but it is a term of specific connotation
ordinarily signifying a reply to the plaint filed by the plaintiff (Food Corporation India v.

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Yadav Engineer & Contractor). Deals with every material fact alleged by the plaintiff in plaint
and also states new facts in his favour or legal objects against claim of plaintiff.

Can be filed by defendant or by duly constituted agent. Several defendants and a common
written statement can be filed signed by all. Sufficient if verified by one of them who is
aware of facts of case and in a position to file an affidavit? Written statement filed by one
doesn’t bind all others.

Defendant should within thirty days from service of summons on him, present a written
statement of his defence. That said period can be extended up to ninety days. Kailash v.
Nanhku held that 90 days is directory and permissive, not mandatory after insertion of
proviso 1 of Rule 1.

Order 8
1) Thirty days from service of summons to present written statement, period can be
extended to 90 days
2) New facts, such as the suit is not maintainable or transaction is void/voidable and all
such grounds of defence that would take plaintiff by surprise or would raise issues of
fact not arising out of plaint such as fraud, limitation, release payment, performance or
facts showing illegality must be raised
3) Defendant to deal specifically with each allegation of fact which he does not admit truth,
except damages. Not enough to deny generally the grounds alleged by plaintiff.
4) Where defendant denies allegation of fact in plaint, must answer point of substance and
not be evasive.

• 5) Specific denial
a) If allegation of fact in plaint not denied specifically or by necessary implication, taken
to be admitted
b) defendant has not filed a pleading, it shall be lawful for the court to pronounce
judgment on the basis of the facts contained in the plaint, except as against a person
under a disability, but the court may, in its discretion, require any such fact to be
proved
c) the court shall have due regard to the fact whether the defendant could have, or
has, engaged a pleader
d) Whenever a judgment Is pronounced under this rule, a decree shall be drawn up in
accordance with such judgment and such decree shall bear the date on which the
judgment was pronounced.

• 6) Particulars of set-off to be given in written statement

e) Where in a suit for the recovery of money the defendant claims to set-off against the
plaintiff's demand any ascertained sum of money legally recoverable by him from
the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and
both parties fill the same character as they fill in the plaintiff's suit, the defendant

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may, at the first hearing of the suit, but not afterwards unless permitted by the
Court, presents a written statement containing the particulars of the debt sought to
be set-off.
f) Effect of set-off—The written statement shall have the same effect as a plaint in a
cross-suit so as to enable the Court to pronounce a final judgment in respect both of
the original claim and of the set-off: but this shall not affect the lien, upon the
amount decreed, of any pleader in respect of the costs payable to him under the
decree.
g) The rules relating to a written statement by a defendant apply to a written
statement in answer to a claim of set-off.
5) Where defendant relies on several distinct grounds of defence or set-off or counterclaim
founded upon separate and distinct facts, they should be stated separately and distinctly
6) New ground of defence arisen after institution of suit or presentation of written
statement claiming set-off or counterclaim may be raised by defendant or plaintiff, as
case may be, in written statement
7) No pleading after the written statement except one for a set-off or a counter-claim shall
be presented except with the leave of the court and the court may at any time require
the parties to file a written statement or an additional written statement and may fix a
date of not more than 30 days for presenting the same.
8) where either party doesn’t present the written statement as under Rules 1 or 9, the
court may pass judgment against him or any other order as it deems fit and then draw
up a decree on such judgment.

Modula India v. Kamakshya Singh Deo: not mandatory to pass decree in favour of plaintiff if
defendant failed to present a written statement

9. Explain different kinds of jurisdiction

Ubi jus ibi remedium – wherever there is a right, there is a remedy. Litigant having grievance
of civil nature has right to institute civil suit in competent court unless cognizance is either
expressly or impliedly barred by any statute.

Section 9 – courts to try all civil suits unless barred

 Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their
cognizance is expressly or impliedly barred
o Expl 1: suit in which right to property or to an office is contested is a suit of civil
nature notwithstanding such right may depend entirely on decision of questions as
to religious rites or ceremonies
o Expl 2: immaterial whether or not fees are attached to the office referred to in expl 1

Jurisdiction
 Not defined in the code, juris and dicto which means I speak by the law

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 Power or authority of a court of law to hear and determine the cause or matter
 Power to entertain, deal with and decide a suit, an action, petition or other proceeding
 Official Trustee v. Sachindra Nath
o Its jurisdiction must include power to hear and decide the question at issue, the
authority to hear and decide the particular controversy that has arisen

Jurisdiction and Consent

• Consent cannot confer nor take away jurisdiction of a court – AR Antulay v. RS Nayak
• If court has no inherent jurisdiction, neither acquiescence nor waiver nor estoppel can
create it. Decree passed without jurisdiction is non est and its validity can be set up
whenever it is sought to be enforced as a foundation for a right, even at the stage of
execution or in collateral proceedings. Decree by court without jurisdiction is coram
non judice.

• Where court has jurisdiction to decide a dispute, same cannot be taken away or
ousted by consent of parties.
Absolute ousting of jurisdiction of court would be unlawful and void, against public policy (ex
dolo malo non oritur actio). If two or more courts have jurisdiction to try the suit, open to
parties to select forum and exclude other forums.

Lack of jurisdiction and irregular exercise of jurisdiction

 If a court has jurisdiction but it is irregularly exercised, the defect does not go to the
root of the matter and the error, if any, in exercising the jurisdiction can be remedied in
appeal or revision and when there is no such remedy or is not availed, the decision is
final

• Ittyavira Mathai Mathai v. Varkey Varkey –

if the party aggrieved does not take appropriate steps to have that error corrected, the
erroneous decree will hold good and will not be open to challenge on the basis of being
nullity

• Difference between jurisdictional error and error of law within jurisdiction

◦ ML Sethi v. RP Kapur – every error of law is a jurisdictional error; all
administrative actions should be simply lawful whether or not jurisdictionally lawful
Basis to determine jurisdiction – Bank of Baroda v Moti Bhai
 Jurisdiction of a court should normally be decided on the basis of the case put
forward by the plaintiff in his plaint and not by the defendant in his written
statement. On the question of jurisdiction, one must always have regard to the
substance of the matter and not to the form of the suit

Jurisdictional Fact
 Jurisdictional fact is where the jurisdiction of a court, tribunal or authority may
depend upon fulfilment of certain conditions or upon existence of a particular fact.

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Existence of this is condition precedent for assumption of jurisdiction. Question to

be determined at the commencement, not at conclusion of enquiry.

Types of jurisdiction
 Territorial – court’s local or territorial limits, fixed by the Government.
 Pecuniary – court will have jurisdiction only over those suits the amount or value of
the subject matter of which does not exceed the pecuniary limits of its jurisdiction
 Jurisdiction as to subject matter – certain courts are precluded from entertaining
certain suits. E.g. only district or civil judge has jurisdiction in testamentary matters
 Original/appellate – court of first instance decides suits, petitions or applications.
Appellate jurisdiction is the power or authority of a superior court to re-hear by way
of appeal, revision

Conditions under Section 9

• Suit must be of civil nature
o Civil- pertaining to private rights and remedies of a citizen as distinguished
from criminal, political, etc.
o Nature- fundamental qualities of a person or thing; identity or essential
character
o Relates to determination of civil right and enforcement thereof
o Subject matter

• Conditions
◦ Suit has to be of a civil nature
 Civil: pertains to private rights, remedies of citizen as distinguished by
criminal, political, etc.
 Nature: fundamental qualities of person or thing
 Civil nature: determination of a civil right and the enforcement thereof,
determined by subject matter
 Explanation II: provides that suit relating to religious office is maintainable
whether or not it carries any fees or whether or not it is attached to a
particular place
 Most Rev. PMA Metropolitan v. Moran Mar Marthoma
o Matter is extended to matters that are religious where right to property
or office is involved irrespective of fee attached to office or not
o Use of shall means court cannot refuse to entertain suit if it is of
description mentioned in section

◦ Cognizance of such suit should not have been expressly or impliedly barred
 Expressly barred means barred by any enactment for the time being in
force by a competent legislature while not contravening provisions of the
Constitution

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Presumption in favour of jurisdiction of civil court, provision of

exclusion to be strictly construed
 Remedy provide by statute not adequate, all questions cannot be
decided by special tribunal, jurisdiction of civil court is not barred
 Impliedly barred is when barred by general principles of law
 Where specific remedy given by statute, thereby deprives person who
insists upon a remedy of any other form that that given by the statute
 Sometimes public policy: recovery of costs incurred in criminal
prosecution, against judge in course of his duties, political questions

• Exclusion of jurisdiction
◦ Secy. Of State v. Mask & Co.
 If jurisdiction excluded, civil courts have jurisdiction to examine into cases
where the provisions of the Act have not been complied with, or statutory
tribunal has not acted in conformity with fundamental principles of judicial
procedure

◦ Firm Seth Radha Kishan v. Admin., Municipal Committee, Ludhiana

 Mere conferment of special jurisdiction on tribunal does not exclude
jurisdiction of civil courts, suit in civil court will always lie to question order of
tribunal created by statute even if its order is made final, if the said tribunal
abuses its power and does not act under the act and is in violation of its
provisions

General Principles
 Civil court has jurisdiction for civil nature unless barred expressly or impliedly
 Consent can neither confer nor take away jurisdiction of court
 Decree passed without jurisdiction is a nullity, validity can be challenged at any stage
of proceedings
 Court has inherent power to decide own jurisdiction
 Jurisdiction depends on averments made in plaint, not in defence statement
 Substance of matter important, not form, for deciding jurisdiction
 Every presumption should be made in favour of jurisdiction of court
 Statute ousting jurisdiction must be strictly construed
 Burden of proof for exclusion of jurisdiction is on party who asserts it
 Where barred, court can still decide whether provisions of Act have been complied
with or whether order was passed de hors the provisions of law (Dhulabhai v. State
of MPs

10. Explain place of Suing in a civil court.

Place of suing: the venue for trial, nothing to do with the competency of court

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• Section 15: plaintiff required to file suit in court of lowest grade competent to try it.
• Section 16-18: suits relating to immovable property
• Section 19: suits for compensation for wrong to person or movable property
• Section 20: residuary section, deals with all cases not included in above mentioned
• Section 21: defect as to territorial or pecuniary jurisdiction can be waived, appellate
or revision court to allow objection as to place of suing or pecuniary limits forbidden
• Section 21A: bars substantive suit for setting aside a decree passed by court on
ground of want of territorial jurisdiction

Pecuniary jurisdiction
Suitor to institute suit in court of lowest grade. Rule of procedure only, so decree passed by
higher grade cannot be said to be without jurisdiction, irregularity covered by Section 99.

• Mode of valuation
o Plaintiff’s valuation in plaint that determines jurisdiction prima facie, not amount
for which ultimately the decree may be passed by court

◦ Kiran Singh v. Chaman Paswasan

 Valuation of suit changed after appeal, but it did not affect the decision of the
District Court
o Usually will accept valuation of plaintiff in plaint, decide suit on merits
o If plaintiff deliberately undervalues or overvalues the claim, plaint cannot be said to
be correctly valued and it is the duty of the court to return it to be filed in the
proper court
o If valuation is false to avoid jurisdiction of proper court, may require plaintiff to
prove valuation is proper
o Court can pass decree for an amount exceeding pecuniary limits of jurisdiction, as
once court has seized the matter, it does not lose jurisdiction by the amount finally
ascertained in the suit

Territorial jurisdiction
• Suits for immovable property (16-18)
o Section 16 a-e deal with
 Suits for recovery of immovable property
 Suits for partition of immovable property
 Suits for foreclosure, sale, redemption in case of mortgage of or charge upon
immovable property
 Suits for determination of any other right to or interest in immovable
property
 Suits for torts to immovable property
o Must be filed in local limits of jurisdiction

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o Section 17: where suit is to obtain relief respecting or damage for torts to,
immovable property situated within jurisdiction of different courts, suit can be
filed in court within local limits of whose jurisdiction any portion of the property is
situated, provided that the suit is within pecuniary jurisdiction of such court
o Section 18: where uncertainty is there as to where the property is situated within
jurisdiction of one or other several courts, one of these courts once satisfied as to
uncertainty, can after recording a statement to that effect proceed to entertain
and dispose of the suit

• Suits for movable property (19)

o Movables follows the person (Mobilia sequntur personam)
o Option of the plaintiff either at place where the wrong is committed or where the
defendant carries on business or personally works for gain
o Where wrong is of series of acts, suit can be filed at any place where any of the
acts have been committed
o Where wrongful act committed at once place and consequences ensue at another
place, suit can be instituted at option of plaintiff where action took place or
consequences ensued
 Suits for compensation for wrong (tort)
o At option of plaintiff either where such wrong is committed, where defendant
resides, carries on business or personally works for gain

• Other suits (20)

o All cases not covered by foregoing rules, all suits can be filed at plaintiff’s option in
any of the following courts
 Where cause of action, wholly or partly arises
 Where defendant resides or carries on business or personally works for gain
 Where two or more defendants, any of them resides or carries on business or
personally works for gain, provided that in (a) either leave of court is
obtained or (b) the defendants who do not reside or carry on business or
personally work for gain at that place acquiesce in such institution

• Objection of suit (21)

o Where a court takes upon itself to exercise a jurisdiction it does not possess, its
decision amounts to nothing (Halsbury)
o Limitation does not apply to territorial or pecuniary jurisdiction inasmuch as
objections to such jurisdiction regarded by Code as merely technical and unless
raised at earliest possible opportunity, not to be entertained in appeal or
revision for first time
o Hira Lal v. Kalinath- suit which was to be filed in Agra filed in Bombay High Court
with leave of court, held objection of such jurisdiction falls within Section 21

◦ Section 21

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 Objection taken in court of first instance

 Taken at earliest possible opportunity and in cases where issues are settled
or before settlement of issues
 Failure of justice consequently
o If defendant allows trial court to proceed to decide matter without raising an
objection as to place of suing and takes the chance of verdict in his favour, he
waives the objection and has no permission to raise it later

◦ Kiran Singh v. Chaman Paswan

 Case not liable to be reversed purely on technical grounds unless it has
resulted in failure of justice and policy of legislation is to treat territorial and
pecuniary jurisdiction as technical

11. Summons to defendants

Where plaintiff files suit, defendant to be informed that suit has been filed against him and
that he is required to appear in the Court to defend it. Intimation sent to defendant is
technically known as summons. Has not been defined in the Code.

As per dictionary: document issued from office of court of justice calling upon person to
whom it is served to attend before a judge or officer of the court for a certain purpose.

Object
Defendant must be given an opportunity to what he has to say against the prayer made by
the plaintiff. Audi alteram partem – one cannot be condemned without being heard. If not
served, decree against defendant not binding. Summons are as per Appendix B, First
Schedule of Code

Order 5 – summons to defendants

Rule 1 – duly instituted summon to be issued to defendant to appear and answer such claim
on specific day after institution of suit

Rule 2 – defendant may appear

 In person, by pleader to answer or accompanied by person able to answer

Rule 3 – court can order defendant or plaintiff to appear in person if Court sees reason

Rule 4 – no party to be ordered in person unless resident is within certain limits

Rule 9 - Where the defendant resides within the jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that jurisdiction who is empowered to accept the
service of the summons, the summons shall, unless the Court otherwise directs, be
delivered or sent to the proper officer to be served by him or one of his subordinates.

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The proper officer may be an officer of a Court other than that in which the suit is instituted,
and, where he is such an officer, the summons may be sent to him by post or in such other
manner as the Court may direct.
 Refusal of acceptance is valid service
 Properly addressed, prepaid and duly sent by registered post acknowledgement due
(RPAD) there will be a presumption of valid service of summons even in absence of
acknowledgment slip
Rule 10 - service of summons should be made by delivering or tendering a copy thereof

Rule 11 – where there are two or more defendants, service of summons should be made on
each defendant

Rule 12 – wherever practicable summons to be served to defendant in person or his

authorised agent

Rule 13 – in suit relating to any business or work against a person, not residing within
territorial jurisdiction of court issuing summons, may be served to manager or agent
carrying on such business or work

Rule 14 – suit for immovable property, service of summons cannot be made on defendant
personally and defendant has no authorised agent, service may be made on any agent of
defendant in charge of property

Rule 15 – where defendant is absent from resident at time of service of summons and there
is no likelihood of him being found at his residence within a reasonable time and he has no
authorised agent, summons may be served on any adult male or female member of
defendant’s family residing with him, but servant is not family member

Rule 16 – where serving officer delivers or tenders copy of summons to defendant

personally or his agent or other person on his behalf, person to whom copy is delivered or
tender to must make acknowledgment of service of summons

Rule 17 – substituted service

 Defendant or agent refuses to sign acknowledgment or serving after cannot find
defendant who is absent from residence at time of service of summons and no
likelihood of being found at residence within reasonable time and no authorised
agent nor person on whom service can be made, service of summons can be made
by affixing copy on outer door or some other conspicuous part of house in which
defendant ordinarily resides or carries on business or personally works for gain.
Serving officer has to return the original to court with report stating about affixing
the copy, circumstances, name and address, who identified the house, whose
presence it was affixed

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Rule 18 – serving officer must make endorsement on original summons stating time and
manner of service thereof and the name and address of the person, if any, identifying the
person served and witnessing the delivery or tender of summons

 Within local limits of court’s ordinary original jurisdiction

 Outside such limits but at a place less than 50 miles or 200 miles from courthouse
 Woman not appearing in public
 Who is entitled under the Code for exemption

Rule 19 – if court satisfied either by affidavit or on examination, declare that summons has
been duly served or make further enquiry if it thinks fit

Rule 20 – Rule 17 but on order of the court

Where defendant resides within jurisdiction of another court or another state, summons
may be sent to court where he resides, such court will serve summons on defendant – Rules
21, 23 Section 28

Where suit has been duly filed by presentation of plaint, court must issue summons to
defendant calling upon him to appear and answer claim of plaintiff by filing a written
statement within thirty days from date of service of summons – Section 27

Section 29 – service of foreign summons may be effected by sending them to courts in

territories in which provisions of this code apply and served as if they were summonses
issued by such courts

12. Foreign judgment

Foreign court is a court situated outside India and not established or continued by authority
of Central Government – Section 2 (5)

Foreign judgment is a judgment of a foreign court – Section 2 (6)

 Adjudication by a foreign court upon a matter before it

Section 13 – when foreign judgment not conclusive

 Shall be conclusive as to any matter thereby directly adjudicated upon between the
same parties under whom they or any of them claim litigating under the same title
except

◦ Non-Binding nature when

 Where not pronounced by a court of competent jurisdiction
 Not given on merits of the case

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 Appears prima facie to be founded on incorrect view of international

law or refusal to recognise law in India in cases where such law is
applicable
 Judgment opposed to natural principles of justice
 Obtained by fraud
 Claim is founded on a breach of law in India
 Embodies res judicata in foreign judgments, principle of private international law
that judgment delivered in foreign court of competent jurisdiction can be enforced in
India
o Substantive, not merely procedure

Object
 Principle – court of competent court has adjudicated upon claim, legal obligation
arises to satisfy the claim
o Justice equity and good conscience

Not binding when

 If one of the conditions (a-f) not satisfied, open to collateral attack

◦ Not competent court

 Judgment or order based by court which has no jurisdiction is null and void
 Gurdyal Singh v. Rajah of Faridkote: A filed suit against B in Faridkot, B
didn’t appear for hearing, ex parte decree passed against him, B was native
of Jhind, left Jhind and went to take up service under A, left B’s service later
and returned to Jhind, when suit was filed he was not residing or domiciled
in Faridhkot, therefore they had no jurisdiction to entertain a suit against B

◦ Not on merits
 Case on merits when after taking evidence and applying mind regarding
truth or falsity of plaintiff’s case, judge decides case one way or another
 Test: whether it was merely formally passed as a matter of course or by way
of penalty for any conduct of the defendant, or based upon consideration of
truth or falsity of plaintiff’s claim, notwithstanding the fact that the
evidence was led by him in absence of defendant

◦ Against international or Indian law

 Incorrect view of international law or refusal to recognise law of India
where it is applicable

◦ Opposed to natural justice

 Bias, partial, unfair, bad faith= coram non judice
 More procedural than substantive

◦ Obtained by fraud

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 Satya v. Teja Singh: husband got decree of divorce against wife from
American Court avvering he was domiciled in America, he played fraud as
he was not bona fide resident or domicile of America
 Either on party invalidating foreign judgment or fraud on court
pronouncing judgment

◦ Breach of Indian law

 Should not offend public policy of India

Section 14 – presumption as to foreign judgment

 presume upon the production of any document purporting to be a certified copy of a
foreign judgment that such judgment was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the record; but such presumption may be
displaced by proving want of jurisdiction
 Narasimha Rao v. Venkata Lakshmi: mere production of a copy of decree of foreign
court not sufficient, required to be certified by representative of Central Government of
nation
 Judgment will operate as conclusive as to any matter adjudicated upon

Enforcement of foreign judgment

• Instituting suit on such foreign judgment
o Not enforceable unless such decision is embodied in decree of court of that
country
o Within three years from date of judgment (Art. 101 Limitation Act)

• Instituting execution proceedings

◦ Section 44-A
 Certified copy of decree filed in District Court, decree may be executed in
India as if passed by District Court, all conditions of 13(a-f) must be
satisfied

13. Mesne profits

Meaning – S. 2 (12)
 Profits which person in wrongful possession of such property actually received or
might with ordinary diligence have received therefrom, together with interest on
such profits, but shall not include profits due to improvements made by the person
in wrongful possession

Object

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 When person has been deprived of his right to possess property by another, he is
entitled to restoration of possession of property and damages for wrongful
possession from that person
 Compensation paid to the real owner
 Compensate person who has been kept out of possession and deprived of
enjoyment of his property even though he was entitled to possession thereof

Who can it be claimed against:

 Wrongful possession of defendant is the essence for claim of mesne profits
 Person in wrongful possession and enjoying immovable property
 Against
o trespasser,
o person against whom decree for possession is passed,
o mortgagor in possession of mortgaged property after decree for foreclosure
has been passed against him, against mortgagee in possession of property
even after decree for redemption is passed, tenant holding over at will after
notice to quit has been served upon him

There is no invariable rule governing award of mesne profits- award and assessment in
every case can be laid down and court can moult it according to justice of case

 usually consider what defendant has gained or reasonably might have gained by
wrongful possession of property

Test
• ascertain mesne profits
o what defendant might have gained, reasonably and with ordinary prudence
from wrongful possession

Principles
 no profit by person in wrongful possession
 restoration of status before dispossession of decree-holder
 use to which decree-holder would have put property if he himself was in possession

Interest must be computed for mesne profits – Mahant Narayan Dasjee case
rate of interest is at discretion of court subject to limitation that the said rate shall not
exceed six percent per annum. Deductions can be made from gross profits of defendant as
mesne profits are net profits.

Order XX – judgment and decree

 decree for possession and mesne profits (Rule 12)

 attachment can happen while enquiry is occurring

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14. Framing of issues

After plaint and written statement, court will frame issues. Order 10 enjoins court to
examine parties with a view to ascertain matters in controversy in the suit. Order 14 deals
with issues. This is the first hearing. Order 15 enables court to pronounce judgment at the
first hearing in certain cases.

First hearing – the day on which the court goes into the pleadings of the parties in order to
understand their contentions. This is after plaint, written statement. The is the third stage,
where issues must be framed and settled and the day on which such issues are framed is the
first hearing of the suit.

Cases where no issues need to be framed, first hearing would be the day on which the trial
starts.

Siraj Ahmad v. Prem Nath – date of first hearing of suit under Code is understood to be date
on which court proposes to apply its mind to contentions in pleadings of parties to suit.

Issue – point in question, subject of debate, disagreement, discussion, argument or

litigation. If decided in favour of plaintiff, gives a right to relief and in favour of defendant
means right to defence.

Framing of issues – arise when a material proposition (which plaintiff must allege in order to
show a right to sue or defendant must allege in order to constitute his defence) of fact or
law is affirmed by one part and denied by the other (Order 14 Rule 1)

Kinds of issues (Rule 1 (4))

 Issues of fact
 Issues of law
 However, issues can be a mix of fact and law

Rule 2(1) – where issues both of law and fact arise in the same suit, notwithstanding that a
case may be disposed of on a preliminary issue, the court should pronounce judgment on all
issues

 If court is of opinion that case or any part thereof may be disposed of on an issue of
law only, it may try that issue first, if that issue relates to the jurisdiction of the court
or a bar to the suit created by any law for the time being in force. For this it can
postpone settlement of other issues until the issues of law have been decided (2(2))

Importance of issues
 Issues framed, not pleadings, which guide the parties in the matter leading evidence
 Court cannot refuse to decide point on which an issue has been framed and evidence
led by the parties even if the point involved is not mentioned in the pleadings

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 Court should not frame an issue which does not arise in pleadings
 Issues must be confined to material questions of fact or law (facta probanda)
 One issue should cover only one fact or law in dispute between parties
 If case goes in appeal, dealt with by the appellate court on issues settled for trial

• State of Gujarat v. Jaipalsingh Jaswantsingh Engineers & Contractors

 Issues are backbone to the suit, enlightens parties to proceedings, trial court and
appellate court as to what the controversy, evidence is and where lies the way to
truth and justice

Rule 3 – court can frame issues from allegations of parties or persons on their behalf or
pleaders, allegations made in pleadings or in answers, documents by either party

Rule 4 – court may examine witnesses or documents before framing of issues

Rule 5 – power to amend and strike out issues

Rule 6 – question of fact or law may by agreement be stated in form of issues

Rule 7 – if court is satisfied that agreement is executed in good faith, it may pronounce the
judgment on such issue according to terms of the agreement

Duty to frame proper issues rests primarily on the court, judge to apply mind and
understand the facts of the cause but pleaders must assist the court in framing the issues

Issues must be specific, not vague

Omission to frame issues – irregularity which may or may not be material. If it affects
disposal of suit on merits, must be remanded to trial court for fresh trial. Where parties
went to trial with full knowledge that particular point was at issue, they have not been
prejudiced and substantial justice has been done, absence of an issue is not fatal to the case
to vitiate proceedings.

Order 15 – disposal of suit

Court can pronounce judgment in following cases

 Rule 1 – where parties are not at issue on any question of law or fact
 Rule 2 - Where two or more defendants and any one of them admits claim of
plaintiff, court may pronounce judgment against such defendant. Suit will then
proceed against other defendants.
 Rule 3 – where after issues have been framed, court is satisfied no further argument
or evidence is required
 Rule 4 – where summons has been issued for final disposal of suit and either party
fails without sufficient cause to produce evidence on which he relies

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15. Costs
To award costs is at the discretion of the Court. Normally, costs shall follow the event.

Section 35
 General costs
 Object of awarding costs to litigant is to secure him expenses incurred by him in
litigation
 Neither enables the successful part to make profit out of it nor punishes opposite party
 General rule is that successful party must get costs and losing party should pay

Principles
 Costs are discretion of the court on sound legal principles and not by caprice, chance or
humour, consider facts and circumstances
 Follow the event, party is entitled to costs unless good grounds for depriving him of the
right
 Even a successful party may be deprived of costs if he is guilty of misconduct or there
are other reasons to do so
 When court orders costs not to follow the event, must record reasons for doing so

Section 35-A – Compensatory costs

 Exception to general rule of Section 35 that costs are only an indemnity, never more
than indemnity
 If court is satisfied that litigation was inspired by vexatious motive and altogether
groundless, it can take deterrent action
 Only to suits, not to appeals or revisions

• Conditions
o Claim/defence to be false or vexatious
o Objections must be taken by other party that such claim or defence was false
or vexatious to the knowledge of the party raising it
o Such claim must be disallowed or withdrawn or abandoned in whole or part
 Maximum to be awarded is 3000. But such person is not exempt from criminal liability.
Subsequent suit for damages or compensation for false, frivolous or vexatious claim of
defence, court will consider amount of compensation awarded to plaintiff under this
section
 Person is not exempted from other liability in respect of false or vexatious claim or
defence

Section 35-B – Costs imposed for undue delay by any party

 To put a check on the delaying tactics of litigating parties, empower court to impose
compensatory costs on parties who are responsible for causing delay at any stage of
litigation

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 Irrespective of outcome in litigation

 Payment of these costs are condition precedent for further prosecution of suit, if party
concerned is a plaintiff- Hakmi v. Pitamber
 Mandatory in nature
 Time can be extended if party cannot pay due to circumstances beyond his control
 Ashok Kumar Mittal v. Ram Kumar Gupta- SC – unsatisfactory system, does not act as
deterrent

Order 20-A – Miscellaneous costs

 Power of court to award costs in respect of certain expenses incurred in giving
notices, typing charges, inspection of records, obtaining copies and producing
witnesses

16. Affidavits
Not defined in the Code.

Understood to be a sworn statement in writing made especially under oath or an

affirmation before an authorised officer of magistrate M. Veerabhadra Rao v. Tek Chand

Declaration of facts, made in writing and sworn before a person having authority to
administer oath. Every affidavit to be drawn in first person and to contain only facts, no
inferences.

Order 19
Rule 1 – power to order any point to be proved by affidavit

Rule 2 – power to order attendance of deponent for cross-examination, unless they are
exempt from personal appearance or Court directs otherwise it must be done in Court

Rule 3 – affidavits to be confined to such facts as deponent is able of his own knowledge to
prove, except on interlocutory application, on which statements of his belief may be
admitted, provided grounds thereof are stated

Essentials
• Declaration by person
• Relate to facts
• In writing
• In first person
• Sworn or affirmed before Magistrate or any authorised officer

Evidentiary value
Affidavits are not evidence under Section 3 of Evidence Act, but can be used as evidence
only if for sufficient reasons the court invokes provisions of Order 19 of the Code.

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To controvert averments in affidavit, opposite party must file affidavit-in-reply or cross-

examine deponent. In absence of this, court is entitled to come to its own finding.

Client should be told to swear only to what he knows to be true. What he believes is
separate.

Unless properly verified, they are liable to be rejected by court.

False affidavit
=perjury punishable under IPC s. 191.

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