Exam, Questions and Answers Exam, Questions and Answers
Exam, Questions and Answers Exam, Questions and Answers
Exam, Questions and Answers Exam, Questions and Answers
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 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.
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
o There could be more than one preliminary and one final decree
o Agreed by in Shankar case
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
• 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
• 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
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
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)
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)
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
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.
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
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
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.
• 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
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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Test
Whether decision in previously instituted suit would operate as res judicata in subsequent
suit. If so, must be stayed.
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
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
• Concise form
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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 8
Bare denial of contract by opposite party= denial of factum of contract and not
legality, validity or enforceability of such contract
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
Rule 15
Rule 16
Rule 17
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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
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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.
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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
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
• 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.
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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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
◦ 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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• 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
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
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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
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
◦ Section 21
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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
Rule 3 – court can order defendant or plaintiff to appear in person if Court sees reason
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 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
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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
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
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
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Object
Principle – court of competent court has adjudicated upon claim, legal obligation
arises to satisfy the claim
o Justice equity and good conscience
◦ 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
◦ 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
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
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.
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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.
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)
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
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 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
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.
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
• 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
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16. Affidavits
Not defined in the Code.
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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Client should be told to swear only to what he knows to be true. What he believes is
separate.
False affidavit
=perjury punishable under IPC s. 191.
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