CPC

1. Joinder of claims and joinder of cause of action

Joinder of claims (Rules 4 and 5)

- 4 lays down that in a suit for recovery of immovable property, a plaintiff is not
entitled without the leave of court to join any claim except a. claims for mesne
profits/arrears of rent in respect of property claimed b. claims for damages for breach
of contract under which property is held c. claims in which the relief sought is based
on same CoA.
- 5 deals with suits by or against 3 classes of persons executors, administrators and
heirs. Provides that noclaim by or against these person in their rep capacity shall be
joined except: a. where personal claims arise with ref to estate they represent b. they
were entitles to or liable for those claims jointly with deceased whom he represents.
Primary object: rep should not mix his estates and testator’s assets.
Joinder of causes of action (Rules 3 and 6)

- 3 enables joinder of deveral causes of action in one suit in certain circumstances

subject to rules 4 and 5 of order 2 ad rules 1 and 3 of order 1
- 4 types of situations: one plaintif, one defendant and several causes of action- plaintiff
is at liberty to unite in same suit several causes of action except if court thinks this
joinder may embarrass or delay trial, then separate trial
Joinder of plaintiff and causes of actions: plaintiffs may unite causes of action in one
suit against same defendant if they are jointly interested r/w order 1 rule 1 i.e 2
conditions: causes of action must have arisen from same act/transaction and common
questions of law or fact must be involved.
Joinder of defendants and causes of actions: Plaintiff may unite same suit several
causes of action against defendant if defendants are jointly interested in cause of
action. r/w order 1 rule 3 i.e. 2 or more defendants can be joined if, 2 conditions:
relief claimed must be based on same act/transaction and if common questions of law
or fact is involved . if not, suit is bad for misjoinder of defendants and Coa and called
as multifariousness.
Joinder of plaintiffs, defendants and CoA: 2 or more d and 2 or more p and several
causes of action, plaintiff may unite coa against defendants in same suit only when all
laintiffs are jointly interested in the causes of action. If not, suit bad for misjoinder. If
defendancts are not jointly interested in coa, suit bad for multifariousness. Neither are
jointly interested in coa, suit bad for double misjoinder.
- Rule 7; objection as to misjoinder of coa: all objections must be taken at the earliest
opportunity otherwise they will be deemed to have been waived. No decree/order u/s
47 can be revered or varied on account of misjoinder not affecting merits of case or
juris.

2. Order 4: Inst of suits

- R1: suit to be commenced by plaint- every suit is instituted by presenting a plaint in
duplicate to court and it shall comply with rules in order 6 and 7
- R2: register of suits: particulars should entered in a book called register of civil suits.
- R3: The plaint shall not be deemed to be duly instituted unless it complies with the
above requirements- 1999 amendment
- Doesn’t say presentation must be during office hours or to any officer. So judge may
accept a plaint at his residence or club, after hours. In doing so, judge constitutes
himself an officer to reeive the plaint- #Sattayya v Sounndarthachi
- A clerk may accept plaint outside of office hours outdie court building. Also doesn’t
say that it has to be presented personally or by person authorised by him.
- The word “Suit” in section 26 must be taken to mean a civil proceeding instituted by a
plaint - # Hansraj Vs Official liquidator AIR 1933 PC 63.
- A proceeding that does not start with a plaint is not a suit.
- A proceeding instituted under the H. M. Act is a suit though instituted by a petition.
- A proceeding under the land acquisition act is not a suit.
3. Suits in special cases – Separate mail guysss
4. Meaning of Pleadings- Order VI
- Pleadings of plaintiff- plaintiff, of defendant- written statement
- The object and meaning of this section, the Court of Ch.D in Throp vs Holdwort,
“The whole object of this pleadings is to bring the parties to an issue, and the meaning
of this rules (relating to pleadings) was to prevent the issues being enlarged, which
would prevent either party from knowing when the cause came on for trial, what the
real point to be discussed and decided was.”
- Object: 1. narrow down the areas of conflict, 2. to make each side aware of the
questions to be argued to preclude one party from making the other by surprise and 3.
to prevent a miscarriage of justice.
- A party cannot have a suo-moto reservation of the right to file additional pleadings
later on nor without the leave of the court can file pleadings for a limited purpose.
- Pleading- concise form of facts, not evidence to be proved
- Facts- material facts ie facts upon which plaintiffs coa or defendants defence depends.
Failure- party cant lead evidence (unless court gives him leave to amend the pleadings
u/r 17) and will lead to dismissal - # Ramachandra v Jankiraman
- It should be divided into paras- each allegation in diff para
- Dates, sums, numbers- figures and words
- When the result of the pleading on both sides is that a material fact is affirmed on the
one side and denied on the other, the question thus raised between the parties are
called an issue of fact. When one party answers the others pleading by stating
objection in point of law, then issue of law.
5. Principles to be followed to make pleading
- R6: any condition precedent must be specifically pleaded
- R7: Departure- no pleading will raise any new ground or claim or allegation not incl
in previous pleading unless amendment
- R9: Effect of document to be stated – no need to set out whole words, just the effect
of the doc that is material
- R10: Malice, knowledge etc- if u want to allege, then allege as a fact, no need to set
out circumstances
- R11: Notice: to allege notice, it is sufficient to allege the same as a fact
Unless form or precise terms are material. Subject to r6
- R16: Striking out pleadings- court may at any stage strike out or amend any pleading
which is unnecessary, scandalous, frivolous OR prejudiced, embarrass or delay fair
trial OR abuse of process of court
- #S Malla Reddy v Future Builders Co.op :
Order 6 Rule 16- substituted by CPC Amendment act, 1976.
Plaintiff or def may asl the court for tricing out pleadings og opponent on the above
grounds. Based on the principle of ex dubito justitia. Court is empowered to do so.
- R17: Amendment of pleadings- either party can alter or amend pleadings at any stage.
Must be made to determine real questions in conflict. But no amendment after trial
has commenced unless court says that despite due diligence, party could not have
raised matter before commencement.
- #Heerala v Kayalan Mal
“once the written statement contains an admission in favour of the plaintiff, the
amendment of such admission of the defendants cannot be allowed to be withdrawn
and such withdrawal would amount to totally displacing the case of the plaintiff
which would cause him irretrievable prejudice”.
- # B.K Narayana Pilla &Parameshwaran Pillai
Defendant has right to take alternative please but subject to conditions like proposed
amen should not result in injustice to other side, admission made in favour of plaintiff
should not be withdrawn, inconsistence and contradictory allegation should not be
raised.
- Petitioners cannot ask court to strike out earlier written statenment or permit them to
substitute it with a fresh statmenet contrary to admissions made in the first one -
proposed amendment cannot be allowed which changes the nature of the suit
- #Dilip Kumar Singh v State of Bihar
Entire object is stall filing of appl for amending a pleading after commencement, to
avoid surprises anol.
- R18: Failure to amend after order- if party who got leave to amend does not w/ time
limit (if not specified 14 days), then cant amend unless court extends time
6. Plaint (Order VII)
- R1: Particualrs to be contained in plaint- (9) name of court; name, address of plaintiff;
same of def; if plaintiff is minor or of unsound mind, statement to that effect; facts
constituting CoA; facts showing court has juris; relief which plaintiff claims; if
plaintiff has set off or relinquished an amount, that amount; statement of value of
subject matter
- Insufficient descry does not make plaint defective
- CoA: plaint must aver all facts showing court has juris
- R2: in money suits where plaintiff seeks recovery, it should state precise amt. if
plaintiff sues for mesne profits or amount due to him on taking unsettled accounts or
for movables which are with def or for debts of which value he cant estimate then
approximate amount only
- Claim for mesne profits- approx.. not necessary to value future mesne profits
- If plaintiff makes specific claim of precise amt of future mesne profit then entitles to
that much only
- R3: Subject matter is immovable property- description of property sufficient to id it
(specify boundaries and numbers if possible)
- R4:when plaintiff sues as a rep- plaint should show him having existing interest in
subject matter and that he has taken steps necessary to enable him to inst this suit
- R7: Relief to be specifically stated either simply or in the alternative. No need to ask
for general or other relief. Same for def in written statement. It may be for damages,
declaration, specific performance, injunction or appointment of receiver etc.
- In india, practice is adding general relief – “such further or other relief as nature of
case may require”
- Alternate relief: just because alternative relief has been sought does not mean court
has discretion to grant main relief or alternate relief. Court will proceed to deal with
grant of main relief, if that is not possible, alternate relief.
- R9: Procedure on admitting plaint- where court order that summons be served on
defendants, it will direct plaintiff to present copies of plaint as many as def w/ 7 days
from date of order + fee for service of summons
- R10: Return of plaint
- Subject to r10a, plaint shall at any stage be returned to be presented in court in which
suit should have been isn’t. i.e court of appeal or revision may direct after setting
aside decree, return of plaint under this rule
- On returning, the judge shall endorese date of its presentation and return, name of
party, brief statement of reasons for returning it
- On order, plaintiff should file returned plaint as it is, not fresh suit. Fresh- not just
improper but illegal in view of r10A. the date of representation will be date of inst.
Plaintiff will get back court fee if paid
- Plaint may be returned for want of jurisdiction
- R10A: after fef appears, if court feels that plaint should be returned, first intimate this
to plaintiff. Subsequently, plaintiff may make application specifying the court in
which plaint should be presented, praying that court may fix a date for appearance of
parties in the said court and request notice of the date so fixed to be given to him and
defendant.
- On such application, before returning plaint, court shall fix date and give notice
notwithdtanding that order for return was made for want of jurisdiction.
- After notice is given, not necessary for that court to serve summons to def. the notice
will be deemed to be a summons for appearance
- The plaintiff shall not be entitled to appeal against order returning the plaint after
application is allowed by og court
- Specifying which court to present is not mandatory
- R10B: Power of appellate court to transfer suit to the proper court – on appeal against
order for return of plaint, and court confirms the order then court of appeal may, if
plaintiff makes application in that regard, direct paintiff to file the plaint in court
where suit should have been inst and fix date for appearance and it shall not be
necessary to serve summons to defendant
7. Rejection of Plaint (Rule 11)
- Plaint will be rejected if- doesn’t disclose cause of action, relief claimed is
undervalued and plaintiff fails to correct within time given by court, wrelief claimed
is properly valied but plaint is written ipon paper insufficiently stamped and plaintiff
fails to supply req paper, suit appears from statement in plaint to be barred by any law
, not filed in duplicate, plaintiff fails to comply with provision of r9.
- Provided that time fixed by court for correction of valuation shall not be extended
unless court is satisfied that the plaintiff was prevented by any cause of an exceptional
nature. Same with stamp paper- if refusal to extend time would cause grave injustice
to plaintiff
- If court says plaintiff or def havnt paid court fee, then opp should be given to pay, If
not dismissal or appeal would be illegal
- # Samar Singh v Kedar Nath
- Court can reject plaint suo moto even before filing of written statement
- #Bhagwati Prashad v RajiV Gandhi , #Dhartipakar Madan Lal Agarwal v Rajiv
Gandhi
- If election petition doesn’t disclose cos, it can be dismissed u.o 7 r 11
- It does not place any restriction or limitation on exercise of courts power
- Doesn’t say power u this rule should be exercised at a particular stage only, open to
court to exercise at any stage
- Usually prelim objection to maintainability on ground of absence of coa is raised by
resp as early as possible, if a party raises objections after filing written statement,
prelim obj cannot be ignored. The right to raise obj or courts power to consider this
obj is not affected if it is done after filing written statement. Court has to see only
plaint to determine if any coa. Along w admitted docs and facts coming out in
statement
- Court can decide said points without recording evidence
- Partial disclosure of coa- cannot be rejected
- There is difference between not disclosing cos and there being no coa. Court has duty
to decide question before issuing summons and will reject plaint w/o summons. No
coa- only after considering entire mater it can be concluded
8. Agents and Pleaders
- Appearance of Parties - Rule 1
- The primary object of Rule 1 is to facilitate the proceedings before the court, to afford
an oppurtunity to the party and to enable him to perform certain acts through a
recognised agent or pleader which otherwise he would have to perform.
- Generally a party can appear, act or apply in the following ways- By a party in person,
By his/her agent, By a pleader on his/her behalf
- Court has the power to direct a party to appear in person but it does not do so unless
good reason exists. However, once such a direction is issued by the court and the
party fails to come in person, the court may dismiss the suit or proceed ex parte.
- Recognised agents - Rule 2
- A Recognised agent is one having express or implied authority to act on behalf of
another person, who is allowed to speak or conduct proceedings in a court of law.
- Code recognises persons holding power of attorney, carrying trade or business for
parties, specially appointed by govt to prosecute/defend on behalf og foreign rulers,
authorised to act for govt as RECOGNISED AGENTS.
- Pleader – Rule 4
- A Pleader is ‘any person entitled to appear and plead for another in court and includes
an advocate, a vakil and an attorney of the High Court.’
- Appointment of the Pleader – Rule 4 prescribes the manner of the appointment of the
pleader and the limit up to which the appointment is in force. A pleader can be
appointed by a document in writing known as the Vakalatnama or Vakalatpatra,
signed by the party/his agent/ some other authorised person. Such document of
appointment shall be filed in court and shall be in force until the determination of all
the proceedings in the suit, or until determined by the client or the pleader, or until the
client or pleader dies, or until the duration for which he is engaged is over.
- Authority of the Pleader – The pleader has authority to act on behalf of his clients. He
has the implied authority to do all that is expedient, proper and necessary for the
conduct of the suits and settlement of the disputes. However, he must act in a
bonafide manner and for the benefit of his client. He should act as a prudent man and
consult with his client when the time and opportunity is available.
- Then theres more like duties and responsibilities of a pleader which looks like useless
hai. Meaning Rule 4 just deals with appointment.
- Pleader or a lawyer cannot go on a strike and if one resorts to a strike he/she is
answerable for the consequences. Only in the rarest of rare cases involving dignity,
integrity and independence of Bar and Bench, the court may not take it seriously.
- Appearance by proxy – A pleader of a party can be represented by another counsel.
This is a recognised practice.
- If a client decides to change his advocate, he can do so upon paying professional fees.
However the advocate does not have lien on the clients papers and cannot hold them
on account of ‘non-payment of fees’.
- Service of Process: Rule 3,5,6
- A process served on the recognized agent or a pleader of a party or left at the office or
residence of the pleader will be considered as valid and proper.
9. Summons
- issued to the defendant to appear and answer the claim and to file the written
statement of his defence, if any, within thirty day from the date of service of summons
on that defendant
- no such summons shall be issued when a defendant has appeared at the presentation
of plaint and admitted the plaintiff’s claim;
- where the defendant fails to file the written statement within the said period of thirty
day, he shall be allowed to file the same on such other days as may be specified by the
Court, for reasons to be recorded in writing, but which shall not be later than ninety
days from the date of service of summons.
- Amendments of 1999 and 2002 provide that summons must be accompanied by a
copy of the plaint
- The legislature while prescribing the format of summons in the Code has provided
one column where the Court is required to mention a specific “day, date, year and
time” for the defendant's appearance in the Court to enable him to answer the
suit filed against him/her. format: appendix B, process no.1
- # Auto Cars v Trimurti Cargo Movers – mentioning of day, date, year – statutory
requirement prescribed in code, not an empty formality
- Defendant to whom summons has been issues may appeal in person, by pleader
instructed and able to answer material questions, pleader accompanied by someone
who can answer questions
- Summons will be signed by judge or such officer and sealed with seal of court
- R4: No party will be ordered to appear in person unless he lives within local limits of
the courts ordinary og jurisdiction or a place less than 50 or if there is a steamer or
other public conveyance for 5/6th of the distance between place he resides and court,
less than 200 miles distance from court house

10. Modes of service of summons (Rule 10, 10A)

- Personal or direct service (R10-16,18)- ordinary mode of service.summons served to
def in person or to authorised agent. If def absent from residence, then to family
residing with him. Servant is not family. If suit is about business or work, may be
served to manager or agent carrying on such work (if person is not residing w/
territorial juris of the court). For immovable property suit, service may be made on
any agent in charge of property. If 2 or more def, summons to each of them.
- Service by court: R9- Summons to def w/ juris of court shall be served through court
officer or approved courier service. Or registered post, speed post, courier etc.
- Service by plaintiff- R9A- service by plaintiff in addition to service by court
- # Storey David Ian Andrew v Planet Pte Ltd- assistant registrar granted an application
for substituted serice ia email, skype, facebook etc. first decision in Singapore
permitting use of instant messaging applications, social media and internet message
boards to effect substituted service
- You can run but you can’t hide
- # Tata Sons Ltd v John Doe- plaintiffs permitted to serve summons by text message
and whatsapp as well as email and to file affidavit of service
- # Rohitashwa Kumar Agarwal v Bar Council of Up- in order to ensure the presence of
chairman and sec of bar council of Allahabad ordered notice through whatsapp
- # Indian Bank Assoc v UOI- Summons must be properly addressed and sent by post
as well as y email address got from the complainant
- #Kross Television India v Vikhyat Chitra PORDUCTION- BHC not formally
approved email and other modes as acceptable simply because there are inherent
limitation to proving service. However, Where altenative is used and service is shown
to be effected and is acknowledged then it cannot be suggested that def had no notice
- #DHC in a case said Whatsapp blue tick is a porrf of notice being served
- #Premkumar Thangadurai v Dtate- petitioners shiyld swear to affidavits informing
their email addresses and that communication of summons to such email would be
sufficient service on them and they wouldn’t dispute the same
11. Effect of refusal of summons (rules 17 and 19, 20)
- R17: Where the defendant or his refused to sign the acknowledgement, or where the
serving officer, after using all due and reasonable diligence, cannot find the
defendant, who is absent from his residence at the time when service is sought to be
effected within a reasonable time, and there is no agent empowered to accept service
of the summons on his behalf, the serving officer shall affix a copy of the summons
on the outer door or some other conspicuous part of the house in which the defendant
ordinarily resides or carries on business or personally works for gain, and shall then
return the original to the court from which it was issued, with a report endorsed
thereon or annexed thereto stating that he has so affixed the copy, the circumstances
under which he did so, and the name and address of the person (if any) by whom the
house was identified and in whose presence the copy was affixed.
- R19: Rule 19 provides that where a summons is returned under r. 17, the court shall,
if the return under that rule has not been verified by the affidavit of the serving
officer, and may, if it has been so verified, examine the serving officer on oath, or
cause him to be so examined by another Court, touching his proceedings, and may
make such further enquiry in the matter as it thinks fit; and shall either declare that the
summons has been duly served or order such service as it thinks fit.
- R20- service of summons is effected by order of the court only after court Is satisfied
that def avoids service or summons or it cannot be served in ordinary way.

12. Service of Summons in special cases

- R21: Def resides within jurisdiction of another court- summons sent by court by
officer or by port or courier service approved by HC, fax service or mail or any
electronic mode approved by HC
- R22: within presidency towns of summons issued by court outside- court outside
Bombay, Calcutta, madras is served within limits
- Service of foreign summons may be effected by sending them to the courts in the
territories in which the provisions of this code appl and served as if the were
summonses issued by such courts
- Where def resides out of india- summons addressed to def at place he is residing and
sent by post, courier etc
- Where def resides in a foreign country,summons effected through political agent or
court established there w authority
- Where def is a public officer not belonging to indian military, naval or air force or is a
servant of railway co or local authority, summons through head of department where
he employed
- Where def is a soldier, sailor or airman, summons to commanding officer
- Where def is in prison, summons to officer in charge of prison
- Where def is a corporation, summon on secretary or any director or principal officer
or send by post to registered office
- Where def are partners in any firm, summons on one or more of them at principal
place of business in india. If dissolved , then to each
- Instead of summons court may send a letter of requesr which contain all particulars
req in summons. Acc to office held or position