CPC Notes

Long answer questions:

Q1 & Q13) What is meant by jurisdiction of the court? Explain the various kind
of Jurisdiction? “Place of suing”? Transfer of civil suits?
A) INTRODUCTION
Jurisdiction defines the limits under which a court has the right to try/not try a matter.
So, jurisdiction defines the authority of the court to hear or not to hear a matter. A
court deciding a matter out of its jurisdiction will lead to irregular exercise of
jurisdiction. The matters decided during exercise of irregular jurisdiction can be
termed voidable/ void depending upon the nature and circumstances of that matter.
Civil courts in India have a pre-determined jurisdiction according to which they are
authorised to exercise their power to determine the civil matters and pronounce
judgements. If the court exercises its power outside its defined jurisdiction, then it is
said to be irregular exercise of jurisdiction/ lack of jurisdiction. Civil courts in India
can provide penalties in the form of monetary fines or by inducing permanent/
temporary injunction.
Jurisdiction of civil court
Section 9 of CPC
Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in
India. It declares that the court shall have jurisdiction to try all lawsuits of civil nature
accepting suits of which their cognizance is either expressly or impliedly barred.
Conditions
A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:
1. The suit must be of a civil nature.
2. The cognizance of such a suit should not have been expressly or impliedly
barred.

Kinds of jurisdiction
Territorial or local jurisdiction
Under this territorial or local jurisdiction, the geographical limits of a court’s authority
are clearly delineated and specified. It cannot exercise authority beyond that
geographical/ territorial limit. For example, if a certain crime is committed in Madhya
Pradesh, only the courts of law within the borders of Madhya Pradesh can hear and
decide the case.
Pecuniary jurisdiction
Pecuniary means ‘related to capital.’ It approaches the question of whether the court
is competent to try the case of the financial value. The code allows analysing the
case unless the suit’s value exceeds the financial limit of the court. Section 15 of the
Code of Civil Procedure commands the organisation of the suit in the court of the low
grade. It refers to pecuniary jurisdiction of Civil court. It is a course of the method and
it does not affect the jurisdiction of the court. The main objective of establishing
pecuniary jurisdiction is to prevent the court of a higher level from getting burdened
and to provide assistance to the parties. However, the court shall interfere if it finds
the judgment to be wrong. For example, ’A ’wants to accuse ‘B’ due to a violation of
the contract to obtain Rs 5000 in Bombay. The Bombay High Court has original
jurisdiction and small causes court with the jurisdiction up to Rs 50000. So, a suit to
obtain Rs 5000 should ideally be dealt with small causes court.
Jurisdiction as to the subject matter
The subject matter can be defined as the authority vested in a court to understand
and try cases concerning a special type of subject matter. In other words, it means
that some courts are banned from hearing cases of a certain nature. No question of
choices can be decided by the court which do not have subject matter
jurisdiction. Section 21 of the Code of Civil Procedure is related to the stage
challenging the jurisdiction. For Example, “Ranveer”, a resident of Sonipat bought a
food item of ‘AA’ brand that was plagued with pests. He should prosecute ‘ZZ’
company in Sonipat District forum rather than District Civil Court of Sonipat.
Original and appellate jurisdiction
Appellate jurisdiction refers to the court’s authority to review or rehearsal the cases
that have been already decided in the lower courts. In the Indian circumstances, both
the High Court and Supreme Court have the appellate jurisdiction to take the
subjects that are bought in the form of appeals.
Original Jurisdiction refers to the court’s authority to take notice of cases that could
be decided in these courts in the first instance itself. Unlike appellate jurisdiction
wherein courts review the previously decided matter, here the cases are heard
afresh.
Exclusive and concurrent jurisdiction
In Civil Procedure, exclusive jurisdiction means where a single court has the
authority to decide a case to the rejection of all the courts. This jurisdiction is decided
on the basis of the subject matter dealt with by a specific court. For example, the U.S
District courts have particular jurisdiction on insolvency topics.
Concurrent jurisdiction exists where two or more courts from different systems
simultaneously have jurisdiction over a particular case. In this situation, parties will
try to have their civil or criminal case heard in the court that they perceive will be
most favourable to them.
General and special jurisdiction
General jurisdiction means that general courts do not limit themselves to hearing
only one type of cases. This type of jurisdiction means that a court has the power to
hear all types of cases. So the court that has general jurisdiction can hear criminal,
civil, family court case and much more.
Specific jurisdiction is the ability of the court to hear a lawsuit in a state other than the
defendant’s home state if that defendant has minimum contacts within the state
where the suit will be tried.
Legal and equitable jurisdiction
Equitable jurisdiction belongs to the authorities of the courts to take specific actions
and pass some orders in order to deliver an equitable and reasonable outcome.
These judgments are usually outside the purview of law, in the sense that support
provided by the courts may not be necessarily confirmed by the statue.
Expounding and expanding jurisdiction
Expounding jurisdiction means to describe, clarify and explain jurisdiction. Expanding
jurisdiction means to develop, expand or prolong jurisdiction. It is the duty of the
court to clarify its jurisdiction and it is not proper for the court to extend its jurisdiction.
Q13) Principles relating to place of suing & transfer of civil suits?
The expression ‘place of suing’ signifies the venue for the trial. The same has
nothing to do with the competency of the court. Section 15 of the Code of Civil
Procedure, 1908 requires the plaintiff to file a suit in the court of the lowest grade
competent to try it.
Pecuniary jurisdiction
Section 15 of the Code of Civil Procedure, 1908 provides that a suit must be
instituted in the court of the lowest grade which is competent to try it. This rule being
of a procedural nature does not affect the jurisdiction of the courtsThe two-fold
objective of Section 15 has been provided hereunder:

1. Reduce burdens of the higher courts;

2. Afford convenience to the parties and witnesses who may be called for
examination in such suits.
Territorial jurisdiction
In order to discuss territorial jurisdiction of a court, the four types of suits that are to
be considered are:
1. Suits in respect of the immovable property (Sections 16-18);
2. Suits in respect of the movable property (Section 19);
3. Suits in respect of compensation for wrongs (Section 19);
4. Other suits (Section 20).
Section 17 of the Code of Civil Procedure, 1908 provides the provision for suits of
immovable property located within the jurisdiction of different courts. The provision
provides that suits can be filed in different courts within the local limits of whose
jurisdiction any portion of the property lies, provided that suit is within pecuniary
jurisdiction of such courts.
Subject-matter jurisdiction
Subject-matter jurisdiction denotes the court’s authority or capacity to decide on
problems based on their nature. Different courts have been given the authority to
decide on various forms of lawsuits, taking into account the multiplicity of situations.
The five kinds of suits where Section 16 of the Code of Civil Procedure, 1908 can be
invoked are as follows:
1. Partition of immovable property
2. Recovery of immovable property
3. Torts to immovable property
4. Determination of any right or interest in the property
5. Sale, Foreclosure, Redemption with respect to mortgage or charge upon the
immovable property.
Transfer of civil suits:
Section 24(1) High Court or District Court can transfer and withdraw any case on the
application of any of the parties at any stage of the suit whether on pending or
appeal proceedings. But the transfer of cases in any court the court in which case is
transferred should be competent to deal with that case. The High Court also has the
power to withdraw the case from any court and transfer it to any other court. Either
within the same appellate court or under a different appellate court the case will be
within the scope of the same high court or it can be within the jurisdiction of other
High courts.
Objective Of Transfer Of Civil Suits
The main intention behind the transfer of cases is delivering justice or for deciding
matters which address public sentiments. There are various provisions regarding
appeal but this will create pressure on the mechanism of judiciary and will result in
delayed justice. But the statute has created such a system so that the problems do
not occur i.e the hierarchy of the court. The transfer of cases is a provision that helps
to maintain the faith of the judiciary amongst the general public.
Who may apply?
In Section 22 of CPC, the plaintiff has the right to file a case in any competent court
and when the defendant gets to know the purpose of application he may apply for
the transfer of the case. The court may also consider the objection if any, made by
the plaintiff in relation to such transfer. And further, after the clearance of the
objection, the court will transfer the case in a court that is competent to deal with that
case.
Section 22 and 23 are related to each other. Section 22 defines the power of the
defendant to apply for the cases and section 23 lays down the conditions where the
application of transfer can be made.
Conditions
1. The suit or other proceeding must have been pending in a court competent to
try it.
2. The transfer court must be subordinate to the court making transfer order.
3. The transferee court should be competent to try or dispose of the suit, where
competency does not only include pecuniary but also territorial competency.
Cases where transfer is allowed
Transfer of cases from one court to another is allowed when:-
1. Reasonable threat in mind of party that he/she will not get justice where the
case is pending in court.
2. Balance of convenience.
3. When two people filed a suit against each other in different court on the same
cause of action.
4. Where there are suits pending in different court but similar question of facts
and law arises.
5. Where the judge is biased and making discrimination.
Cases where transfer is not allowed
1.Where there is mere balance of convenience to the applicant.
2.Where judges give the opinion in advance about the judgment of case.
3.Where there is mere facts of an erroneous order.
4.Where claim is that the opposite party is an influential man in the locality.
5.Where a claim that the court is situated at a long distance from the residence of the
applicant.

Q2)Procedure stated under Section 89 of CPC in the process of “settlement of

disputes outside the court”?
A) History of Section 89
Arbitration has long been viewed as a less formal path for dispute resolution, yielding
decisions that can favor one party but remain contestable. Since 1987, Lok Adalats
(people’s courts) have emerged as a quick way to resolve minor disputes. Initially,
India lacked a structured mediation framework. Section 89 was introduced to align
with international practices and implemented through the Code of Civil Procedure
(Amendment) Act, 1999, effective in 2002.
Section 89 CPC- Settlement of Dispute Outside of Court
The provision under Section 89 CPC is an attempt to bring about resolution of
disputes between parties, minimize costs and reduce the burden of the courts. It is
provided for with the sole objective of blending judicial and non-judicial dispute
resolution mechanism and bringing alternate dispute mechanism to the centre of the
Indian Judicial System.
The long-drawn process of litigation, the costs incurred by both parties for the same
have and limited number of adjudicators have made Alternate Dispute Resolution an
important aspect of the Judicial system to ensure swifter and speedier justice.
Section 89 of the Code of Civil procedure was introduced with a purpose of
amicable, peaceful and mutual settlement between parties without intervention of the
court. In countries all of the world, especially the developed few, most of the cases
(over 90 per cent) are settled out of court. The case/ dispute between parties shall go
to trial only when there is a failure to reach a resolution.
Section 89 of the Code of Civil Procedure States that:
(1) Where it appears to the court that there exist elements of a settlement which may
be acceptable to the parties, the court shall formulate the terms of settlement and
give them to the parties for their observations and after receiving the observation of
the parties, the court may reformulate the terms of a possible settlement and refer
the same for
(a) arbitration;
(b) conciliation
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute had been referred-
(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act,
1996 shall apply as if the proceedings for arbitration or conciliation were referred for
settlement under the provisions of that Act. (b) to Lok Adalat, the court shall refer the
same to the Lok Adalat in accordance with the provisions of sub-section
(1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions
of that Act shall apply in respect of the dispute so referred to the Lok Adalat;
(c) for judicial settlement, the court shall refer the same to a suitable institution
or person and such institution or person shall be deemed to be a Lok Adalat and all
the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute
were referred to a Lok Adalat under the provisions of that Act;
(d) for mediation, the court shall affect a compromise between the parties and
shall follow such procedure as may be prescribed.] Section 89 came into being in its
current form on account of the enforcement of the CPC (Amendment) Act, 1999 with
effect from 1/7/2002.
At the commencement of the Code, a provision was provided for Alternate Dispute
Resolution. However, the same was repealed by the enactment of the Arbitration Act
(Act 10 of 1940) under Section 49 and Sch. 10. The old provision had reference only
to arbitration and its procedure under the Second Schedule of the Code.
It was believed after the enactment of the Arbitration Act, 1940, the law had been
consolidated and there was no need of Sec 89. However, the Section was revived
with new alternatives and not only restricted to arbitration.
Improving Section 89’s effectiveness requires clarifying definitions and processes,
distinguishing between mediation, arbitration, and conciliation. Enhanced ADR
training for lawyers and judges and public awareness initiatives can promote ADR’s
cost-effectiveness, speed, and confidentiality. Continuous evaluation of Section 89’s
implementation ensures it serves its intended purpose, reducing case backlogs and
making justice timely and accessible.

Q3. Various modes of execution of decree?

A)INTRODUCTION
Meaning The word “execution” stands derived from the Latin word “ex sequi” which
means to follow out, follow to the end or perform. “Execution” signifies in law the
obtaining of actual possession of anything acquired by judgment of law. Execution
signifies the last performance of an act.
The term “execution” is not defined in the CPC. The term “execution” means
implementing or enforcing or giving effect to an order or a judgment passed by the
court of justice. In simple words, “execution” means the process of enforcing or
giving effect to the decree or judgment of the court, by compelling the judgment-
debtor to carry out the mandate of the decree or order and enable the decree-holder
to recover the thing granted to him by judgment.

Nature and Scope

Once a decree or judgment is passed by the court, it is the obligation of the person
against whom the judgment is passed (judgment-debtor), to give effect to the decree
so as to enable the decree-holder to enjoy the benefits of the judgment. Execution is
the last stage of litigation. When the decree-holder gets the thing granted to him by
judgment, decree or order, the execution is complete.
what are the various modes of execution of decree under cpc?
A decree may be carried out in a number of ways, but the Court must adhere to the
relevant guidelines outlined in Order 21. Order XXI Rule 10 states that in order for
the decree-holder to have it executed, he must submit an application to the court.
The various modes of execution of decree cpc are as follows:
Through Delivery of Property:
 Movable Property: In the event that the property is movable, the decree is
carried out by taking possession of it and giving it to the decree-holder or
another individual he appoints. The confiscated moveable property must be
handed to the buyer if it is going to be sold.
 Immovable Property: Immovable property may be delivered to the individual
to whom it has been awarded or to that person’s representative when the
decree calls for the delivery of such property.
Through Attachment and Sale of Property:
 On the decree-holder’s request, a decree may also be carried out by
attachment and sale, the only sale in which no property is attached.
  The code establishes the process for achieving attachment and acknowledges
the decree-holder’s authority to seize the judgment debtor’s property in an
execution case.

Through Arrest and Detention:

 One way to carry out an order is by an arrest. Arrest and custody are covered
under Section 55 of CPC.
 If the decree calls for payment of money, the judgment debtor may be placed in
civil imprisonment to carry out the terms of the ruling.
 According to Rule 38 of CPC, in order to arrest the judgment debtor, the officer
designated for execution must obtain a warrant.
By Appointment of a Receiver:
 The several clauses pertaining to the receiver’s appointment are contained in
CPC Order XL.
 The Court has appointed the receiver, who is a neutral, unbiased third-party
person.
 The Court is also able to decide how much the receiver will be paid for the
services they rendered. The receiver is required to:
 Oversee and safeguard the property
 Assume responsibility for the collection of rent and earnings from the property.
 Oversee the application and distribution of rent and profits.
 Be cautious when executing documents.
 The receiver may be granted further authority by the court at its discretion.
Through Partition:
 The decree in the property division litigation is covered under Order XX, Rule
18 of the Code of Civil Procedure.
 When a court issues a judgment for the division of any kind of property,
whether it be immovable or mobile, and if the process proves onerous, the
court may issue an interim decree that precisely defines each property’s
various rights.
 The Collector or any other gazetted person who reports to the Collector and
who must be selected by the Collector themselves may make the partition
 decree when it comes to the estate assessed for the purpose of paying taxes
to the Government.
Through Cross decrees & Cross-claims:
 The CPC’s Order XXI, Rule 18, lays forth the guidelines for execution in cases
involving cross-decrees. When petitions are filed with a court through separate
suits, the court may execute both concurrently in order to pay the two amounts
of money that were transferred between the same parties or individuals.
 Cross-claim scenarios are governed by the rules for execution outlined in
Order XXI Rule 19. When two distinct parties who owe each other money file
an application with the court to execute a decree, it’s known as a cross-claim.
Through Payment of Money:
The numerous ways to pay the money required by the decree are outlined in Order
XXI Rule 1 of CPC. In line with this regulation:
 The money may be deposited into the court that has the authority to carry out
the decree;
 It may be sent there by money order or bank deposit;
 It may also be paid to the decree holder outside of the court using a previously
agreed-upon method;
 The court may also specify other methods in the decree.
Therefore, the method used by the courts to execute a decree in the decree holder’s
favour is called execution. An adequate remedy must be given to the decree-holder
in the event that the judgment debtor fails to comply with the decree, as the mere
passing of a decree is insufficient. Due to the severity of these modes, which include
detention and judgment, the debtor is left with little choice except to comply with the
decree’s demands and pay the stipulated amount.

Q4) Salient features of Limitation Act, 1963?

A) Limitation Act 1963 Overview

The Limitation Act was enforced on 1st January 1964 and extends to the whole of
India. It includes a total of 5 parts and 32 sections. To provide a period of limitation,
the act contains 137 Articles. The act describes the time frame within which legal
actions must be initiated in civil cases. Limitation Act 1963 ensures that the
concerned parties must not resort to dilatory tactics and avail the remedy promptly.
Limitation Act 1963 is based on “It Bars Remedy, But Does Not Extinguish Right”. It
means that it sets a time limit for legal actions. The maxim “vigilantibus non
dormientibus jura subveniunt” underpins the Limitation Act 1963, meaning that law
assists those who are vigilant to their rights and not those who sleep over their rights.
What is the Objective & Aim of Limitation Act 1963?
The Limitation Act 1963, aims to ensure the timely and efficient administration of
justice by imposing strict time limits within which legal claims must be made. Its
primary objective is to prevent the revival of stale claims and to encourage litigants to
pursue their grievances promptly. By setting clear timeframes for initiating suits,
appeals, and applications, the Act seeks to promote legal certainty and stability,
thereby safeguarding the interests of defendants and ensuring that evidence remains
fresh and reliable.

Salient Features of Scheme of the Limitation Act 1963

The Limitation Act 1963, incorporates several features that are designed to manage
and streamline legal proceedings by setting time limits for various types of claims.
Some of the features are as follows.
Specific Time Frames for Different Actions
The Act prescribes distinct limitation periods for various types of legal actions, such
as civil suits, appeals, and applications. These time frames are tailored to the nature
of each claim to ensure that appropriate deadlines are set for different types of
disputes.
For example, suits for recovery for the recovery of money or for breach of contract
generally have a limitation period of 3 years, while suits for recovery of immovable
property typically have a period of 12 years.
Commencement of Limitation Period
The limitation period usually starts from the date when the cause of action arises.
This is the moment when the plaintiff can first bring the suit, based on the facts giving
rise to the claim. For instance, in contract disputes, the limitation period starts from
the date of breach.
Acknowledgment and Part Payment
The Act allows for the limitation period to be reset if the debtor acknowledges the
debt or makes a part payment. This extension starts from the date of
acknowledgment or payment.
Provisions for Fraud and Mistake
The Act allows for an extension of the limitation period if the cause of the action is
based on fraud or a mistake. In such cases, the limitation period begins from the
date when the fraud or mistake is discovered, rather than when it occurred. This
ensures that parties cannot evade liability through concealment or deceit.
Barred Claims
The Act bars claims that are not filed within the prescribed limitation periods. It helps
avoid the revival of state claims and contributes to legal certainty and the efficient
administration of justice by ensuring that disputes are resolved within a reasonable
time.
Rules of Computation
Detailed rules for computing the limitation period are provided, including how much
to account for specific periods such as those spent in higher courts or in seeking
legal remedies. These rules help in accurately determining the deadline for filing
claims and appeals.
Flexibility for Different Jurisdictions
The Act applies uniformly across various jurisdictions in India but also provides for
the adaptation of limitation periods based on specific laws or contexts, offering
flexibility while maintaining overall consistency.
Q12 & Q28) What is the Law on Condonation of Delay? Grounds for extension
of limitation period? When does condonation come to an end?
 The Limitation Act, 1963, enacted on 5th October 1963, and effective from 1st
January 1964, aims to prescribe the time periods within which existing rights
can be enforced in courts of law.
 The Act is based on the Latin maxim "vigilantibus, non dormientibus jura
subveniunt," which means that the law assists the vigilant, not those who sleep
over their rights.
 However, the Act recognizes that there may be circumstances beyond a
litigant's control that prevent them from filing a suit or appeal within the
prescribed time limit.
 This is where the concept of "condonation of delay" comes into play.
What is Condonation of Delay?
 About:
o Condonation of delay is a discretionary remedy exercised by courts
wherein, upon an application made by a party who wishes to have an
 appeal or application admitted after the prescribed period, the court may
condone (overlook) the delay if the party provides a “sufficient cause” that
hindered them from filing the appeal or application on time.
o If the court is satisfied with the sufficient cause, it may condone the delay
and admit the appeal or application as if no delay had occurred, allowing
the matter to proceed on merits rather than being dismissed solely on
technical grounds.
 Section 5 of the Limitation Act, 1963:
o Section 5 of the Limitation Act, 1963 enunciates the principle of
condonation of delay. It states:
o “Any appeal or any application, other than an application under any of the
provisions of Order XXI of the Code of Civil Procedure, 1908, may be
admitted after the prescribed period if the appellant or the applicant
satisfies the court that he had sufficient cause for not preferring the
appeal or making the application within such period”.
 Interpreting "Sufficient Cause":
o The term "sufficient cause" has not been defined in the Limitation Act,
1963 allowing courts broad discretion in its interpretation.
 Sufficient Cause to Grant Condonation of Delay:
The following can be the circumstances for filing an application of Delay
Condonation-
Mislead by rulings;
Mistake of counsel;
Mistake of law;
Mistake of court;
Delay in getting certified copy;
Illness;
Inability;
The party is Government servant;
Poverty;
The party is illiterate;
The delay is caused due to pendency of writ petition.
The party is a pardanashin woman
When does condonation period come to an end?
There is no proper definition of the term 'sufficient reasons', and it has been left to
the court's discretion. They can consider the facts and situation of each case before
making a decision. According to the Limitation Act, the time limit for specific cases is
as follows:
 Any suit relating to accounts, contracts, and movable properties has a time limit
of 3 years.
 Any immovable property-related suit has a time span of 12 years, and cases
related to mortgaged properties have a time restriction of 30 years.
 A tort suit will have a time span of 1 year. However, the compensation cases
come with a time restriction of 3 years. Additionally, offences involving the
Criminal Procedure Code and Code of Civil Procedure have a time limit of 30-
90 days.

Q16) “Acknowledgement in writing gives rise to a fresh period of limitation”.

Purpose of the Limitation Act and Acknowledgement Provisions
The Limitation Act’s strict timelines encourage diligent legal action but can potentially
disadvantage plaintiffs who postpone lawsuits based on defendants’ promises to pay
or acknowledge the debt. Section 18 of the Act addresses this issue by allowing the
plaintiff to rely on the debtor’s acknowledgement, which can restart the limitation
period, giving the plaintiff an extended opportunity to file a suit.
This flexibility discourages defendants from making empty promises or assurances
solely to avoid paying debts, ensuring ethical adherence to financial or legal
obligations.
What is an Acknowledgement?
Acknowledgement, in the legal context, is essentially a debtor’s formal recognition of
existing liability. According to Black’s Law Dictionary, acknowledgement signifies “a
recognition of something as being factual,” which in this case is the factual existence
of a debt or liability. For Section 18, acknowledgement must be in written form and
signed by the debtor to reset the limitation period.
The acknowledgement doesn’t need to contain an express promise to pay. The
acknowledgement’s intent is to confirm the existence of the debt, with the signature
indicating that the debtor willingly admits to the liability.
Section 18: Effect Of Acknowledgment In Writing
Bare Act
(1) Where, before the expiration of the prescribed period for a suit or application in
respect of any property or right, an acknowledgment of liability in respect of such
property or right has been made in writing signed by the party against whom such
property or right is claimed, or by any person through whom he derives his title or
liability, a fresh period of limitation shall be computed from the time when the
acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may
be given of the time when it was signed; but subject to the provisions of the Indian
Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.

Key Provisions of Section 18 of the Limitation Act, 1963

Section 18 states that:
1. Written Acknowledgement: Acknowledgement of liability must be documented
and signed.
2. Timeline: This acknowledgement must occur within the original limitation
period.
3. Effect on Limitation Period: Upon acknowledgement, a new limitation period
commences from the date of acknowledgement.
4. Who Can Acknowledge: The debtor or an authorised agent must sign the
acknowledgement.
These requirements are crucial, as they ensure that acknowledgement is deliberate
and documented, preventing frivolous or unintentional admissions from affecting
limitation periods.
Essentials of a Valid Acknowledgement Under Section 18
To successfully invoke Section 18, the following elements must be met:
1. Existence of Liability: The acknowledgement must recognise a current liability
owed to another party.
2. Written and Signed Format: Oral acknowledgement is insufficient. The law
requires it to be in writing and signed by the debtor or their authorised agent.
3. Within the Limitation Period: Acknowledgement must occur before the
expiration of the limitation period. If acknowledged afterwards, it won’t revive
the claim or debt.
4. Absence of Conditionality: Acknowledgement should be unqualified or
absolute. While it doesn’t need to contain a promise to pay, the debtor must not
set conditions for fulfilling the obligation.
Q27) Period of limitation computed under Limitation Act?
A) Computation of period of limitation
Exclusion of time
Section 12 of the Act explains how to exclude certain time periods when calculating
the limitation period for legal proceedings. It includes the following provisions:
 As per Section 12(1) the day from which the period of limitation begins is not
counted when calculating the time limit for filing a suit, appeal, or application.
 As per Section 12(2) the day on which the judgement is pronounced is
excluded when calculating the period of limitation for an appeal, application for
leave to appeal, revision, or review of a judgement. The time required to obtain
a copy of the decree, sentence, or order being appealed, revised, or reviewed
is excluded from the limitation period.
 As per Section 12(3) if appealing from or seeking to revise or review a decree
or order, the time needed to obtain a copy of the judgement is also excluded.
 As per Section 12(4) the time required to obtain a copy of an award is excluded
when calculating the period of limitation for an application to set aside the
award.
Any time taken by the court to prepare the decree or order before a copy is
requested is not excluded from the limitation period. Only the time after the copy is
requested is excluded.
Exclusion of time when leave to sue or appeal as a pauper is applied for
As per Section 13, when someone tries to sue or appeal but cannot pay the court
fees and asks for permission to do so as a pauper, the time spent on that application
is not counted against them in the limitation period. If the application is rejected, the
court can still treat the suit or appeal as valid if the person pays the necessary court
fees later.
Exclusion of time when proceeding in a court without jurisdiction
Section 14 states that if a party is proceeding in good faith in a court that lacks
jurisdiction, the time spent in this court should be excluded when calculating the
limitation period for another civil proceeding.
The subsection of Section 14 includes:
 Under Section 14(1), when calculating the time limit for filing a lawsuit, one can
exclude the period during which one was diligently pursuing another civil case
against the same defendant. This rule applies if the other case was related to
 the same issue and was being prosecuted in good faith. However, the court
was unable to handle it due to a lack of jurisdiction or a similar issue.
 Under Section 14(2), when calculating the time limit for filing an application,
one can exclude the period during which one was diligently pursuing another
civil case against the same party for the same relief. This applies if the other
case was prosecuted in good faith, but the court was unable to handle it due to
a lack of jurisdiction or a similar issue.
 As per Section 14(3), even if the Civil Procedure Code (CPC), 1908,
specifically Rule 2 of Order XXXIII, says otherwise, the provisions of Section
14(1) will apply to a new lawsuit filed with court permission under Rule 1 of that
Order. This is relevant when the first lawsuit failed due to a lack of jurisdiction
or a similar issue. For this section:
o When excluding the time of the previous civil proceeding, count both the
day it started and the day it ended.
o A plaintiff or applicant fighting an appeal is considered to be prosecuting
a proceeding.
o Misjoinder of parties or causes of action is considered similar to a
jurisdiction defect

Q20) Legal disability on computation of limitation?

A) Introduction
The Law of Limitation provides an aggrieved party the time limit for different suits
within which it can approach the court for the relief and justice. The suit is struck
down by the law of limitation if it is brought after the exploration of the time-limit. Its
main objective is to protect the long and established user and to indirectly punish
individuals who have been slumbering for a long time over their rights. Any person
must file a suit or make a request within the period specified by the schedule of the
Limitation Act.

However, situations can exist where, due to his physical or mental condition, the
person is not able to file a suit or make an application. In such cases, the law may
not be the same and additional rights and benefits must be accorded to individuals
with physical disabilities. The concept of legal disability is provided under Section 6
of The Limitation Act which also extends to other sections such Section 7, 8 and 9 of
the Limitation Act.
Kinds Of Legal Disabilities
Section 6(1) of the Limitation Act, 1963[2] provides three kinds of legal
disabilities which are as follows:
1. Minor
2. Insane
3. Idiot
The first of these conditions for legal disabilities are ‘minor’ that has to do with the
age of an individual. According to Section 3, Indian Majority Act, 1875[3] an individual
is said to be a major when he or she is eighteen years old. The calculation of the age
has to be done after taking into consideration following two points which are provided
under Section 3(2) of the Indian Majority act:[4]
1. The day has to be included as a whole day on which an individual is born.
2. He or she is therefore said to have been a major when the 18th anniversary of
that day begins.

The Majority Act, 1875 can be referred to as ‘secular’ because it can apply to an
individual practising any religion. The majority age can be considered something else
other than eighteen years if a personal law states something else. A child in the
womb is also considered as a minor. However, it is also taken into consideration by
the Majority Act that where the courts have taken into account supervision of minor’s
life and property and therefore appointed a guardian for the welfare of the minor
before a person is eighteen years old then the age of minority is extended to 21 for
the individual in question.

The second condition for legal disability is ‘insanity’. In It was held by the court that
only legal insanity is recognised by the courts and not the medical insanity. There is a
considerable difference between the two. There is no specific test to prove legal
insanity but even if medical is proven medically or in lower court still it shall be
proved in the higher court. To see whether a particular person is insane or not, we
have to take into consideration the behaviour, antecedent, and attendant and
subsequent to the event.

Idiocy is when the person is not able to count the days of the week, unable to tell the
days of the week, has non-sane memory since birth and is unable to count twenty.

A lunatic suffers from bouts of such attacks in between what is termed as periods of
sanity i.e. there are times when he can control his senses but there are occasions
where he/she functions in an erratic manner, example-epilepsy. Madness is seen as
permanent. Lunacy and madness are termed acquired insanity while idiocy is
considered as natural insanity that is while a person can turn lunatic at any time in
his lifetime, a person is an idiot since his/her birth.
Rules Relating To Legal Disability In Limitation Act
Section 6
The rule relating to minor is that the time should not run against a minor. Provision
for the fresh starting point of limitation is not provided under this section. This
ensures that an individual with an impairment can get an extension of time before the
expiry of the period written in the Schedule calculated from the end of disability
subject to the ceiling provided under Section 8.[8]

Insane, minors and idiots are exempted under Section 6 to file a suit or an
application for the execution of the order in the time prescribed in the law. They are
allowed to file a suit or an application when their disability has ceased and counting
of the period starts from the day their disability came to an end.
1. Idiots, minors and insane are under the purview of disability.
2. This section applies when a suit brought by a disabled person and not against
the disabled person.
3. The disability must occur at the time when the period of limitation is to be taken
into consideration.
4. Suit or an application for the execution of the order should in question at the
time of the proceeding.
5. The limitation period should be mentioned in the third column of the schedule
to the Limitation Act for the proceedings.

Q5) The manner in which a suit against a minor can be instituted?

Definition of Minor and Persons of Unsound Mind
According to Section 3 of the Indian Majority Act, 1875, a minor is a person who has
not attained the age of 18 years. However, if a guardian has been appointed by the
Court for the minor’s person or property or if the minor’s property is under the
supervision of a Court of Wards, the age of majority is extended to 21 years. A
person of unsound mind refers to an individual who cannot protect their interests due
to mental infirmity and their condition may be adjudicated by the Court either before
or during the suit.
Purpose of Order XXXII: Suits by or Against Minors and Persons of Unsound
Mind
Order XXXII of the CPC is specifically designed to protect the interests of minors and
persons of unsound mind by ensuring they are properly represented in legal
proceedings. Due to their lack of capacity and judgement, these individuals cannot
legally bind themselves except in cases beneficial to them. Therefore, the
appointment of a guardian or next friend is crucial to safeguard their legal rights and
interests.
Provisions for Suits by or Against Minors and Persons of Unsound Mind under
Order XXXII
Rule 1: Minor to Sue by Next Friend
Every suit by a minor must be instituted in the minor’s name by a person called the
next friend. The next friend represents the minor in all legal proceedings, ensuring
that the minor’s interests are adequately protected.
Rule 2: Where Suit is Instituted without Next Friend
If a suit is filed on behalf of a minor without a next friend, the defendant can apply to
have the plaint taken off the file. The person who presented the plaint may be
ordered to pay the costs incurred by the defendant. Notice of such an application
must be given to the person who filed the suit and the Court, after hearing their
objections, may make an appropriate order.
Rule 2A: Security to be Furnished by Next Friend when Ordered
The Court can require the next friend of a minor to provide security for the payment
of all costs incurred or likely to be incurred by the defendant. This provision,
introduced by the Amendment Act of 1976, aims to prevent frivolous litigation by
ensuring that the next friend has a vested interest in the suit and is financially
accountable.
Rule 3: Guardian for the Suit to be Appointed by Court for Minor Defendants
When a minor is a defendant, the Court must appoint a guardian for the suit, known
as a guardian ad litem. The guardian ad litem is responsible for defending the minor
throughout the legal proceedings unless terminated by retirement, removal or death.
The application for appointing a guardian must be supported by an affidavit verifying
that the proposed guardian has no adverse interest in the matters of the suit and is fit
for the role.
Rule 3A: Decree Against Minor not to be Set Aside Unless Prejudice has been
Caused to His Interest
A decree against a minor will not be set aside merely because the next friend or
guardian had an adverse interest. However, if this adverse interest prejudices the
minor, it is a valid ground for setting aside the decree. This rule ensures that the
minor’s interests are protected from any potential conflicts of interest.
Rule 4: Who May Act as Next Friend or be Appointed Guardian for the Suit
Any adult of sound mind, who does not have an adverse interest, may act as the
next friend or guardian for the suit. If a minor already has a guardian appointed by a
competent authority, no other person can act as the next friend or guardian unless
the Court deems it necessary for the minor’s welfare. This rule ensures that the
minor is represented by someone with their best interests at heart.
Rule 5: Representation of Minor by Next Friend or Guardian for the Suit
All applications and orders concerning a minor in a suit must be made through the
minor’s next friend or guardian. Any orders made without such representation can be
set aside if it is shown that the pleader knew or should have known about the minor’s
status. This provision safeguards the minor’s legal rights and ensures proper
representation in Court.
Rule 6: Receipt by Next Friend or Guardian for the Suit of Property under
Decree for Minor
A next friend or guardian cannot receive any property on behalf of a minor without
the Court’s permission. The Court may require security to ensure the proper
management of the property and protect it from waste. This rule prevents the misuse
of the minor’s property and ensures its proper application for the minor’s benefit.
Rule 7: Agreement or Compromise by Next Friend or Guardian for the Suit
A next friend or guardian cannot enter into any agreement or compromise on behalf
of the minor without the Court’s permission. Any such agreement without the Court’s
leave is voidable. This rule protects the minor from potential exploitation and ensures
that any compromise is in their best interest.
Rule 8: Retirement of Next Friend
A next friend cannot retire without first finding a suitable replacement and providing
security for costs already incurred. This ensures continuity in the minor’s
representation and prevents any disruption in the legal proceedings.
Rule 9: Removal of Next Friend
The Court can remove a next friend if their interest is adverse to the minor, they are
connected to the defendant, fail to perform their duties or for any other sufficient
cause. This provision ensures that the next friend acts in the minor’s best interest
and can be replaced if they fail to do so.
Rule 10: Stay of Proceedings on Removal, etc., of Next Friend
If a next friend retires, is removed or dies, the proceedings are stayed until a new
next friend is appointed. This prevents any legal actions from proceeding without
proper representation of the minor.
Rule 11: Retirement, Removal or Death of Guardian for the Suit
The Court can permit the retirement, removal or replacement of a guardian during
the suit. If a guardian retires, dies or is removed, a new guardian must be appointed
to continue the proceedings. This ensures that the minor is continuously represented
throughout the legal process.
Rule 12: Course to be Followed by Minor Plaintiff or Applicant on Attaining
Majority
When a minor plaintiff attains majority, they must decide whether to continue with the
suit, dismiss it or apply to proceed in their own name. The title of the suit is then
corrected to reflect their new status. This rule provides clarity and ensures that the
legal proceedings are appropriately updated.
Rule 13: Where Minor Co-plaintiff Attaining Majority Desires to Repudiate Suit
A minor co-plaintiff who attains majority can apply to have their name struck out as a
co-plaintiff if they wish to repudiate the suit. The Court will determine if they are a
necessary party and make an appropriate order regarding their dismissal from the
suit. This provision allows the newly major individual to make an informed decision
about their involvement in the legal proceedings.
Rule 14: Unreasonable or Improper Suit
A minor who attains majority can apply to have a suit dismissed if it was
unreasonable or improper. The Court must be satisfied of the suit’s
unreasonableness or impropriety to grant the application. This rule ensures that the
interests of the now-major individual are protected from any prior decisions made
without their informed consent.
Rule 15: Application to Persons of Unsound Mind
Rules 1 to 14 (except rule 2A) apply to persons adjudged to be of unsound mind or
found incapable of protecting their interests due to mental infirmity. This rule extends
the protections provided to minors to persons of unsound mind, ensuring their
interests are safeguarded in legal proceedings.
Rule 16: Savings
The provisions of this Order do not apply to the Ruler of a foreign State suing or
being sued in the name of his State or by the direction of the Central Government in
the name of an agent. This rule ensures that diplomatic and sovereign immunities
are respected. Additionally, it does not affect any local laws related to suits by or
against minors or persons of unsound mind.
Case Laws on Suits by or Against Minors and Persons of Unsound Mind
Several landmark cases illustrate the application of Order XXXII and the principles
governing suits involving minors and persons of unsound mind.
Ramchandra Arya v. Mansingh
In Ramchandra Arya v. Mansingh (AIR 1968 SC 954), Ramdas filed a civil
suit against Ramlal, a person of unsound mind, to recover a sum of money. The suit,
initially heard by the Court of Judge, Small Causes, was transferred to the Court of
Munisif, which passed an ex parte decree against Ramlal, declaring him sufficiently
served. Ramlal’s house was sold in execution of this decree and a sale certificate
was issued to Prabhudayal. Despite the sale, Ramlal continued living in the house
until his death, after which the property escheated to the Maharaja of Jaipur due to
the absence of heirs.

Q6) Different stages of a suit?

A)
1) Presentation of the plaint
2) Service of summons on the defendant
3) Appearance of parties
4) Ex-party Decree
5) Filing of written statement by the defendant
6)Production of documents by parties
7) Examination of parties
8) Framing of issues by the court
9) Summoning and Attendance of Witnesses
10) Hearing of suits and examination of witnesses
11) Argument
12) Judgment
13) Preparation of Decree
14) Execution of Decree

1) Presentation of the plaint Order 7 of CPC 1908:

Presentation of the plaint in the court is the first step or starting point of all the
pleading in a case in India. The whole judicial system under civil law is set in motion
by the filling of the plaint.

2) Service of summons on defendant (Order 5):

The second stage of the civil suit is the service of summons on the defendant.
Summons is an instrument used by the court to call the person whose name is
mentioned in the plaint as a defendant. It is a way to inform the person against whom
the civil proceedings have been commenced and he is required to present his
defence in the court. It is a process directed to a proper officer of the court to notify
the person named, that he is required to appear, on a day named and answer the
claim in such action.
3) Appearance of parties:
When the summons duly served to the defendant, the next stage of the civil suit
commenced which is the appearance of the parties before the court on the day fixed.
If the defendant does not appear on the day fixed in the summons the court may
proceed ex parte. In the case of the plaintiff, if he is absent court may dismiss the
suit. Where neither party appear, the court may dismiss the suit.
4) Ex-party Decree (Order 9):
As mentioned above if the defendant, on a fixed day in the summons does not
appear the court may proceed ex-parte. Where the plaintiff appears, and the
defendant does not appear when a suit is called up for hearing and summons is duly
served the court may make an order that suits will be heard ex-parte under Order 9
of the CPC 1908.
5)Filing of written statement by the defendant (Order 8):
First of all, we should know what a written statement is. Actually, it is a pleading of
the defendant in the answer to the plaint filed by the plaintiff against him. It is a reply
statement of the defendant in a suit specifically denying the allegations made against
him by the plaintiff in his plaint. The provision regarding the written statement has
been provided under Order 8 of the Code of Civil Procedure, 1908.
6) Production of documents by parties (plaintiff and defendant):
After filling the written statement by the defendant the next stage of the suit is the
production of documents by the parties. At this stage, both parties have to file
documents in court which are in their possession or power. In such a situation, where
parties rely on such a document that is not in their possession then parties have to
apply to the court for issue of summons to authority or persons in whose possession
these documents are. In such a case, parties have to deposit in the court the cost of
such production of the documents.
7) Examination of parties:
After the filling of the written statement, production of the documents and
appearance of the parties, the important stage commences which is the Examination
of the parties. At the first hearing of the suit, the court ascertains from each party or
his pleader whether he admits or denies such allegations of fact as made in the
plaint and written statement. Such admissions and denies shall be recorded.
8) Framing of issues by the Court (Order 14):
The next of the civil suit is the framing of issues. It is the duty of the court to frame
issues. Order 14 of CPC provides the provision regarding the framing issues.
9) Summoning and Attendance of Witnesses (Order 16):
After the framing of issues parties shall present in the court a list of witnesses whom
they propose to call either to give evidence or to produce documents. Such a list
shall be present in the court on the day appointed and not later than 15 days after
the date on which issues are settled.
10) Hearing of suits and examination of witnesses:
After the summoning of the witnesses, the next stage of the civil suit is the hearing of
suits, and the examination of witnesses commences. The first right to begin is of the
plaintiff unless the defendant admits the facts alleged by the plaintiff and contends
that either in point of law or on some additional facts alleged by the defendant the
plaintiff is not entitled to any part of the relief, in such a case the defendant has the
right to begin.
The plaintiff has to submit the evidence that was earlier marked if any evidence was
not marked earlier then it will not be considered by the court. And the defendant’s
advocate will cross-examine the plaintiff and also the witnesses who are from the
plaintiff’s side.
And the defendant also presents his side of the story supported by his witnesses and
evidence from his side and the plaintiff advocate also cross-examined the defendant.
11) Argument:
As soon as the stage of the hearing of suits and examination of witnesses is over
then the suit is kept for the next stage i.e. argument. Once the evidence has been
submitted and cross-examination is conducted by both parties, then both sides are
allowed to present a summary of the case and evidence to the judge in the final
session.
12) Judgment:
The next stage of the civil suit is judgment, which means the statement given by the
judge on the ground of which a decree is passed.
13) Preparation of Decree:
After the delivery of the judgment, the next stage is the preparation of the Decree,
and it is to be prepared by the concerned clerk.
14) Execution of Decree:
In this stage, the decree-holder compels the judgment-debtor to out the mandate of
the decree or decree or order as the case may be. It is the process by which a
decree-holder recovers the fruits of the judgment. The execution is complete when
the judgment creditor or decree-holder gets money or other thing awarded to him by
judgment, decree or order.

Q7) On what grounds remedy of revision is available?

A) Meaning

Revision means to go through something carefully, thoroughly and diligently. Cases

can be revised by the High Court as it possesses revisional jurisdiction as defined
under Section 115 of the Code of Civil Procedure. The High Court has the right to
revise cases decided by subordinate courts to ensure delivery of justice and
maintenance of fairness.
Nature, Scope and Object
The primary objective of a revisional authority of the High Court empowered
by Section 115 is to ensure that no subordinate court acts arbitrarily, illegally,
capriciously, irregularly or exceeds its jurisdiction; and allows the High Court to
guarantee the delivery of justice while ensuring that the proceedings are conducted
in accordance with the rule of law and furtherance of fairness. It must be noted that
the judges of subordinate courts have the absolute authority to decide on cases.
They do not commit any “jurisdictional error” even when they wrongfully or extra-
judicially decide a case. The High Court has the power to revise these jurisdictional
errors committed by subordinate courts.
Conditions for Revision
The conditions when the High Court can exercise its revisional jurisdiction is laid
down in Section 115 of the Code of Civil Procedure. All these conditions must be met
for the High Court to exercise its revisional jurisdiction. These are as follows:
Precedents
The case must have already been decided and judgement declared by the
subordinate court. A case cannot be revised if it has not been decided in the first
place and no judgement is given. The expression “case decided” was not defined in
the CPC, 1908. This gave rise to a number of conflicting decisions on the question of
whether the said expression included an interlocutory order also
An explanation was added to Section 115 by the Amendment Act of 1976, on the
recommendation of the Joint Committee of Parliament. This makes it clear that the
expression, “case decided” includes any order made, or any order deciding an issue,
in the course of a suit or any other proceeding. Thus, “any case which has been
decided” means each decision which terminates a part of the controversy involving
the question of jurisdiction.
No appeal lies
There must not be any appeal lying against the case decided by the subordinate
court. The High Court cannot revise a case if there is a pre-existing appeal against
the case as the revision interferes with the appeal and vice-versa. The revision can
only be filed once the appeal is dismissed. The word “appeal” includes both the first
appeal and second appeal. Therefore, the revision can only lie when the appeal is
dismissed or does not lie.
Jurisdictional error
The revisional jurisdiction can be applied by the High Court when the subordinate
court appears to have:
1. Acted in excess of jurisdiction vested in it by law, or
2. Failed to exercise the jurisdiction vested in it by law, or
3. Displayed material irregularity and exercised its power illegally or in breach of
the provisions of law.
Subordinate court
The High Court cannot exercise revisional jurisdiction unless a case is decided by a
court which is subordinate to the High Court. Only a court of civil judicature is
considered and this does not include any person acting in an administrative capacity.
As a general rule, where it is provided that a matter should be decided by a
particular court, the presiding officer of such court will act as a court. But where it is
provided that a particular judge should decide a matter, the provisions of the statute
will have to be considered for determining whether the judicial officer acts as
a court or as a persona designata. The revision by the High Court is mainly done to
rectify the jurisdictional or procedural errors caused by subordinate courts in the
course of proceedings in any case when an application is filed by an aggrieved party.

Alternative remedy
The power of revisional jurisdiction and its application lies under the discretion of the
High Court and cannot be claimed as a right by any aggrieved party. Several factors
are considered before the authority of revisional jurisdiction is exercised. If there is
the presence of an efficacious or alternate remedy available to the aggrieved party,
the court may not exercise its revisional jurisdiction and instead suggest the alternate
remedy and relief to the aggrieved party. This is done to prevent the misuse of
revisional jurisdiction and make it applicable only in cases where necessary.

Q8 & Q24) Plaint? Essential elements? Rejection of plaint and return of plaint
difference?
A) Plaint
Plaint is a legal document consisting of the pleadings of the plaintiff. It is a document
that initiates civil proceedings in a civil court. The term ‘plaint’ is often used
synonymously with the term ‘suit’, and it is crucial to note that both terms have
significant differences. The term ‘plaint’ is the document that initiates the proceedings
in court, and the term ‘suit’ refers to all the proceedings that take place from the day
of submission of plaint till the judgement is rendered by the court.
It is through the plaint that the plaintiff narrates or describes the cause of action and
related information, which is considered essential from the viewpoint of the suit.
A plaint consists of the following elements:
1. Cause of action refers to the legal right of the plaintiff and the violation of that
legal right by the defendant.
2. Important facts of the case that describe the cause of action.
 3. Pleadings with respect to the jurisdiction of the court, the value of the suit,
whether the suit is barred by limitation, and whether a suit on the same cause
of action is pending before any other court.
4. The prayer seeking relief from the court.
Order VII of the CPC deals with Plaint. Order 7 Rule 1 provides for the particulars of
the plaint. Rule 9 of the CPC deals with admission of plaint. Furthermore, Rules 10 to
10B are important for understanding the return of plaint, and Rule 11 is important for
understanding the rejection of plaint. Furthermore, there are certain documents that
are to be attached to the plaint and Order VII Rule 14 provides for the same.
How is a suit instituted
Section 26 of the CPC deals with the institution of the suit. It clearly stipulates that
“every suit shall be instituted by the presentation of a plaint or in such other manner
as may be prescribed.” Herein, the law clearly provides that a civil suit can be
instituted by the presentation of a plaint. The term “in such other manner” means that
a suit can also be instituted through an application or a petition before the
appropriate court.
Elements of a plaint
Many times, it is difficult to comprehend the specific components of a plaint.
Therefore, it is important to refer to Order VII Rule 1 of the CPC, which provides for
the necessary elements or the various particulars of the plaint. These are as follows:
1. The name of the court wherein the suit is to be instituted,
2. The name, description, and residence of the plaintiff,
3. The name, description, and residence of the defendant (as much as the plaintiff
can ascertain),
4. A statement in case the plaintiff or defendant is a minor or a person of unsound
mind,
5. The facts explaining the cause of action and the explanation of when it arose,
6. The facts that highlight the jurisdiction of the court where the suit is to be
instituted,
7. The reliefs that the plaintiff is seeking,
8. When the plaintiff is ready to set off a portion of his claim, the plaint should
contain the amount that has been allowed.
9. A statement with respect to the valuation of the subject matter of the suit in
order to determine the appropriate jurisdiction of the court and the required
 court fee. Order VII Rule 2 provides that in a suit for the recovery of money, the
plaint must specify the exact amount that is being claimed by the plaintiff.
Furthermore, it is crucial to note that, as per Order VI Rule 15, the plaint shall consist
of a verification and an affidavit.
Documents to be attached with a plaint
Order VII Rule 14 of the CPC provides for the documents that are to be attached to
the plaint. It clearly provides that all the documents that are relied upon by the
plaintiff in his plaint are to be filed in original, along with the duplicates. Furthermore,
the plaintiff is required to submit photocopies of all the documents relied upon by him
to the defendant. It is important to note that this rule is not applicable to documents
that are produced for cross- examining the plaintiff’s witness or documents that are
used to refresh the memory of the witness as provided under Order VII Rule 14(4) of
the CPC.

Q24) Introduction

A complaint is a written statement filed by the plaintiff before a court that has
jurisdiction. It is filed to claim relief by the plaintiff. Therefore, it is very essential that
the complaint be filed, disclosing all the causes of the actions and filed under the
accurate jurisdiction of the court. Otherwise, the appellant may face rejection or
return of the complaint, as the case may be. In this article, we will discuss the return
of plaint. Under Order 7 Rule 10 of the Civil Procedure (Amendment) Act, 1976, the
return of a plaintiff on the basis of incorrect jurisdiction is contained.

Return of plaint
 The return of the complaint is covered under Rule 10A of Order VII. Rule 10A
and 10B were added to Order VII by the Civil Procedure (Amendment) Act,
1976.
 There are circumstances where the plaint is filed wrongly; it may lack some
legal formalities or the court under whom it is appealed may not have
jurisdiction to proceed over that case.
 So in these situations,the court has the power to return the complaint and may
advise filing it under the correct jurisdiction.
Grounds for returning a plaint
The court can return the complaint only on one ground, i.e., its jurisdiction.
Procedure for returning a plaint
Order 7 Rule 10
It describes the procedure for returning a complaint. The judge or the court can
return the complaint only on the grounds mentioned under Sections 15 to 20 of the
Civil Procedure Code. While doing so, the judge has to mention the following in his
order.
1. The date on which the petition is presented and date on which it is returned
should be mentioned on it.
2. The names of the parties presenting the complaint should be mentioned.
3. A brief statement is given to the plaintiff, mentioning the reasons for returning
it.
4. The plaintiff can also be returned by the court on the request of the plaintiff if
the court is satisfied.

Rejection of plaint
Order VII Rule 11 of the CPC deals with the rejection of the plaint and the grounds
on which a plaint may be rejected. The object behind the provision is to ensure that
there is no unnecessary litigation.
The order provides for six grounds on which a plaint can be rejected. However, the
caveat here is that the list is not exhaustive in nature, which implies that there are
other grounds on which the court can reject the plaint of a plaintiff. The grounds
stipulated under the rule are as follows:
1. Rule 11(a): The plaintiff has not disclosed the cause of action in the plaint. The
fundamental requirement of any civil suit is the violation of a legal right, which
establishes the cause of action of the plaintiff. If the same is missing in the
plaint, such a plaint stands rejected. In the case of Snp Shipping Service Pvt.
Ltd. vs. World Tanker Carrier Corporation (1999), the High Court of Bombay
rejected the plaint of the plaintiff due to the non-disclosure of the cause of
action in the plaint.
2. Rule 11(b): The suit is undervalued. It is important to ensure that the value of
the suit is determined correctly for the purposes of attaching the court fees. If
the plaintiff undervalues the suit, there is a reduction in court fees, which
eventually leads to the rejection of the plaint.
3. Rule 11(c): The plaint is not sufficiently stamped. Court stamps play an
important role in determining the value of the suit, and thus, an improperly
stamped plaint can be rejected. Thus, it is crucial to ensure that, with the
correct valuation of the suit, the plaint is stamped properly for the court to
 receive the appropriate value for processing the plaint and carrying on with the
proceedings of the suit.
4. Rule 11(d): The plaint is barred by law. In simpler terms, a plaint can be
rejected if the statements contained in it are prohibited by law. An example of
the same is the bar of limitation.
5. Rule 11(e): The plaint is not filed in duplicate. As per Order IV Rule 1, a
duplicate of the plaint is to be submitted when it is filed at the filing centre. If a
duplicate of the plaint is not filed, it shall be rejected.
6. Rule 11(f): The plaintiff does not comply with Order VII Rule 9. If the plaintiff
does not comply with Rule 9, which provides for the procedure of admitting
plaint. It provides that the processing fee and copies of the plaint are to be filed
within seven days of the day the summons were issued to the defendant. If the
same is not done, the plaint shall be dismissed.
Rule 12 of Order VII provides that the court is to issue an order stating the grounds
on which the plaint is rejected. It is crucial to note that the powers conferred under
Order VII Rule 11 of the CPC can be exercised at any stage before the trial is
concluded. Furthermore, an order under this provision can be challenged by way of
an appeal under Section 96 of the CPC.

Q9) Res Judicata? When can it be applied?

A) Res Judicata meaning
Res means “subject matter” and judicata means “adjudged” or decided and together
it means “a matter adjudged”.
In simpler words, the thing has been judged by the court, the issue before a court
has already been decided by another court and between the same parties. Hence,
the court will dismiss the case as it has been decided by another court. Res judicata
applies to both civil and criminal legal systems. No suit which has been directly or
indirectly tried in a former suit can be tried again.
 Section 11 of Code of Civil Procedure, 1908 (CPC) embodies the doctrine of
Res Judicata or the rule of conclusiveness of a judgment.
 It enacts that once a matter is finally decided by a competent court, no party
can be permitted to reopen it in a subsequent litigation.
 It serves to prevent multiplicity of proceedings and to protect parties from being
vexed twice for the same cause.

Conditions to impose Res Judicata

The following requirements must be met in order to establish Res Judicata as a
legitimate defense in a future suit:

Same Matter in Issue: The matter directly and substantially in issue in the
succeeding suit must be the same as the matter directly and substantially in issue in
the previous suit, either actually or constructively.

The prior litigation must have been between the same parties or parties claiming
under them. This implies that the parties in the second litigation must be the same
as the parties in the preceding suit or claim filed under the same title.

Litigating Under the Same Title: The parties in the first complaint must have been
litigating under the same title as they are in the second. In other words, in both
circumstances, they should have the same legal interest in the subject matter.

Competent Court: The court that resolved the previous suit must be competent to
hear the future suit or suit involving the same subject. This assures that the previous
suit’s ruling was made by a court with competent jurisdiction.

Final Decision: The court in the prior litigation must have heard and eventually
determined the topic immediately and significantly in question in the following suit.
Res Judicata must be used after a final judgement on the merits of the case.

It is vital to highlight that the concerned party must raise the Res Judicata defense in
the later complaint. If a party fails to raise the Res Judicata issue, or if the trial court fails
to outline such an issue and the appeal court raises it on its own, such invocation of the
concept may be deemed improper. Res Judicata can only be considered by the court if
it is raised by the parties involved in the case.

Non-Applicability of Res Judicata

If the case is not finally heard and decided, Res Judicata does not apply:
 If the “Former suit was disposed of ex-parte”.
 If the “Former suit was dismissed for failure to produce evidence”.
 If the “ Former suit was dismissed for Pre-Mature”.
 If the “Former suit was for want of cause of action”.
 If the “Former suit was dismissed for Non-Joinder or Misjoinder”.

Exceptions to Res Judicata

 Writ of Habeas Corpus: The principle of Res Judicata does not apply to the
writ of Habeas Corpus.
  Fraud or Collusion: If the original judgment was obtained through fraud or
collusion, it may not be binding in subsequent litigation.
 Substantial changes in evidence: If some new evidence emerges that could
not have been discovered with due diligence during the prior suit, then
the Court may allow the issue to be re-litigated.
 Incompetent Jurisdiction of Court: If the court that rendered the original
judgment lacked proper jurisdiction, the decision may not have a binding
effect.

Q10) Properties not liable for attachment and sale in an execution of decree
under procedural law?
A) All about Section 60 of CPC, 1908: Property that can be attached and property
that cannot be attached are both covered under Section 60 of CPC, 1908. All
movable property belonging to the judgement debtor, excluding assets that are
expressly excluded, including lands, houses or other buildings, goods, money, bank
notes, checks, bills of exchange, hundis, promissory notes, government securities,
bonds or other securities for money, debts, and shares in a corporation, may be
attached and sold in fulfilment of a judgement against him. The decree described in
this Section is not a mortgage decree; it is merely a money decree. It is crucial that
the property not only belongs to the judgement debtor but also that he has the ability
to dispose of it in his favour.
List of properties that are to be liable for attachment and sale in the execution
of a decree are:
1. Lands,
2. Houses or other buildings,
3. Goods,
4. Money,
5. Bank-notes,
6. Cheques,
7. Bills of exchange,
8. Hundis,
9. Promissory notes,
10. Government securities,
11. Bonds or other securities for money,
 12. Debts,
13. Shares in a corporation.
14. All other saleable property, whether movable or immovable, that belongs
to the judgement debtor or over which, or the profits of which, he has a
disposing power that he may exercise for his own benefit, regardless of
whether the property is held in the judgement debtor’s name or by another
person in trust for him or on his behalf.

Items not eligible for attachment or sale under Section 60 CPC, 1908
1. The essential clothing, cooking utensils, beds and bedding of the judgement
debtor, his wife, and children, as well as any personal adornment that,
according to religious custom, no lady should be allowed to part with.
2. Tools of artisans, and, if the judgement debtor is an agriculturalist, his
implements of husbandry, such cattle and seed-grain as may, in the court’s
opinion, be necessary to enable him to earn his living as such, as well as a
such portion of agricultural produce or of any class of agricultural products that
may have been declared to be exempt from liability under the provisions of the
section that follows this one.
3. Books of account.
4. Dwellings and other structures belonging to an agriculturist or a labourer of a
domestic worker and occupied by him, along with the materials, sites, and land
directly adjacent to and necessary for their enjoyment.
5. A mere right to sue for damages.
6. Political pensions, as well as stipends and gratuities permitted to pensioners of
the government, a local government, or any other employer, or due from any
service family pension fund thus announced in the Official Gazette by the
Central Government or the state government;
7. The salary for domestic workers and labourers, whether it is payable in cash or
in kind;
8. Salary in the execution of any decree, excluding a decree for maintenance, up
to the first 1,000 rupees and two-thirds of the remaining amount.
9. The salaries and benefits of individuals are covered by the Air Force Act of
1950, the Army Act of 1950, or the Navy Act of 1957.
 10. The Provident Funds Act of 1925 currently applies to all mandatory
deposits and other sums in or derived from funds, insofar as those monies are
proclaimed by the aforementioned Act to be exempt from attachment.
11. Any sums due under a life insurance policy on the judgement debtor;
12. The interest of a lessee of a residential structure to whom the
requirements of the law relating to the management of rents and
accommodations are now applicable;
13. Any allowance included in the pay of any government employee, an
employee of a railroad, or employee of a municipal government that the
appropriate government has declared free from attachment, as well as any
subsistence grant or allowance given to that employee while they are on
suspension.
14. Any right of personal service.
15. A hope for succession through survivor’s rights or another merely
hypothetical or potential right or interest;
16. A claim to maintenance in the future;
17. Any allowance determined to be exempt from attachment or sale in
fulfilment of a decree by any Indian legislation, and
18. Any movable property that is exempt from payment of land revenue
under any current law that applies to the judgement debtor is not considered to
be part of that obligation.
19. Sale in order to make up for revenue arrears.

Q11) Procedure for appeals from original decrees and appeals from order?
A) Appeal from an Original Decree
 Section 96 of the CPC states the provisions regarding the appeal from the
original decree.
 It states that where otherwise expressly provided in the body of this Code or by
any other law for the time being in force, an appeal shall lie from every decree
passed by any Court exercising original jurisdiction to the Court authorized to
hear appeals from the decisions of such Court.
Legal Provision:
 Section 96 of CPC states as:
 o Clause (1) states that save where otherwise expressly provided in the
body of this Code or by any other law for the time being in force, an
appeal shall lie from every decree passed by any Court exercising
original jurisdiction the Court authorized to hear appeals from the
decisions of such Court.
o Clause (2) states that an appeal may lie from an original decree passed
ex parte.
o Clause (3) states that no appeal shall lie from a decree passed by the
Court with the consent of the parties.
o Clause (4) states that no appeal shall lie, except on a question of law,
from a decree in any suit of the nature cognizable by Courts of Small
Causes, when the amount or value of the subject-matter of the original
suit does not exceed ten thousand. rupees.
Procedure for Filing an Appeal from Original Decree
 The Procedure for filing an appeal from original decree is covered under Order
XLI and rules as
 Rule 1 states Form of appeal What to accompany memorandum as:
o Every appeal shall be preferred in the form of a memorandum signed by
the appellant or his pleader and presented to the Court or to such officer
as it appoints in this behalf. The memorandum shall be accompanied by
a copy of the Judgment.
o Provided that where two or more suits have been tried together and a
common judgment has been delivered therefor and two or more appeals
are filed against any decree covered by that judgment, whether by the
same appellant or by different appellants, the Appellate Court may
dispense with the filing of more than one copy of the judgment.
o Contents of Memorandum. —
 The memorandum shall set forth, concisely and under distinct
heads, the grounds of objection to the decree appealed from
without any argument or narrative; and such grounds shall be
numbered consecutively.
o Where the appeal is against a decree for payment of money, the
appellant shall, within such time as the Appellate Court may allow,
deposit the amount disputed in the appeal or furnish such security in
respect thereof as the Court may think fit.
 Rule 2 states Grounds which may be taken in appeal:
 o The appellant shall not, except by leave of the Court, urge or be heard in
support of any ground of objection not set forth in the memorandum of
appeal; but the Appellate Court, in deciding the appeal, shall not be
confined to the grounds of objections set forth in the memorandum of
appeal or taken by leave of the Court under this rule.
o Provided that the Court shall not rest its decision on any other ground
unless the party who may be affected thereby has had a sufficient
opportunity of contesting the case on that ground.
 Rule 3 states Rejection or amendment of memorandum:
o Where the memorandum of appeal is not drawn up in the manner
hereinbefore prescribed, it may be reje cted or be returned to the
appellant for the purpose of being amended within a time to be fixed by
the Court or be amended then and there.
o Where the Court rejects any memorandum, it shall record the reasons for
such rejection.
o Where a memorandum of appeal is amended, the judge, or such officer
as he appoints in this behalf, shall sign or initial the amendment.
 Rule 3A states Application for condonation of delay:
o When an appeal is presented after the expiry of the period of limitation
specified therefore, it shall be accompanied by an application supported
by affidavit setting forth the facts on which the appellant relies to satisfy
the Court that he had sufficient cause for not preferring the appeal within
such period.
o If the Court sees no reason to reject the application without the issue of a
notice to the respondent, notice hereof shall be issued to the respondent
and the matter shall be finally decided by the Court before it proceeds to
deal with the appeal under rule 11 or rule 13, as the case may be.
o Where an application has been made under sub-rule (1), the Court shall
not make an order fact the stay of execution of the decree against which
the appeal is proposed to be filed so long as the Court does not, after
hearing under rule 11, decide to hear the appeal.
 Rule 4 states One of several plaintiffs or defendants may obtain reversal of
whole decree where it proceeds on ground common to all:
o Where there are more plaintiffs or more defendants than one in a suit,
and the decree appealed from proceeds on any ground common to all
the plaintiffs or to all the defendants, any one of the plaintiffs or of the
defendants may appeal from the whole decree, and thereupon the
 Appellate Court may reverse or vary the decree in favour of all the
plaintiffs or defendants, as the case may be.
Appeal from order:
An order is a judgment communicated by the court (or the board), which doesn’t
contain a pronouncement of decree (the last judgment). As such, an order is a
command by the judge to one of the parties to the suit, educating the plaintiff party to
take (or not take) explicit actions.
Order 43, Rule 1: An appeal will lie from the accompanying requests under the
arrangements of Section 104, specifically:
 An Order under Rule 10 of Order VII is for restoring a plaint to be exhibited to
the correct court, with the exception of the system which is determined in Rule
10-A of the Order has been pursued. Which says that court can add any
person as party at any point of proceedings.
 An Order under Rule 9, Order IX dismissing an application (for a situation open
to appeal) for a request to put aside the expulsion of a suit.
 An Order under Rule 13 of Order IX dismissing an application (for a situation
open to appeal) for an order to put aside a decree passed out.
 An Order under Rule 21 of Order XI, if there should be an occurrence of
rebelliousness with an order for disclosure.
 An Order under Rule 34 of Order XXI is for an issue with the draft of the report
of support.
 An Order under Rule 72 or Rule 92 of Order XXI saving or declining to put
aside a deal.
 An Order dismissing an application under sub-rule (1) of Rule 106 of Order
XXI, gave that a request on the first application, in other words, the application
alluded to in sub-rule (1) of that Order is appealable.
 An Order under Rule 9 of Order XXII declining to put aside the reduction or
rejection of a suit.
 An Order under Rule 10 of Order XXII giving or declining to give leave.
 An Order under Rule 2 of Order XXV dismissing an application (for a situation
open to offer) for a request to put aside the rejection of suit.
 An Order under Rule 5 or Rule 7 of Order XXXIII dismissing an application for
authorization to sue as a poor individual.
 Orders in interpleaded suits under Rule 3, Rule 4 or Rule 6 of Order XXXV.
 An Order under Rule 2, rule 3 or rule 9 of Order XXXVIII.
  An order under rule 1, rule 2, rule 2A, rule 4, or rule 10 of Order XXXIX;
 An order for refusal under rule 19 of Order XL1 to re-concede, or under rule 21
of Order XLI to re-hear, an intrigue or appeal;
 An order under rule 23 or rule 23-A of Order XLI remanding a case, where an
appeal would lie from the pronouncement of the investigative court;
 An order under rule 4 of Order XLVII giving an application for the survey.

Q14) Conditions required and difference between set-off and counter-claim?

A) Introduction
 A plaintiff initiates the process of a civil suit by instituting a plaint in civil court
bearing the jurisdiction to entertain that suit.
 Moreover, to continue the case and table his side of the story, the defendant
must submit a written statement.
 In certain circumstances, the written statement includes a set-
off and counterclaim.
 If the defendant has a counterclaim or wants to set off, he must incorporate in
the written statement as crossclaims.
 Furthermore, the limitation period to submit a written statement including set-off
or counterclaim is 30 days from the filing of the plaint.
Set-off
 When the plaint includes the issue of recovery of debts, set-off can be
incorporated into the written statement.
 Set-off is not defined in the Code of Civil Procedure, 1908 (CPC), its gist is
borrowed from interpretation in judicial precedents.
o In the case of recovery of debts if defendant has a reciprocal claim, he
can claim through the process of set-off.
Illustration:
A filed a suit against B claiming that he had taken Rs. 50,000 from him and the
amount has become due. Now, B has also claimed that A has taken Rs. 20,000 from
B and the amount is due as a debt. In such a scenario, both parties are mutually
indebted to each other, and they both have to pay off the debts due to each other.
Instead of filing a fresh suit altogether, B files a set-off claim along with the written
statement in response to the plaint filed by A for those Rs. 20,000 due.
History of Set-off
  The principle of set-off as a crossclaim by the defendant is borrowed from
the doctrine of compensation.
 Moreover, the principle of set-off was known as Stoppage in the English
Chancery Courts.
o The English courts adopted this doctrine as a right of the defendant in the
year 1729.
o The adoption of this doctrine was through statutory procedure.
 It was held by Kerala High Court in Sukumaran v. Madhvan (1982) that only
suit for recovery of money is eligible for crossclaim in the form of set-off.
Essentials of Set-off
 Defendant has the right to claim.
 The plaint must be for the recovery of debts.
 The debt amount must be definite and mentioned.
 The amount must be of a recoverable nature.
 It must be within the pecuniary limit of the court.
 Both the parties must fill the same character as mentioned in the plaint.
Position of Set-off in CPC, 1908
Order VIII Rule 6 of the CPC states the particulars of the set-off to be given in the
written statement. The provision states following ingredients: -
 The defendant may submit a written statement containing the amount as debt
to set off at the first hearing of the suit and not afterwards.
 It will be on the same footing as a plaint in a cross-suit. But it will not affect the
lien.
 Rules for written statement and claim in the form of set-off are same.
Types of Set-off
There are two types of Set-off as mentioned below: -
 Legal Set-off
o Order VIII Rule 6(1) CPC discusses the Legal Set-off.
o The amount must be mentioned for the legal set-off.
o The amount must be of a recoverable nature.
o Defendant must pay court fees for the process.
 o The set-off under written statement must be filed within the period of
limitation prescribed.
 Equitable Set-off
o It is present in a vague manner under Order XX Rule 19(3).
o The doctrine is based on the principle of ‘Equity, Justice and Good
Conscience’.
o It is governed by the English law.
o It is a claim for an unascertained amount of money.
o It must arise out of the same transaction or connected with the
transaction of money claimed in the petition.
o It is based on the discretion of the court of law.
o Defendant may or may not pay the court fees.
Counterclaim
 It is enshrined in Order VIII Rule 6A – 6G of the CPC.
 The 27th Law Commision Report of 1964 recommended to set-up a right to file
counterclaim in the civil procedure a right for the defendant.
 As an aftermath of the recommendation, CPC (Amendment) Act, 1976 added
rules 6B to 6G to the existing act.
Concept of Counterclaim
 It is a claim which is independent in nature or can be separated from the
claim of the plaintiff.
 When the cause of action arises against the plaintiff the defendant gets the
right to submit that claim along with the written statement.
 It is considered as a plaint by the defendant against the claim of the plaintiff
and is dealt with in the same manner as a plaint.
 Furthermore, the plaintiff has an opportunity to file a written statement against
the plaint consisting of the counterclaim.
Purpose of Counterclaim
 To stop the multiplicity of suits.
 To save the time of the court of law.
 To make the civil procedure convenient for parties.
 To make the timely trials.
Time of Filing Counterclaim
 A counterclaim can be filed in three situations aligned below: -
 before or after filing the suit,
 before the defendant has delivered his defence,
 before the time limited for delivering his defence, expired.
Essentials of Filing Counterclaim
 It must be filed by the defendant.
 It must for an independent or a claim that is separable in nature.
 It must be filed against the plaintiff. It can be filed against co-defendants in
some scenarios.
 It must be in respect of any incident that happened before or after the filing of
the suit.
 It cannot be filed at the appellate stage before the appellate authority.

Difference Between Counterclaim and Set Off

 Order 8 Rule 6A mentions “Such counterclaim shall have the same effect as
a cross-suit so as to enable the Court to pronounce a final judgment in the
same suit, both on the original claim and on the counterclaim" whereas in Set-
off, the written statement has same effect as a plaint in cross-suit.
 In Set-off the suit must be for recovery of money and the claim must be for
a mutual debt but it is not the case of a counterclaim.
 Set-off is classified into two categories that are legal set-off and equitable set-
off whereas there is no such segregation in the case of a counterclaim.
 Set-off must arise out of same transaction but the counterclaim is not
required to arise out of same transaction.

Q15)Basic aspects of jurisdiction of review, reference and revision?

A) Reference

Section 113 of Civil Procedure Code deals with the provision of reference. Under the
provision of Section 113, a lower or subordinate court can reach out to higher court
for the doubt in order to avoid the misinterpretation of the law which is called
reference. Parties through an application can move the reference to the High court.
Lower Court can apply the provision of reference suo-moto in case of any doubt with
respect to any legal provision. The lower court is not bound to refer to the High Court
other than in case of validity of legal provision. It helps the lower court to avoid
commission of error while pronouncing the judgement.
Object
The object behind the provisions of Reference is to empower the subordinate court
to obtain the opinion of the High Court in non-appealable cases when there is a
question of law so that any commission of error could be avoided which couldn’t be
remedied later on.
As held in the case of Diwali Bai v. Sadashivdas, the reference must be made
before passing of the judgement of the case.

Conditions for seeking reference

Order 46 of CPC mentions the procedure of making a reference. In order to make a
reference to High Court, subordinate court needs to satisfy the condition mentioned
in Order 46 of Civil Procedure Code which has been produced as follows:
1. The suit or appeal must be pending before the court while making a reference
and no further appeal from the order of such suit or decree is lying before the
court.
2. The question of the validity of provision of law must have arisen during the
pendency of the suit i.e. during proceeding of the suit in the court.
3. When such doubt regarding the validity of the provision of law has arisen, the
court must have been entertaining the suit.
While making the reference, the district court can put the case on stay, or it can pass
a contingent order. The subordinate court, after taking into account the opinion of the
high court where such reference has been made, may pass order or decree.
Review
Section 114 of Civil Procedure Code defines the provision of review. In case of
review, the party who is not happy or aggrieved with the order of the court can file an
application for review in the same court which has passed the decree. This provision
has been made so as to facilitate the court to review their own decree or judgement
and rectify the same in case any error has been made while passing the judgement.
Object
Any human being can make a mistake or error and so do the judges. So, the
procedure of Review has been embedded in the legal system to correct the mistakes
and prevent any miscarriage of justice as held in the case of S.Nagraj v. State of
Karnataka. The review application is not an appeal or revision made to the superior
court, but it is a request to recall and reconsider the decision made before the same
court.
Grounds of Review
There are certain grounds laid down under Rule 1 of Order 47 on which an
application made for the review of a judgement is maintainable:
 On the discovery of new and important matter or evidence
A court can review its judgement when some new and important matter or evidence
is discovered by the applicant which couldn’t be produced or was not available at the
time of passing the decree.
 When the mistakes or errors are apparent on the face of the record
When there is an apparent error on the face of record then the court may review its
judgement or decree.
 Other sufficient reason
The last ground for review is any sufficient reason. Any sufficient ground considered
for review by the court comes under this ground. It could be any reason which the
court feels sufficient to review its judgement in order to avoid a miscarriage of justice.

Revision
If we go to the literal meaning, “to revise” stands for “to look again” or “to look
repeatedly at” or “to go through a matter carefully and correct where necessary”. The
High Court has been empowered with the revisional jurisdiction under section 115
of the Code of Civil Procedure,1908.
Object
The object behind empowering the High Court with revisional jurisdiction is to
prevent arbitrary illegal or irregular exercise of jurisdiction by the subordinate court.
Under section 115 the High Court is empowered to keep an eye on the proceedings
of subordinate courts that the proceedings are being conducted in accordance with
the law, under its jurisdiction for which it is bound for and in furtherance of justice as
held in the case of Major S.S Khanna v. Brig. F.J. Dillion.
But, the judges of the subordinate court have absolute jurisdiction to decide a case
and even when they have wrongfully decided a case, they do not commit
any “jurisdictional error”. With the power of revision, the High Court can correct
the jurisdictional error when committed by the subordinate court. The provision of
revision provides an opportunity to the aggrieved party to get their non-appealable
orders rectified.
Conditions
Section 115 of the Code of Civil Procedure Code lays down all the conditions
when the High Court can exercise its revisional jurisdiction:
1. The case must be decided.
2. The revisional jurisdiction is exercised when no appeal lies in the case decided
by the subordinate court.
3. The subordinate court has decided such case by:
1. Exercise of jurisdiction which is not vested to that court by law., or
2. It has failed to exercise the vested jurisdiction, or
3. Illegal exercise of the vested power or with immaterial irregularity.

Q17. Difference between judgement, decree and order.

A) Nature
 A judgement explains the reasons for the court’s decision and serves as the
basis for a decree or order.
 A decree is the formal expression of the court’s decision that conclusively
determines the rights of the parties in a suit.
 An order is a formal expression of the court’s decision that does not qualify as
a decree and typically addresses procedural or interlocutory matters.
Scope
 A judgement provides reasoning and addresses all issues raised in the suit.
 A decree deals with the final adjudication of the rights of the parties.
 An order deals with both procedural and substantive issues but does not finally
adjudicate the rights of the parties, except in cases of final orders.
Appeal
 A decree can generally be appealed and a second appeal may also lie in
certain circumstances.
 An order can only be appealed if it is specified as appealable under Section
104 and Order 43 Rule 1.
  A judgement cannot be appealed independently; only the decree or order that
follows the judgement can be appealed.
Finality
 A judgement leads to the passing of a decree or order.
 A decree is conclusive and determines the rights of the parties.
 An order may or may not be final and may require further adjudication of the
matter.

Key Differences Between Order, Decree and Judgement

Criteria Judgement Decree Order

Formal expression
A statement given by
of adjudication that Formal expression of a
the judge based on a
conclusively decision that is not a
Definition decree or order
determines rights decree (Section 2(14) of
(Section 2(9) of
(Section 2(2) of CPC).
CPC).
CPC).

A concise statement
of the case, points
Adjudication, suit,
for determination, Formal expression, non-
determination of
Essentials the decision on decree, must be issued
rights, conclusive,
points, reasons for by a civil court.
formal expression.
the decision, and
relief granted.

Preliminary, Final,
Final, Interlocutory,
No specific types of Partly Preliminary
Types Appealable, Non-
judgements. and Final, Deemed
Appealable.
Decree.

Judgements Appealable under

themselves are not normal Only certain orders are
Appealability appealable, but the circumstances, appealable under Section
decree/order based second appeals 104 and Order 43 Rule 1.
on it may be. may also lie.
 Conclusive
Forms the basis for a May or may not be final,
determination of
Finality decree or order, not depending on the nature
rights; final except
final on its own. of the order.
when appealed.

Addresses procedural or
Provides reasoning Concludes the
Relation to substantive issues, may
for the court’s rights of the parties
Case or may not conclude
decision. in a civil suit.
rights.

Q18) Procedure in suits by or against the government?

A) Introduction
 Section 79, Section 80 and Order XXVII of the Civil Procedure Code, 1908
(CPC) deal with the procedure where the suits are brought by or against the
Government or Public officers acting in an official capacity.
Section 79, CPC
 Section 79 is a procedural provision and contains provisions in relation to
the suits by or against the government.
 It states that in a suit by or against the Government, the authority to be
named as plaintiff or defendant, as the case may be, shall be—
(a) in the case of a suit by or against the Central Government, the Union of
India, and
(b) in the case of a suit by or against a State Government, the State.
 No cause of action is provided in this section, and it only declares the mode
of the procedure when the cause of action arises.
 Under this section, only the courts within whose local limits, the cause of
action arises, have the jurisdiction to try the suit.
Section 80, CPC
 Section 80 of CPC deals with the provisions relating to notice which a
condition precedent before filing a suit against the government or against a
public servant.
 It states that -
(1) Save as otherwise provided in sub-section (2), no suits shall be
instituted against the Government or against a public officer in respect of any act
purporting to be done by such public officer in his official capacity, until the
expiration of two months after notice in writing has been delivered to, or left at
the office of—
(a) in the case of a suit against the Central Government, except where it relates to
a railways, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to
railway, the General Manager of that railway;
(c) in the case of a suit against any other State Government, a Secretary to that
Government or the Collector of the district and, in the case of a public
officer, delivered to him or left at his office, stating the cause of action, the name,
description and place of residence of the plaintiff and the relief which he claims; and
the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government or any
public officer in respect of any act purporting to be done by such public officer in his
official capacity, may be instituted, with the leave of the Court, without serving any
notice as required by sub-section (1); but the Court shall not grant relief in the
suit, whether interim or otherwise, except after giving to the Government or public
officer, as the case may be, a reasonable opportunity of showing cause in respect of
the relief prayed for in the suit.
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent
or immediate relief needs to be granted in the suit, return the plaint for
presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in respect of
any act purporting to be done by such public officer in his official capacity shall be
dismissed merely by reason of any error or defect in the notice referred to in
sub-section (1), if in such notice—
(a) the name, description and the residence of the plaintiff had been so given as
to enable the appropriate authority or the public officer to identify the person serving
the notice and such notice had been delivered or left at the office of the appropriate
authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been
substantially indicated.
 The object of the notice is to give the government or public servant an
opportunity to reconsider its or his legal position and to make
amendments if so, advised by the legal expert.
  This Section applies to all suits whether they are suits for injunctions or suits
for declarations and suits for damages.
o It does not apply to the writs filed before the High Court or
the Supreme Court.
 A notice must contain:
o Name, description, and place of residence of the person giving notice
o A statement of the cause of action.
o The relief claimed by the person.
Order XXVII, CPC
 This order deals with the Suits by or against the government or public
officers in their official capacity.
 Rule 1 of Order XXVII states that in any suit by or against the Government,
the plaint or written statement shall be signed by such person as the
Government may, by general or special order, appoint in this behalf, and
shall be verified by any person whom the Government may so appoint and who
is acquainted with the facts of the case.
 Rule 2 of Order XXVII states that the persons being ex officio or otherwise
authorized act for the Government in respect of any judicial proceeding shall
be deemed to be recognized agents by whom appearances, acts and
applications under this Code may be made or done on behalf of the
Government.
 Rule 3 of Order XXVII states that in suits by or against the Government,
instead of inserting in the plaint the name and description and place of
residence of the plaintiff or defendant, it shall be sufficient to insert the
appropriate name as provided in section 79 of CPC.
 Rule 4 of Order XXVII provides that the Government Pleader shall be the
agent of the Government for the purpose of receiving processes against the
Government by the Court.
 Rule 5 of Order XXVII provides that the Court will, in fixing the day for the
Government to answer the plaint, shall allow a reasonable time for the
necessary communication with the Government through the proper channel.
o Rule 5A of Order XXVII provides that the Government will be joined
as a party in a suit against a public officer in respect of any act alleged
to have been done by him in his official capacity.
 o Rule 5B of Order XXVII deals with the duty of Court in suits against the
Government or a public officer to assist in arriving at a settlement.
 Rule 6 of Order XVII provides that the court can direct the attendance of a
person who is able to answer any material question relating to the suit against
a government.
 Rule 7 of Order XVII deals with the extension of time to enable public officers
to make reference to the Government.
 Rule 8 of Order XVII provides that where the government undertakes a
defense of suit against a public officer, the government pleader will apply to
the court for the same and court upon such application shall cause a note of
his authority to be entered in the register of civil court. If no application is
made by a government pleader, then the case shall proceed as in a suit
between private parties:
o Rule 8A of Order XVII provides that no such security as is mentioned in
rules 5 and 6 of Order XLI shall be required from the Government.
o Rule 8B of Order XVII contains the definition of Government and
Government pleader.

Q19) Powers of an appellate court?

A) POWERS OF APPELLATE COURT
Under Civil Procedure Code, 1908, the provisions which enumerate the powers of an
appellate court while hearing first appeals. Sections 96-108 and Rules 23 to 33 of
Order 41 of the Code conferred these powers. They may be giving a brief statement
thus:
 POWER TO DECIDE A CASE FINALLY
Section 107(1) (a) and Rule 24 of Order 41 facilitate the appellate court to set out
of a case finally. Where the proof on record is adequate to enable the appellate court
to pronounce judgment, it may finally conclude the case despite that the judgment of
the trial court has proceeded completely upon a ground other than with the intention
of on which the appellate court proceeds.
 POWER TO REMAND
Section 107 (1) (b), Rules 23-23A of the Code concerns about the power to
remand, here remand means to send back. Rule 23 of Order 41 of the Code Confers
that if the court of the trial has a case on a preliminary point without documenting
findings on other issues and the court of appeal reverses the decision thus passed, it
may refer the case back to the court of the trial to decide on additional matters and to
conclude the case. This is called a remand.
There have to be precedent conditions to be followed to be able to allow such a
remand. Initially, the trial court must have disposed of the claim, which on a
preliminary point means a lower court. Furthermore, the decision under appeal must
have been overturned and, lastly, some other justification must have occurred which
has broadened its scope under Rule XXIII, which states that the appeal court may
revoke a case even if the case has been disposed of by the lower court other than on
a preliminary point and where the preservation is deemed of utmost importance in
acting in the interests of the court.
 POWER TO ISSUES AND PASS ON THEM FOR TRIAL
Section 107(1)(c), Rules 25-26 concerns about this power. This is considered very
necessary in cases where abstinence has been exercised by the lower court in
performing its functions of framing any issue or attempting any matter or deciding
some question of fact that is needed to be decided to dispose of the suit on merit. In
all these circumstances, the court of appeal has the authority to frame issues for the
lower court and may also fix a certain time limit whilst referring them for the trail. It is
provided in section 107(1) (c) above.

 POWER TO TAKE ADDITIONAL EVIDENCE

It is conferred under section 107(1)(d), Rules 27-29. It is an appellate court’s power
to take further evidence. Anything else, what we call it a general law is that such an
appeal must be decided by the appellate court on the testimony provided by the
lower court parties. Nevertheless, this exemption as provided for in Section 107(1)
(d) has three requirements to be met by the parties presenting such additional
evidence in the court of appeal which is, first, that the person demanding such
admission of additional evidence should be able to demonstrate the reason why he
was unable to produce it at first. Another condition is that the party concerned should
have an opportunity to refute such additional evidence by admitting additional
evidence. Third, empirical information must be important to solving the problem.
In this case,1 section 107 is an exemption to the general principle and empowers the
court to take additional evidence or require such evidence to be taken subject to the
circumstances laid down in Rule 27 of Order 41.
 POWER TO MODIFY DECREE
Under the provision of the Code, Rule 33 of Order 41 entitles an appellate court to
render whatever order it thinks fit, not only as between the appellant and the
respondent however also as connecting one respondent and another respondent. An
appellate court’s right to change a decision is very relevant. This power is an
authoritative but discretionary force. This is very clear that if the verdict is overturned
in an appellate, the appeal court passes the order on the same overturned verdict.
The same rules and procedures are dealt with in compliance with Rule XXXIII. The
jurisprudential strategy behind this law is to allow the appeal court to take the whole
issue into its own hands and to administer complete justice.
.
LIMITATIONS
The rule does not confer unrestricted right to reopen decrees which have become
final merely because the appellate court does not agree with the opinion of the trial
court. Nor the appellate court will interfere with the finding of fact. The discretionary
power cannot be exercised to nullify the effect of the abatement of appeal.

Q21) Various modes of service of summons?

A) The word ‘summon’ has not been defined anywhere in the code. The definition of
summons as given by the Oxford dictionary states that, “a document which is issued
from the court of justice and calls upon a person to whom it is directed, to be present
before a judge or court for a specific reason is called a summon.” Issue and service
of summons are given under Order 5 of the Code.
Objective of summons
The following are the objectives of summons:
 It is important to inform a person about any legal action that has been taken
against them.
 It gives an opportunity to the defendant to present his case and side of the
story.
 The basis of summons lies in the maxim “Audi Alteram Partem”, which means
to hear both sides.
 It further helps in following the principles of natural justice and ensures fair
proceedings and trial.
Essentials:
The following are the requisites of a valid summons:
a. it should be signed by the presiding officer issuing the summons or by the
officer appointed for that purpose;
b. the seal of the court should be affixed on it;
c. the copy of plaint should be enclosed;
 d. the date, place and time should be mentioned when any individual and his
advocate is to present in the court;
e. the purpose of issuing summons should be mentioned
f. if the summon is issued to call any document then full particular of that
document should be given.

Modes of Service:
Under Rule 12, order 5 of Civil Procedure Code 1908, various modes of service of
summons have been described.

These modes are as follows:

1. Personal Service:
This is the most popular method of service of summons. Under this, the copy of
summons is given to the defendant. The signature of the defendant are taken
on the second copy. Such service may be effected on the authorized agent of
the defendant (Order 5, Rule 15).

2. Service by fixing the Summons:

This is the second method of service of summons. When the personal service
is not possible; then the copy of the summons can be affixed on that building;
gate or at such visible places where that person;

i. resides; or
ii. does his business; or
iii. works himself for profits or gains (order 5, Rule 17).
When service of summons is effected by above method, then the officer who effects
such service by this mode will submit his report to the court mentioning the reasons
for such service. The names and addresses of those persons will be written who
have identified such house.

When summons have been issued on both husband and wife both, and the husband
has refused to take summons; the service of summons on wife could not have been
made because she was inside the house; then the affixing the summons on the
visible portion of the house was considered proper (Meera Rani De Vs Goswami,
A.I.R. 1977, Calcutta 372).
 3. Substituted Service:
The third method of service of summons is substituted service. Its mention has
been made under order 35, Rule 20 of the code. This mode of service is used
only when;

a. the defendant tries to avoid taking summons, or

b. the summons could not be served by other normal methods.
Under such conditions, the summons can be served by using the following
methods:

iii. by affixing one copy of the summons on the consoecuous place of the
court;
iv. by affixing the conspicuous place of the resident of the defendant at his
place of business or at the place where he works and
v. by publishing in the daily newspaper circulating in that area.

4. Service of summons by post:

Under Rule 9, order 5 of the code, the service of summons can be also be
made by following methods:

a. By registered post;
b. By speed post;
c. By courier service;
d. By fax message;
e. By electronic mail service.

When a summon is sent by registered post then the acknowledgement si signed by

the defendant or his agent. It is sufficient service of summons. If the defendant
refuses to take this, it is also considered as sufficient service.

5. Service of Summons on the defendant leaving in the jurisdiction of other

court:
If the service of summons is to be effected on the defendant who is detained in
the prison, their for such service, the incharge of such service prison shall be:
 a. informed or
b. summon shall be sent to him by post; or
c. by courier service; or
d. by fax message
e. by electronic mail service.
The incharge of such prison shall effect the service fo such summons on the
defendant (order 5, Rule 24).

6. Service of Summons Outside India:

If the service of summon is to be effected on such person who resides outside
India and his representative or agent does not reside in India, then summons
shall be rent to him;

a. by post;
b. by courier services;
c. by fax message;
d. by electronic mail service (order 5, Rule 25)
if such defendant resides in Bangladesh or Pakistan, then the summons shall be
sent to any court in that country.

7. Service of Summons by Political Agent or Court:

Another mode of service of summon in other countries has been stated under
order 5, Rule 26 of the code. According to this, summons shall be sent to the
political agent or court of that country under whose jurisdiction such defendant
resides, does his business or works for profits or gains.

8. Service of summons on the Public Officer:

If the service of Summons is to be effected on:

a. any public officer

b. any employee in service of Railway Company or
c. on local officer.

Q22) Procedure in suit relating to public matters?

A) Introduction
Section 91 of the Civil Procedure Code, 1908 (CPC) provides for the filing of a suit
in the case of public nuisance or other wrongful acts affecting the public at large. It
states that such a suit can be instituted for declaration, injunction or such other relief
which may be appropriate in the circumstances of the case.
Section 91 of CPC
 This Section deals with public nuisances and other wrongful acts affecting
the public. It states that -
(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect,
the public, a suit for a declaration and injunction or for such other relief as may be
appropriate in the circumstances of the case, may be instituted, —
(a) By the Advocate-General, or
(b) With the leave of the Court, by two or more persons, even though no special
damage has been caused to such persons by reason of such public nuisance or
other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of
suit which may exist independently of its provisions.
 The expression public nuisance has not been defined in the Code. It can
however be said to be an act or omission which causes common
injury, danger or annoyance to the public or to the people in general who dwell
in or occupy property in the vicinity.
 Obstruction of a public highway, pollution of public waterways, storage of
inflammable materials, endangering life, health or property of public etc.
are instances of public nuisances.
Test for Public Nuisance
 Whether or not a particular act or omission would amount to
nuisance depends on the facts and circumstances of each case and no
rule of universal application can be laid down.
Who May Sue?
 Any of the following persons may bring a suit in relation to public
nuisance or other wrongful acts:
o Advocate General
o Two or more persons with the leave of the Court
o Any private person if he has sustained special damage
Remedies
 The following remedies are available against public nuisance:
o A person committing a public nuisance may be punished under the
provisions of Indian Penal Code, 1860 (IPC).
o Magistrates may remove public nuisance in certain circumstances by
exercising summary powers.
o A suit can be instituted for declaration, injunction or other appropriate
relief without proof of special damage.
o A suit may also be filed by a private individual, where he has suffered
special damage.
Appeal
 An appeal lies against an order refusing to grant leave to file a suit for public
nuisance or other wrongful acts affecting the public.
Case Law
 In the case of Municipal Council Rathlam v. Vardichan (1980), the Supreme
Court observed that a public nuisance is a challenge to the social justice. In
case of public nuisance, it is the power coupled with duty of the Government or
local authority to take appropriate steps to remove it.

Q23) Appeal? Grounds of appeal? Types?

A) Meaning of appeal

The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law
Dictionary, while construing the concept of ‘appeal’ in its most original and natural
sense, explains it as “the complaint to a superior court for an injustice done or error
committed by an inferior one, whose judgment or decision the Court above is called
upon to correct or reverse. It is the removal of a cause from a Court of inferior
jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and
retrial”.
Essentials / Grounds of Appeals
An appeal under CPC is a legal process in which a higher forum reviews the decision
of a lower forum on both legal and factual grounds. The higher forum has the
jurisdiction to either uphold, reverse, modify the decision, or send the case back to
the lower forum for a fresh decision, following the directions given by the higher
forum. The three essential elements of appealing cases can be summarised as
follows:
  A decree issued by a judicial or administrative authority.
 An aggrieved individual who may not have been a party to the original
proceeding.
 A reviewing body was established specifically to handle such appeals in CPC.
Types of Appeal
Kinds of Appeal:
Appeals can be divided into following four classes according to the provisions of the
Code of Civil procedure.
1. Appeals from original decrees,
2. Appeals from appellate decrees (Second Appeals),
3. Appeals from Orders,
4. Appeals to the Supreme Court.

1.Appeal from Original Decree

Section 96 of the Code provides that the first way of challenging the decree, passed
by a court exercising the original jurisdiction, is by filing an appeal in the court
‘authorized to hear appeals’ from the decisions of such court. It also provides that, an
appeal may lie from an original decree passed ex parte, i.e., without hearing the
other party. No appeal will lie from a decree passed by the Court with the consent of
parties. This kind of appeal is also known as ‘the first appeal’. It is permissible for
the appellate court to re-examine and re-appreciate the evidence, in the first appeal.
The right to institute the suit is an inherent right, but the right of appeal is statutory.
(Baldev Singh v. Surendra Mohan Sharma, AIR 2003 SC 225).
2.Appeals from Appellate Decrees/Second Appeal
Section 100-103 and 108 of CPC deals with the second appeal. This part of the code
contains provisions relating to appeal from ‘appellate decrees’ unlike from original
decree. As the word ‘second appeal’ clearly denotes, it is an appeal filed against the
order of an appellate court. Second here denotes the number of appeals, in laymen
terminology. Section 100 provides that an appeal shall lie to the High Court from
every decree passed in appeal by any Court subordinate to the High Court if the
High Court is satisfied that the case involves a substantial question of law. It must be
noted that second appeal only lies on the substantial question of law, not on the
question of facts.
3. Appeals from Orders:
It is a general rule created under the Code that only decrees are appealable and
orders are non-appealable. However, there can be circumstances where an order
can largely affect the rights of the parties to a suit and therefore, Section 104 was
enacted to provide a list of orders from which an appeal lies.

4. Appeals to the Supreme Court:

Article 132 provides for an appeal to the Supreme Court of any judgement, order
or decree from civil or criminal cases or any other proceedings. Supreme Court is
the topmost forum in the hierarchy of the Court. It is primarily the Court of appeal. It
is the highest forum for appeal in the country. The power of appellate jurisdiction is
given to the Supreme Court, by the Indian Constitution under Article 132, 133, 134,
134A.
Q25) Who can be joined as parties to a suit?
A) Parties to the Suit: Order I
Order I of the CPC is devoted to the subject of parties to suits, encompassing the
joinder, misjoinder and non-joinder of parties, as well as the joinder of causes of
action. Understanding the distinction between necessary and proper parties is
important for ensuring that all relevant parties are present in the suit and that the
court can effectively adjudicate the matter.
Joinder of Parties
The joinder of parties refers to the inclusion of multiple plaintiffs or defendants in a
single suit. Order I, Rule 1, outlines the conditions under which multiple persons may
be joined as plaintiffs in a single suit:
 Right to Relief: The plaintiffs must have a right to relief in respect of or arising
out of, the same act, transaction or series of acts or transactions.
 Common Question of Law or Fact: If separate suits were brought by these
persons, a common question of law or fact would arise.
Illustration: An altercation occurs between A, on one hand and B and C on the
other. A assaults B and C simultaneously. B and C can join as plaintiffs in one suit
against A for damages, as both the above conditions are fulfilled.
However, the court may intervene if it appears that the joinder of plaintiffs may
embarrass or delay the trial. In such cases, the court may put the plaintiffs to their
election, order separate trials or make other orders as necessary.
Joinder of Defendants
Order I, Rule 3, similarly provides for the joinder of defendants in a suit:
 Right to Relief: The right to relief must exist against the defendants
concerning the same act, transaction or series of acts or transactions.
 Common Question of Law or Fact: If separate suits were brought against
these defendants, a common question of law or fact would arise.
Case Law: Govindaraju v. Alagappa (AIR 1926 Mad 911): In this case, the court
held that the word “and” in Order III indicates that both conditions for joinder must be
satisfied cumulatively. This means that both conditions (right to relief and common
question of law or fact) must be explicitly met for the joinder of defendants.
Illustration: B, C, D and E each separately enter into agreements with A to supply
100 tins of oil. They fail to supply the goods. A cannot join B, C, D and E as
defendants in one suit for damages, as these are distinct contracts and therefore
constitute separate transactions.
Necessary and Proper Parties
Before delving into the concepts of non-joinder and misjoinder, it is important to
understand the terms “necessary party” and “proper party”:
 Necessary Party: A necessary party is one whose presence is indispensable
for the proceedings and for a final decision in the suit. Without this party, no
effective decree can be passed.
 Proper Party: A proper party is one whose presence is not indispensable for
an effective order, but whose presence is required for a complete and final
decision of the suit.
Misjoinder and Non-joinder of Parties (Order I, Rule 9)
Order I, Rule 9, addresses the consequences of misjoinder and non-joinder of
parties:
 Misjoinder: Occurs when two or more persons are joined as plaintiffs or
defendants in contravention of the rules outlined in Order I, Rules 1 and 3,
respectively. In such cases, these persons are neither necessary nor proper
parties.
  Non-joinder: Refers to a situation where a necessary party has not been
joined in the suit. If the decree cannot be effectively enforced without the
absent party, the suit may be liable to dismissal.

Q26) Procedure to be followed in suit by indigent persons?

A) Who is an Indigent Person?
The term ‘indigent person’ is defined under Order XXXIII, Rule 1 of the CPC. An
indigent person is someone who:
 Does not possess sufficient means to pay the court fees required for filing a
suit.
 Does not own property worth ₹1,000, excluding essential items such as
clothing, household utensils, and other basic necessities.
Thus, indigence is determined by a person’s inability to afford the court fees and their
lack of substantial property that can be liquidated to pay the fees.
Exclusion of Property
While assessing whether a person qualifies as indigent, certain properties are
excluded from consideration. These include:
1. Clothing and household utensils: Necessary for the maintenance of life.
2. Immovable property: If it is an essential source of livelihood and cannot be
easily liquidated.
3. Tools of trade: Tools essential for the person’s trade or profession.
If a person’s assets exceed the prescribed threshold or if they are found to have
disposed of property fraudulently to qualify as indigent, their application will be
rejected.

Procedure for Filing Suits by Indigent Persons Under CPC

To file a suit as an indigent person, an individual must follow a prescribed legal
procedure under Order XXXIII. The key steps involved are as follows:
1. Filing of Application (Order XXXIII, Rule 2)
The first step for an indigent person is to file an application to the court seeking
permission to file a suit without paying court fees. The application must contain the
following details:
  A description of the applicant’s financial status and lack of sufficient means to
pay court fees.
 A schedule of the applicant’s assets, including movable and immovable
property.
 The particulars of the plaint, just like a regular suit.
2. Inquiry into the Application (Order XXXIII, Rule 1A)
Once the application is filed, the court undertakes an inquiry to verify the applicant’s
claim of indigency. This inquiry is primarily conducted by the court’s chief ministerial
officer, although the court itself may also conduct the investigation if necessary. The
inquiry includes:
 Examination of the applicant’s financial status.
 Evaluation of the applicant’s property and assets.
 Inquiry into whether the suit is barred by law or if the applicant has any ulterior
motives.
If the court finds that the applicant is truly indigent, the application is admitted, and
the suit proceeds in the normal course.
3. Notice to the Opposing Party (Order XXXIII, Rule 6)
Before admitting the application, the court issues a notice to the opposite party
(defendant) and provides them with an opportunity to contest the indigency claim.
The defendant may argue that the applicant is not indigent, in which case the court
examines evidence from both sides.
4. Adjudication of the Application (Order XXXIII, Rule 7)
After conducting the inquiry and hearing both parties, the court decides whether the
applicant qualifies as an indigent person. If the court grants permission, the
application is treated as a plaint, and the case proceeds without the plaintiff being
required to pay court fees.
5. Rejection of Application (Order XXXIII, Rule 5)
The court may reject the application for permission to sue as an indigent person
under the following circumstances:
 The application is not presented in the prescribed manner.
 The applicant is found not to be indigent.
 The applicant has disposed of property fraudulently to qualify as indigent.
 The allegations in the plaint do not disclose a cause of action.
  The suit is barred by law.
 The applicant has entered into any agreement concerning the subject matter of
the suit with another person who has an interest in the case.
If the application is rejected, the applicant is free to file the suit in the ordinary
manner by paying the requisite court fees.
Rights and Liabilities of an Indigent Person
Once an individual is allowed to file a suit as an indigent person under CPC, certain
rights and liabilities are attached to their status.
Rights of an Indigent Person
1. Exemption from Court Fees: The primary right of an indigent person is that
they are exempted from paying court fees for the duration of the suit. This
includes fees for filing the plaint, process fees, and other litigation-related
expenses.
2. Representation by a Lawyer: If an indigent person is not represented by a
lawyer, the court may assign a legal representative to assist them in pursuing
their case. This is in line with the principle of free legal aid, as enshrined
in Article 39A of the Constitution.
3. Right to Appeal: An indigent person may file an appeal against a judgement or
order in the same manner as they filed the original suit—without paying court
fees. This is provided under Order XLIV of the CPC.

Liabilities of an Indigent Person

1. Payment of Court Fees if They Succeed: If an indigent person succeeds in
the suit, the court calculates the amount of court fees that would have been
payable had they not been indigent. This amount is then recovered from the
opposing party or the subject matter of the suit. The state has the first charge
on the property involved in the litigation.
2. Withdrawal of Indigent Status: The court may revoke the status of indigent
person if it is found that the individual’s financial situation has improved,
allowing them to pay the court fees. Additionally, if the person engages in
vexatious or improper conduct during the proceedings, the court may withdraw
their indigent status.
3. Liability for Costs if They Fail: If an indigent person loses the suit, they may
be liable to pay court fees and costs, just like any other litigant. In such cases,
the court can order the person to pay the fees retrospectively.
Appeals by Indigent Persons
Under Order XLIV of the CPC, an indigent person may also file an appeal without
paying the requisite court fees. The procedure for filing an appeal as an indigent
person is similar to the procedure for filing a suit. The court conducts an inquiry into
the applicant’s financial status, and if satisfied, grants permission to file the appeal
without fees.
However, if the court rejects the application for appeal, the indigent person is
required to pay the court fees within a specified time. If the fees are paid within this
time, the appeal proceeds as though the fees had been paid from the beginning.