cpc note by Praveen B S Asst. Prof. Al Ameen college of Law

Civil Procedure code notes unit I and II by Praveen B S (Asst. Prof.
of Al Ameen College of Law)
Civil Procedure code and Limitation Act

Unit I
1. Explain the kinds of jurisdictions. (Apr 21) Mar 21) (Apr 21)(Old Apr 21)
10 Marks.
Jurisdiction meaning jurisdiction may be defined to be the power or
authority of a court to hear and determine a cause, to adjudicate and exercise any
judicial power in relation to it. In other words, by jurisdiction is meant the
authority which a court has to decide matters that are litigated before it or to take
cognizance of matters presented before in formal way for its decision.
1. Civil and criminal jurisdiction
2. Territorial or local jurisdiction
3. Pecuniary jurisdiction
4. Jurisdiction as to subject matter
5. Original and appellate jurisdiction.
6. Exclusive and concurrent jurisdiction.
7. General and special jurisdiction.
8. Legal and equitable jurisdiction.
9. Domestic and Foreign jurisdiction.
10. Expounding or expanding jurisdiction
1. Civil and criminal jurisdiction.

Civil jurisdiction is that jurisdiction which deals with disputes of a civil
nature, as for instance, the commission of a tort or a breach of contract.
Criminal jurisdiction, on the other hand, is the one which relates to a crime
and deals with punishment of the offender, as for instance, prosecution for
murder or robbery.
2. Territorial or local jurisdiction: -
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Civil Procedure code notes unit I and II by Praveen B S (Asst. Prof. of Al Ameen College of Law)
Every court has its own local or territorial limits beyond which it cannot
exercise its jurisdiction. These limits are fixed by the government. The district
judge has to exercise jurisdiction within his district and not outside it. The High
Court has jurisdiction over the territory of a state within which it is situate and
not beyond it.
3. Pecuniary jurisdiction: -
The code provides that a court will have jurisdiction only over those suits
the amount value of the subject matter of which does not exceed the pecuniary
limits of its jurisdiction.
4. Jurisdiction as to subject matter:-

Different courts have been empowered to decide different types of suits.
Certain courts are precluded from entertaining certain suits. Thus, the presidency
small causes court has no jurisdiction to try suits for specific performance of a
contract, partition of immovable property, foreclosure or redemption of a
mortgage, etc.
5. Original and appellate jurisdiction:-

The jurisdiction of a court may be classified as original and appellate. In
the exercise of original jurisdiction, a court entertains and decides suits and in its
appellate jurisdiction, it entertains and decides appeals. Munsif’s courts, court of
civil judge and small cause courts possess original jurisdiction only; while district
courts and high courts have original as well as appellate jurisdiction.
6. Exclusive and concurrent jurisdiction.
If a particular type of suit can be filed only in one court or tribunal, and no
other court or tribunal can try that suit, it is a case of exclusive jurisdiction,
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as for instance, the Debt Recovery Tribunal, the Competition Commission,

etc. Concurrent or co-ordinate jurisdiction, on the other hand, is jurisdiction
which can be exercised by different courts or tribunal over the same subject-
matter. Thus, the Supreme Court and the High Courts have concurrent
jurisdiction to entertain writ petitions.
7. General and special jurisdiction
General jurisdiction extends to all cases comprised in one class or classes of
cases. Special or limited or exclusive jurisdiction, on the other hand, is
confirmed to a particular type of cases. Thus, the Small Caused Court has
special or exclusive jurisdiction in all rent matters.
8. Legal and equitable jurisdiction.
In the olden days, in England, legal jurisdiction was exercised by the Common
Law Courts, whereas equitable jurisdiction was exercised by Equity courts.
But in India there are no separate Equity Courts. All Courts are law courts
which administer the law of the land. However, in the absence of a specific
law on a given point, the law courts base their decision on equity, justice and
good conscience.
9. Domestic and foreign jurisdiction.
Domestic or municipal jurisdiction is jurisdiction exercised by the courts of
the country, Whereas foreign jurisdiction refers to jurisdiction exercised by a
court in a foreign country.
10.Expounding and expanding jurisdiction.
Expounding jurisdiction refers to the act of defining, clarifying and explaining
the jurisdiction possessed by a Court. The term, expanding jurisdiction, is used
when a court expands, enlarges or extends its jurisdiction. It is well accepted
that it is a court’s duty to expound its jurisdiction and that it is not proper on
its part to expand its jurisdiction.
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Case laws:-
In K.K. Velusamy v. N. Palaanisamy 2011 (11) SCC 275. the Supreme
Court of India held that Section 151 does not confer any special jurisdiction
on Civil Courts, but only provides for the exercise of discretionary power to
secure the ends of justice, in accordance with law. This means that a court
cannot pass any such order that may be prohibited under any law in order to
secure the ends of Justice. This would lead to the conclusion that such
equitable jurisdiction is subordinate to the authority of the courts to enforce
the law.
In Shiv Kumar Sharma v. Santosh Kumar 2007 (8) SCC 600. The Supreme
Court clearly held that while in England Courts of Equity possess Equitable
Jurisdiction, Courts in India do not have any such exclusive power. It further
held that Courts in India exercise jurisdiction in both equity and in law, but
the Equitable Jurisdiction is always subject to the provisions of law. Equitable
Jurisdiction, similar to Courts of Equity in England, can only be exercised
when no law operates in the field.
2. “Every civil suit must be instituted before a lowest civil court competent to
try that suit”. Discuss? (Apr 21) (Dec 19 Old) (Dec 21)
INTRODUCTION: Whenever there is a right, there is remedy (ubi jus ibi

remedium). The Indian legal system also adopts the same. In fact, right and
remedy are but the two sides of the same coin and they cannot be dissociated
from each other. Therefore, a litigant having grievance of a civil nature has a right
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to institute a civil suit in a competent civil court unless its cognizance is either
expressly or impliedly barred by any statute.
JURISDICTION: (SECTION-9)
Jurisdiction may be defined to be the power or authority of the court to
hear and determine a cause, to adjudicate and exercise any judicial power in
relation to it. Thus, jurisdiction of a court means the extent of the authority of a
court to administer justice prescribed with reference to the subject matter,
pecuniary value and local limits.
But however, the consent cannot confer nor take away jurisdiction of a
court. The defect of jurisdiction goes to the root of the matter and strikes at the
authority of the court to pass a decree. But if two or more courts have jurisdiction
to try a suit, it is open for the parties to select a particular forum and exclude the
other forums. Whenever the jurisdiction of the court is challenged, the court has
inherent jurisdiction to decide the said question.
KINDS OF JURISDCITION:
1. Territorial or local jurisdiction
2. Pecuniary jurisdiction
3. Jurisdiction as to subject matter
4. Original of appellate jurisdiction.
JURISDCITION OF CIVIL COURTS:
Under the Civil procedure code, a civil court has jurisdiction to try all suits of a
civil nature unless they are bared.
If a civil court has jurisdiction to try a suit two conditions have to fulfill:
 The suit must be a civil nature; and
 The cognizance of such a suit should not have been expressly or impliedly barred.
The suit must be a civil nature:
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 The word civil has not been defined in the code but, according to dictionary
meaning it pertains to private rights and remedies of a citizen as distinguished
from criminal, political, etc.
 The word nature has been defined as the fundamental qualities of a person or
thing; identity or essential character, sort, kind, character; hence it is wider in its
content.
 Thus the expression civil nature is wider than the expression civil proceedings.
 Thus, a suit is of civil nature if the principal question therein relates to the
determination of a civil right and enforcement thereof. It is not the status of the
parties to the suit, but the subject matter of it determines whether or not the suit
is one of a civil nature.
 A suit in which the principal question relates to caste or religion is not a suit of
civil nature. But if the principal question in the suit is of a civil nature and the
adjudication incidentally involves the determination relating to a caste question
or to religious rights and ceremonies, it does not cease to be a suit of civil nature
and jurisdiction of a civil court is not barred.
 The Explanation II has been added after the Amendment Act 1976. This
Explanation II Specifically provides that the suit relating to religious office is
maintainable whether or not it carries any fees or whether or not it is attached to
a particular place.
 Each word and expression casts an obligation on the court to exercise jurisdiction
for enforcement of right.
Case law
In the case of Kehar Singh and Nihal Singh Vs Custodian General, the court
held that the court embellished the concept of Civil proceeding. It was determined
as a grant of private rights to individuals.
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The cognizance of such a suit should not have been expressly or impliedly
barred:
 A litigant having a grievance of a civil nature has a right to institute a civil suit
unless its cognizance is barred expressly or impliedly.
 A suit is said to be expressly bared when it is barred by any enactment for the
time being in force.
 It is open to a competent legislature to bar jurisdiction of civil courts.
 But every presumption should be made in favour of the jurisdiction of a civil
court and the provision of exclusion of jurisdiction of a civil court, the court will
lean to an interpretation which would maintain the jurisdiction.
 But if the remedy provided by a statute is not adequate and all questions cannot
be decided by a special tribunal, the jurisdiction of the civil court is not barred.
 A suit is said to be impliedly barred when it is barred by general principles of
law.
 Where specific remedy is given by a statute, it thereby, deprives the person who
insists upon a remedy of any other form than that given by the statute.
 Similarly, certain suits though of civil nature are barred from the cognizance of a
civil court on the ground of public policy. Thus no suit shall lie for recovery of
costs incurred in criminal prosecution or for enforcement of right upon a contract
hit by section 23 of Indian Contract Act 1872.
Suits of civil nature
1. Suits relating to rights of worship, religious ceremonies etc.
2. Suits relating to accounts.
3. Suits relating to recovery of arrears of rent.
4. Suits relating to damages for a civil wrong.
5. Suits relating to the right to property.
6. Suits relating to specific relief.
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7. Suits relating to restitution of conjugal rights.

8. Suits for office.
9. Suits for declaration of title and possession.
10.Suits for the right to burial.
11.Suits for right to franchise.
Suits not of a Civil Nature.

1. Suit for possession by the landlord against the protected tenant.
2. Suits relating to the right to privacy.
3. Suit for recovery of voluntary offeing.
4. Suit involving questions relating to caste.
Case law
In the case of Kehar Singh and Nihal Singh Vs Custodian General, the court
held that the court embellished the concept of Civil proceeding. It was determined
as a grant of private rights to individuals.
In the case of Dhruv Green field Vs Hukam Singh, it was held by the court that
whenever a special statute or law provides for the exclusion of the civil courts to
entertain a suit then it should be construed strictly but in a case where a civil court
has the power to grant any relief to one of the parts of the suit then it has the
jurisdiction to entertain such suit.
Conclusion: Suit of civil nature in cases is triable by the Civil Court only as per
section 9 of the Civil Procedure Code, 1908. Therefore, the cases which are not
of civil nature are expressly and impliedly barred by this section and such cases
can be triable by the Tribunals or special courts.
3. Explain the doctrine of res subjudice (Dec 21 Old) 10 Marks

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OR
4. Res judicata.(Apr 21) 6 Marks
INTRODUCTION:
The phrase Res Sub judice is Latin maxim which means the “under judgment”.
The rule of the sub judice is based on the public policy which prohibits the
plaintiff to file two parallel cases on the same subject matter and restricts the
chances of having two contradictory judgments by the two courts. The purpose
of the doctrine of Res Sub judice is to prevent a multiplicity of the proceedings
and to refrain two conflicting decisions. The doctrine bars the parallel trial of the
suit where the matter is pending to adjudicate in the former suit. but it does not
restrict in filling the subsequent suit.
MEANING UNDER SECTION 10:
Section 10 reads as under:“ No court shall proceed with the trial of any suit
in which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties, or between parties under
whom they or any of them claim litigating under the same title where such suit is
pending in the same or any other court in India having jurisdiction to grant the
relief claimed, or in any court beyond the limits of India established or constituted
by the Central Government and having like jurisdiction, or before the Supreme
Court”.
OBJECT:
 It is to prevent the courts of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigations in respect of the
same cause of action, the same subject matter and the same relief.
 It obviates the possibility of two contradictory verdicts by one and the same
court in respect of the same relief.
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 It protects a person from multiplicity of proceedings and avoids conflict of

decisions.
 It aims to avert inconvenience to the parties and gives effect to the rule of res-
judicata.
CONDITIONS:
In order to attract this section, the following conditions needs to be satisfied:
1. There must be two suits, one previously instituted and other subsequently
instituted.
2. The matter in issue in the subsequent suit must be directly and substantially
in issue in the previous suit.
3. Both the suits must be between the same parties or their representatives.
4. The previously instituted suit must be pending in the same court in which the
subsequent suit is brought or in any other court in India or in any court beyond
the limits of India established or continued by the Central Government or
before the Supreme Court.
5. The court in which the previous suit is instituted must have jurisdiction to
grant the relief claimed in the subsequent suit.
6. Such parties must be litigating under the same title in both the suits.
Doctrine of Res-Subjudice is not applicable in the following instances:-

i. Suits pending in foreign court: If the previous suit is instituted in a foreign
court then it will not bar Indian Courts from trying subsequently instituted suit.
Foreign Court is defined in Section 2(5) of the Code. It means court situated
outside India and not established by the authority of the Central Government.
ii. Interim Order: Section 10 does not preclude the courts from passing interim
orders such as grant of injunction, appointment of receivers, etc
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Case laws:
In Sardar Bai Vs Mathari Bai (A.I.R. 2005, NOC 251, Madhya Pradesh) is a
quotable case on this point. In this case, there was a issue of completeness of title
due to adverse possession which was involved directly and substantially same
parties, in the earlier case. Again, the suit relating to title was brought. It was
considered prohibitory on the basis of doctrine of res judicata.
In R.P. Gupta Vs Shri Krishna Poddar (A.I.R. 1965, SC 316), the supreme
court has said that in the subsequent suit the issue involved was not that which
was involved in the earlier suit. Then, there the doctrine of res judicata will not
be applicable.
In State of Maharashtra Vs M/S National Construction Company (A.I.R.

1996, Sc 2364), the Supreme Court has decided that the doctrine of res judicata
will apply in a particular case only when;
i. the issues in the earlier case were also involved in the later case actually
and substantially;
ii. such issues have been deciding finally;
iii. such finalization was done by a competent court; and
iv. the parties have been given the opportunity of hearing before deciding the
case.
Thus for applicability of the doctrine of res judicata, all the above conditions must
be fulfilled.
CONCLUSION:
If a decree is passed in contravention of sectionn10 it is not a nullity and
therefore cannot be disregarded in execution proceedings. It is only the trial and
not the institution of the subsequent suit which is barred under this section.
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Hence, if the parties waive their right and expressly ask the court to proceed with
the subsequent suit, they cannot afterwards challenge the validity of the
proceedings.
5. Explain Doctrine of ‘Res judicata’. State the conditions for applicability of

the doctrine of Res judicata? (Apr 21) (Dec 20) (Dec 21) 10 Marks.
OR
6. Explain the doctrine of “Res-Judicata” (Oct 21) (June 22) 10 Marks
OR
7. Res judicata. (Apr 21) 6 Marks
Introduction
Recently, a bench of Supreme Court of India has made an observation
regarding the Doctrine of Res Judicata. The Court has held that this
doctrine would not be a ground for rejecting a plaint under Order VII Rule
11(d) of the Code of Civil Procedure. This has stirred an interesting
debate in the legal fraternity around the adjudication of plea of Res
Judicata, making it a significant topic to study with respect to the CPC.
Doctrine of Res Judicata Meaning
The doctrine of Res Judicata has been embodied in Section 11of the CPC.
This is a Latin term. It means “a thing/matter adjudged”. It indicates that
where a matter is already judged,no court will have the power to try any
fresh suit or issues
which has been already settled in the former suit between thesame parties.
Hence, when a competent body adjudicates upon an issue, involving the
same parties which were party to the previoussuit, cannot file another suit,
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asking the court to adjudicate upon the issue, which is similar to the issue
already adjudicated upon in the previous suit.
Spencer Bower was of the view that the doctrine of res judicatarefers to
the final judicial decision given by a judicial tribunal that has competent
jurisdiction over the cause or matter in litigation and over the parties thereto.
Res Judicata is simply the shorter version of the original maxim ‘Res
Judicata pro- Veritate Accipitur’. It means that a thing adjudged must be
taken as truth.
In the case of Lal Chand v Radha Krishnan[(1977) 2 S.C.C. 88
(India)], the Apex Court was of the view that once the final judgement is
pronounced, the judges who are confronted witha suit which identically
similar to the earlier judgement, wouldapply the doctrine of res judicata to
save the impact of the main judgment. This would ensure that multiplicity
of the judgement
Explanation 8 states that where a former court becomes incompetent to try
a subsequent suit due to incompetency totry it due to limitation pertaining
to its jurisdiction, the doctrine of Res judicata will be applied.
Essential Conditions of Section 11 of CPC
There are certain conditions for the applicability of the Doctrine of Res
Judicata under Section 11 of the CPC. The
following conditions must be met with to avail the plea of ResJudicata.
1. Both the suits must be between the same parties or theirrepresentative. If
the parties to both the suits are different there would lie no ground for the
application ofthe doctrine of Res Judicata. Both, the parties as well as
their privies will be bound by Res Judicata.
2. They should prosecute under the same title. This refers tothe capacity of
the party.
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3. The matter directly and substantially in issue in both thesuits must be

related or, the issue directly and substantially in issue in the ensuing suit
should likewise be directly and substantially in issue in the previous suit.
4. For the application of doctrine of Res Judicata, it is essential to ensure
that the matter in the former or previous suit was heard and decided.
Therefore, where the suit was dismissed because the plaintiff failed to
appear or on technical defect, or on the ground for misjoinder of parties,
etc., the doctrine of res judicata would not be applicable in the subsequent
suit.
5. The court that decided the previous suit has the competency to decide the
subsequent suit. This doctrine will be devoid of any significant bearing
where the orderwas passed without jurisdiction. The underlying principle
for this condition is that the court having limited jurisdiction cannot bind
a court to have larger jurisdictionby its decision.
Exceptions to the Doctrine of Res Judicata
There are certain exceptions to the doctrine of res judicata andthese are as
follows:
1. If the decree has been obtained by practicing misrepresentation or fraud
on the court, or where the proceedings had been taken all together under
a specialstatute.
2. Not every finding in the earlier judgment would operate as a res
judicata. Only an issue, which is ‘directly’ and ‘substantially’ decided
in the earlier
suit, would operate as res judicata.
3. Where the decision has not been given on merit, it would not operate, in
case, the appeal of the judgement and decree of the court below is
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pending in the appellate court,as then the judgement of the court below
cannot be held to be final, and the findings recorded therein would not
operate as res judicata.
4. When the judgment is non-speaking.
5. Where the matter has not been decided on merit earlier,the doctrine of
res judicata is not applicable.
6. The doctrine of Res Judicata does not apply to criminalcases, where the
entire proceedings have been initiatedillegally and without jurisdiction.
7. When a matter involves a pure question of law, the doctrine of res
judicata will not apply.
In cases of Dismissal in on default, thedoctrine of res judicata does not
apply.
Difference Between Res Sub Judice and Res Judicata The sections
dealing with Res Sub Judice and Res Judicata aresection 10 and section
11 respectively. The former is applicableto the proceedings pending in the
court, while the latter is applicable to matters already adjudicated upon.
The doctrine of Res Sub Judice bars two parallel suits between the same
parties, i.e., it bars the trial of a suit in which the matter is pending for
decision in the previous suit. One the other hand Doctrine of Res Judicata
stops the second trial of the same dispute between the same parties.
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Constructive Res Judicata

Constructive Res Judicata is referred to as an artificial form of resjudicata.
It can be said that it is reflected in Explanation IV of Section 11 of the
Civil Procedure Code. If a party fails to raise a plea in the previous suit
in spite of having an opportunity to do the same, then they are barred from
raisingthe same plea in the subsequent suit, as they may still be bound by
this doctrine.
Case Laws on Doctrine of Res Judicata
The following are a few case laws related to the Doctrine of ResJudicata:
n the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao, a suit
was filed in the Court for the purpose of declaring certain temples public temples
and for setting aside alienation of endowed property by the manager thereof. A
similar suit was dismissed by the Court two years ago and the plaintiffs here
contended that it was the gross negligence on the part of the plaintiffs (of the
previous suit) and hence the doctrine of Res Judicata should not be applied. But,
the Privy Council said that finding of a gross negligence by the trial court was far
from a finding of intentional suppression of the documents, which would amount,
to want of bona fide or collusion on the part of the plaintiffs in prior suit. There
being no evidence in the suit establishing either want of bona fide of collusion on
the part of plaintiffsas res judicata.
State of Karnataka v. All India Manufacturers Organisation &Ors., AIR

2006 SC 1846
In this case, it was held that the doctrine of Res Judicata would be
applicable to a Public Interest Litigation, provided the earlier case was a
genuine and a bona fide litigation as the judgement in the earlier case
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would be a judgement in rem.
In the case of Rural Litigation And Entitlement Kendra vs. State of Uttar
Pradesh, it was held that the writ petitions filed in the Supreme Court are not
inter-party disputes and have been raised by way of public interest litigation and
the controversy before the court is as to whether for social safety and for creating
a hazardless environment for the people to live in, mining in the area must be
permitted or stopped. Even if it is said that there was a final order, in a dispute of
this type it would be difficult to entertain the plea of Res Judicata.
Conclusion
While discussing the doctrine of Res Judicata, it is essential to realize that
the main objective behind this doctrine is to prevent multiplicity of suits, to
ensure the court’s resources are not being misused or wasted, to prevent
injustice by ensuring that there is no unnecessary recovery of damages twice
for the same matter. Perpetual litigation would do no good to society at large.
The Doctrine of Res Judicata must be applied mindfully. We must realize
that this doctrine has a very wide scope and the application of which is
constantly changing and evolving.
8. Discuss the provision of CPC in respect of place of suing. (Dec

19)(Mar 21Old)(June 22)
INTRODUCTION
The expression ‘place of suing’ signifies the venue for the trial. 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. Provisions for the immovable
property have been spread over Sections 16 to 18 of the CPC. Section 19
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specifically applies to suits for compensation for wrongs to persons or

movable property. Section 21 of the Code recognizes the well-established
principle that defects as to territorial or pecuniary jurisdiction can be waived.
A substantive suit for setting aside a decree passed by a court on the ground
of want of territorial jurisdiction is expressly barred by Section 21-A of the
Code.
Pecuniary Jurisdiction: Sec.15

Every suit shall be instituted in the Court of the lowest grade competent
to try it. This section states that a suit should be filed in the lowest civil court
that is empowered to try matters of the specific pecuniary value. Pecuniary
jurisdiction of the court divides the court on a vertical basis. The valuation to
decide on jurisdiction for filing a suit is generally done by the plaintiff,
however, if the valuation of the plaintiff is prima facie incorrect, then the
court valuates and directs the party to approach the right forum.
Territorial Jurisdiction: Sec.16-20
Territorial Jurisdiction divides jurisdiction of courts on a horizontal
basis. All courts that have power to take cognizance of a case have the same
powers and no court is considered above the other. Territorial jurisdiction in
CPC is further divided into-
1. Suits related to immovable property (Section 16 to 18)
2. Suits related to Movable property (Section 19)
3. Other suits (Section 20)
Immovable Property: Sec- 16-18
Sections 16-
This Section states that when a suit is filed regarding relief or
compensation for wrong caused to an immovable property that is held by the
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defendant or any other person on the behalf of the defendant where the relief
can be obtained through his personal attendance then suits may be instituted
in a court within whose local jurisdiction of either where the property is
located or where the defendant resides or carries out business.
Section 17-
According to this Section, when an immovable property falls under the
jurisdiction of two or more courts, then it is up to the discretion of the plaintiff
to decide which court to file the suit at. When a property shares the
jurisdiction of multiple courts, the plaintiff can choose as per their
convenience. E.g.-If a dispute relating to an immovable property spread over
Bangalore and Ramanagara arises, then the Plaintiff can file a suit in the court
of either Bangalore or Ramanagara, both courts have valid jurisdiction.
Section 18-
This section states that when the local limits of the jurisdiction of courts
is uncertain, and any of the courts is satisfied that there is a ground of
uncertainty, then such court can record the statement and proceed with
hearing the case and passing a final decree. The decree passed by such court
will have the same effect as if the property was situated within the local limits
of the jurisdiction of the said court.
In case the court taking cognizance of the case does not record the
statement and an objection is raised before the Appellate or Revisional Court,
the Appellate or Revisional court shall not allow the objections unless it is
satisfied that at the time of institution of the suit there was no reasonable
ground for uncertainty as regards to jurisdiction of Court and there has been
a failure of justice.
Movable Property– Section 19
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When the suit filed is regarding a movable property, then the

jurisdiction for filing such suit shall be in the court under whose local limits
the right was violated or where the defendant resides or carries on business.
It is the discretion of the plaintiff to decide which of the above jurisdiction to
invoke. E.g.- If the issue relating to the movable property arises in Bangalore
and the defendant is a resident of Mumbai, then the plaintiff has the option of
either filing the suit in Bangalore or Mumbai.
Other Suits- Section 20
Civil suits under the purview of CPC that aren’t related to property,
both movable and immovable, come under the ambit of this section. This
includes matters such as breach of contract or commercial transactions. When
a suit is filed under this section, the jurisdiction for filing such suit shall be in
the court under whose local limits the right was violated or where the
defendant resides or carries on business. It is the discretion of the plaintiff to
decide which of the above jurisdiction to invoke
Objections as to Jurisdiction: S.21
This section states that a judgment passed by a court with no
jurisdiction is an irregular judgment. The objection regarding judgment is to
be brought by the parties in the instance itself. If the error in the jurisdiction
is related to the subject matter and irrespective of whether it is objected before
the court in the first instance or not, the judgment can be considered null and
void, and such an issue can be raised in an appellate or revisional level as
well. However, if the error in jurisdiction arises because of a pecuniary or
territorial error and is not brought before the court in the first instance, the
judgment is held to be irregular but no objection relating to jurisdiction can
be raised in an appellate or revisional stage.
Conclusion
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Jurisdiction plays an important role in the justice system. Approaching

the right court with an appropriate jurisdiction is the first step to justice. A
plaintiff must hence keep in mind the importance of approaching the right
forum. A defendant must always check for a fault in the jurisdiction as it
would greatly affect the case. Jurisdiction plays a major role especially at
times of appeal and revision.
9. State the rules regarding ‘Transfer of suits’ (Apr 21)

Introduction: -
As a general rule, a plaintiff as a right to choose his own forum where a
suit can be filed in more than one court, normally, this right of the plaintiff cannot
be curtailed, controlled or interfered with. But the said right is controlled by the
power vested in superior courts to transfer a case pending in one inferior court to
another or to recall the case to itself for hearing and disposal.
Section 22 to Section 25 deals with the provisions of transfer of suit or appeal
which are as under
Transfer of Suit:
According to Section 22 of the Civil Procedure Code 1908, where a suit may be
instituted in any one of two or more Courts and is instituted in one of such court,
any defendant, after notice to the other parties, may, at the earliest possible
opportunity and in all cases where issues are settled at or before such settlement,
apply to have the suit transferred to another Court, and the Court to which such
application is made, after considering the objections of the parties, shall
determine in which of the several Courts having jurisdiction the suit shall
proceed.
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When a suit has been instituted by a plaintiff in one civil of his choice, there may
be two choices available to the defendant: either to file his written statement, i.e.
accepting the jurisdiction of the court or to file application for transfer of the suit.
Section 22 and 23 of CPC confers power of the civil court to transfer suits from
one civil court to another on the application of the defendant. Section 22 is the
substantive section which confers upon the civil court the power. Section 23
specifies the appropriate court for this purpose.
Section 23- To what court application lies:
1.Where the several Courts having jurisdiction are subordinate to the same
appellate Court, an application under section 22 shall be made to the Appellate
Court.
2.Where such Courts are subordinate to different Appellate Courts but to the
same High Court, the application shall be made tot he said High Court.
3.Where such courts are subordinate to different High Courts, the application
shall be made the High Court within the local limits of whose jurisdiction the
Court in which the suit is brought is situate.
Section 24- General power of transfer and withdrawal:
1.on the application of any of the parties and after notice to the parties and after
hearing such of them as desired to be heard, or of its own motion without such
notice, the High Court or the district Court may at any stage-7(a) transfer any
suit, appeal or other proceeding pending before it for trial or disposal to any Court
subordinate to it and competent to try or dispose of the same, or (b) withdraw any
suit, appeal or other proceeding pending in any Court subordinate to it, and
a. try or dispose of the same; or
b. transfer the same for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same;
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c. Retransfer the same for trial or disposal to the Court from which it was
withdrawn
d. Where any suit or proceeding has been transferred or withdrawn under sub-
section (1), the Court which, may subject to any special directions in the case of
nay order of transfer, either retry it or proceed from the point at which it was
transferred or withdrawn.
Section 25- Power of Supreme Court to transfer suits, etc :
1.On the application of a party, and after notice to the parties, and after hearing
such of them as desire to be heard, the Supreme Court may, at any stage, if
satisfied that an order under this section is expedient for the ends of justice, direct
that any suit, appeal or other proceeding be transferred from a High Court or other
Civil Court in one State to a High Court or other Civil Court in any other State.
2.Every application under this section shall be made by a motion which shall be
supported by an affidavit.
3.The Court to which such suit, appeal or other proceeding is transferred shall,
subject to any special directions in the order of transfer, either retry it or proceed
from the stage at which it was transferred to it.
4.In dismissing any application under this section, the Supreme Court may, if it
is of opinion that the application was frivolous or vexatious, order the applicant
to pay by way of compensation to any person who has opposed the application
such sum, not exceeding two thousand rupees, as it considers appropriate in the
circumstances of the case.
5.The law applicable to any suit or other proceeding transferred under this section
shall be the law which the Court in which the suit, appeal or other proceeding
was originally instituted ought to have applied to such suit, appeal or proceeding.
23
Suo Motu Transfer:- over and above an application by a party to the suit, appeal
or other proceeding, a High Court or a District Court has power to transfer a suit,
appeal or other proceeding even suo moru.
Application for transfer after hearing: - It is no doubt, true that an application
for a transfer can be made “at any stage”. At the same time, however, as the
discretionary power of a suit, appeal or other proceedings requires to be exercised
in the interest of justice, the court may refuse such prayer if it is made mala fide
or with or with a view to obviate an adverse decision after the hearing is over.
MANEKA SANJAY GANDHI V. RANI JETHMALANI
It is submitted that the following observation of Krishna Iyer, J. in the
leading above case, “assurance of a fair trial is the first imperative of the
dispensation of justice and the criterion for the court to consider when a motion
for transfer is made is not the hypersensitivity or relative convenience of a party
or easy availability of legal service or like mini-grievances. Something more
substantial, more compelling, more imperilling, from the point of view of public
justice and its attendant environment, is necessitous if the court is to exercise its
power of transfer. This is the cardinal principle although the circumstances may
be myriad and vary from case to case.
Conclusion: - As discussed above, the power of transfer must be exercised with
extreme caution and circumspection and in the interest of justice.
10. Foreign judgement. (Dec 21) (Apr 21) 6 Marks
1. Introduction
Section 2(6) of the Code of Civil Procedure, 1908 (CPC) defines a
foreign judgement as a judgement of a foreign court. A foreign court is
defined by Section 2(5) of the CPC as a court situated outside India and
24
not established or continued by the authority of the Central Government.

CPC dictates the procedure for the enforcement of foreign judgements in
India and requires the judgement or decree passed by the foreign court
to be conclusive in nature and it should have been decided on the merits
of the case by a court of competent jurisdiction. Section 13 of the CPC
underlies the principle of res judicata and any judgement passed by a
foreign court can be enforced in India and will act as res judicata
between the subject parties.
Foreign Judgements: Meaning

A foreign judgement is conclusive as to any matter directly
adjudicated upon thereby but it does not include the reasons for the
judgement given by the foreign court. What is conclusive under Section 13
is the judgement and not the reasons.
Section 13 enacts a branch of Rule of Res Judicata in its relations to

foreign judgement but not every foreign judgement is made conclusivein
the Indian Courts by Section 13.
The word matter in Section 13 is not equivalent to subject-matter rather

it means the right claim. Similar to Res Judicata it is founded upon
principle of sanctity of judgement competently rendered with some
differences like where Res Judicata talks of adjudicated matter and ought
to be adjudicated matter i.e. constructive res judicata but foreign
judgement talks of directly adjudicated matter not ought to be adjudicated
matter. Obviously, competency of foreign judgement has to certify the
dual test of competence of the laws where it is i.e. foreign territory and
also in International Law.
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Object:
The object behind this provision is to give respect to the judgement
of competent foreign court and a legal obligation arises to satisfy the
claim. In Private International Law, certain rules are regarded as
common to civilized nations. This recognition is accorded on the rules of
justice, equity and good conscience.
Binding Nature of Foreign Judgements

Section 13 of the CPC clearly says that a foreign judgment shall
be conclusive/ binding as to any matter which has been directly
adjudicated upon between the parties except under certain circumstances
which have been specified in this section.
In D. Viswanathan v. Rukun ul Mulk Sayed Abdul [AIR 1963 SC

1], the Supreme Court held that while considering whether a judgement
of a foreign court is conclusive, the courts in India will not require to go
into the merits of the claim and it shall be conclusive as to any matter
directly adjudicated between such parties subject to exceptions
enumerated under Section 13, clause (a) to (f).
Foreign courts would have jurisdiction in the following

circumstances:
 Where a person is the subject of the foreign country in which the
judgement has been obtained;
 Where he was a resident in the foreign country when the action
was commenced and the summons was served on him;
 Where the person in the character of the plaintiff selects the
foreign court as the forum for taking action in which forum he
issued later;
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 Where the party on summons voluntarily appeared; and

 Where by an agreement, a person has contracted to submit himself
to the forum in which the judgement is obtained.
Conclusiveness of Foreign Judgement is binding or competent

A foreign court has jurisdiction to give judgement in rem provided
subject matter is within (Movable/ Immovable) that country but if it is not
so then the court will not be considered competent.
In an action in person of foreign courts have jurisdiction in following cases:
(1) If at the time of commencement of action defendant was

resident or present in that country.
(2) Where defendant at the time of judgement subject or citizen
of such country.
(3) Where the parties objecting a jurisdiction by his own
conduct submit to such jurisdiction [Also in International
Law].
Foreign Judgement not on Merits

A judgement is on merits when decision is given after taking evidence and
after applying mind on truth or falsity of facts as well as the contention
of the parties. Decision which was passed on default of part of defendant
without trial on evidence was held not on merits.
Foreign Judgements When Not Binding
Section 13 of the Code holds a foreign judgement to be conclusive except

under the six circumstances which have been specified in this section.
i. Foreign Judgement has not been pronounced by a Court of

competent jurisdiction:
For a judgement passed by a foreign court to be conclusive and
27
binding, the dispute between the parties must be adjudicated by a Court

of competent jurisdiction. It is a basic principle of law that a judgement
passed or any matter thereby adjudicated upon by a court which has no
jurisdiction is null and void.
ii. Foreign Judgement has not been given on the merits of the
case:
As it has been stated earlier, a foreign judgement creates res judicata
between the parties to a claim. However, for res judicata to apply, the
judgement by the foreign court must have been given on the merits of the
case. A case is said to be decided on the merits when the judgetakes all the
evidence into consideration in the absence of any technical or emotional bias
and decides what is right or wrong after thorough examination of the case.
Thus, the dismissal of a suit owing to the non-appearance of the plaintiff or
when a decree has been passed owing to the default of the defendant in
furnishing security, such judgements are not on merits.However, it needs to
be noted that a decree being ex parte does not necessarily mean that it was
not on merits.
iii. Foreign Judgement against International or Indian Law:

When a judgement passed by a foreign court is based upon an incorrect
legal view or in defiance of Indian laws where such laws are
applicable, it is not conclusive and the matter adjudicated therein is not
enforceable in India. Thus, when a suit is filed in England for the
breach of a contract formed in India and the English Court wrongfully
applies English law, it is to be noted that this situation is covered by
the clause being discussed as it is a fundamental principle of private
international law that the rights and liabilities of the parties to a
contract are determined by the place of contract [Gurudayal Singh v.
Rajah of Faridkota, ILR (1895) 22 Cal. 222 (PC)]
iv. Foreign Judgement opposed to natural justice:
28
Clause (d) of Section 13 requires the judgement passed by a foreign

court to be in observance of proper judicial procedure. Any judgement
or decree passed in ignorance or violation of the principles of nature
justice is null and void. Thus, when parties to the dispute are not given
reasonable notice or when a party is not given equal opportunity to
present its case or when the authorities involved do not act in good faith
or impartial/unbiased manner, such a judgement is not conclusive as it
violates the basic requirements of the principle of natural justice
v. Where it has been obtained by fraud:

It is a fundamental principle of law that a judgement obtained by fraud
is not conclusive, Irrespective of whether it was passed by a domestic
court or a foreign court. Although it is not possible to show that the court
was ‘mistaken’, it can however be proven that the court was ‘misled’. In
other words, a foreign judgement cannot be set aside on the ground that it
was wrongly decided but the clause allows the judgement to be set aside
on the ground that the court was tricked into the judgement. Also, it is
well established principle of Private International Law that if a foreign
judgement is obtained by fraud, it will not operate as res judicata
because fraud and justice not dwell together.
vi. Foreign Judgement founded on breach of Indian Law:

A foreign judgement in breach of the laws in force in India is not
conclusive and it considered being null and void. The objective of this
clause is to ensure that no foreign law can offend the public policy of our
country. Thus, a decree for divorce which has been passed in a foreign
court cannot be enforced in India if Indian law does not approve of such
divorce. The rules of private international law cannot be adopted blindly
29
and mechanically and every case must be decided in accordance with

Indian law and foreign law must not offend our publicpolicy.
Presumption as to Foreign Judgement

Section 14 of the Code declares that the Court shall presume upon the
production of any document purporting to be a certified copy of a foreign
judgement that such judgement was pronounced by a court of competent
jurisdiction unless contrary is proved. Such presumption may be displaced
by proving want of jurisdiction
Enforcement of Foreign Judgements

A foreign judgement which is conclusive under Section 13 can be
enforced in India in the following ways:
1. Suit on foreign judgement:
A foreign judgement may be enforced by instituting a suit on such
foreign judgement. In such suit, the court cannot go into the merits of
the original claim and it shall be conclusive as to any matter directly
adjudicated upon between the same parties. Such a suit must be filed
within a period of 3 years from the date of judgement.
2. Execution Proceedings:
A foreign judgement may also be enforced by proceedings in execution
in certain specific circumstances mentioned in Section 44A of the Code
which provides that when a certified copy of a decree from any of the
superior courts of any reciprocating territory is filed in a District Court, it
shall be executed in India. It is open to the defendantto file any objections
open to him/her under Section 13 of the Act when the foreign judgement
is sought to be enforced under Section 44A. It is to be noted that the
judgement must comply with all the conditions specified under Section
13.
Ex parte foreign decree whether enforceable or not.
Even though a decree has been passed ex parte it will be binding if evidence
30
was taken and decision was given on consideration of evidence. The real test
is not
whether decision was or was not ex parte but whether it was merely formerly
passed as a matter of course or by way of penalty or it was based upon a
consideration of the truth or otherwise of plaintiff’s claim.
1. Sri Ramesh has instituted a suit against his wife Aruna in the civil court at
Dharawad. Aruna is residing at Kalaburagi with her parents. She has no income
of her own and hence, she is finding it difficult to travel to Dharawad frequently
to attend the proceedings. Advise her. (June 22)
UNIT II
1. State the provisions of CPC relating to joinder of parties. What is the effect
of non-joinder of necessary parties? (Apr 21)(Apr 21A)(Dec 21)
The civil cases, start with the institution of the case by one party against
the another party and the competent court decides the rights and liabilities of the
parties. Order 1 of the Code of Civil Procedure, 1908 deals with the the parties
to the suit and also contains provisions for addition, deletion and substitution of
parties, joinder, non-joinder and misjoinder of parties and objections to
misjoinder and non-joinder.
UNDERSTANDING “JOINDER” AND “MISJOINDER”
There is persistent anxiety while filing a civil suit as if all the parties to the
suit are taken into consideration for an account or not. Additionally, if any
party(s) are missing, they can be taken into consideration also and can be added
or joined later in a suit as another issue, provided, the CPC has any provision to
remedy to add party(s) to the suit by the procedure of “joinder” and the remaining
31
pertains to the discretion of the Honorable Court under Order1- rule 2 and rule 3
read with Order 2 rule 3 and rule 4 of the CPC.
Joinder of Plaintiffs:
Anybody or anyone may join in one suit as plaintiffs as per the required
conditions under Rule 1 of Order 1. These conditions that are necessary to be
consummated are the right to relief claiming to exist in each of the plaintiffs that
come out of the same act of transaction; and the case is such of a character that,
if such person got separate suits, any common question of law or question of fact
may arise.
Joinder of Defendants:
Just the opposite to the joinder of plaintiffs, that, a persona can join as a
defendant as per the provisions of Rule 3 of Order 1. The conditions that are
necessary to be satisfied in the case of a defendant is the right to relief claiming
to exist against them comes out of the same act of transaction; and the case is of
such a nature that, if separate suits are brought against such a person, any
common question of law or question of fact may arise.
THE NECESSARY PARTIES TO A CIVIL SUIT
A necessary party is that party without whom a claim or allegation cannot

be settled by the Honorable Court legally. In layman’s terms, in the absence of a
“necessary party”, no efficacious and absolute decree can be passed by the Court.
In Benaras Bank v. Bhagawan Das Ltd. [A.I.R. 1947 All. 18], the Honorable
Bench of the High Court of Allahabad specified two tests that would determine
the questions about whether a specific party is a necessary party to a proceeding.
The tests are as follows:
32
 A right of relief has to be present against such a party with regard to the
matters involved in the suit.
 In the absence of such a party, the court must not be in a position to pass
an efficacious decree.
Nonetheless, the aforementioned tests, as provided by the Honorable
Bench of Allahabad High Court were explained as true tests by the
Honorable Supreme Court of India in Deputy Commissioner, Hardoi v.
Rama Krishna.
MISJOINDER OF PARTIES
The joinder or incorporation of any person as a party to a suit, opposite to
the provisions of the Code is known to be a misjoinder. Grounds for a court
ruling that there is a misjoinder incorporate that:
 The parties to the suit do not have the same rights to a judgment.
 They have a conflict of interests.
 The situations in each allegation must be unique or contradictory.
 Even to a bit, the defendants are not involved in the same transaction. In
the case of a criminal prosecution, the most usual cause for misjoinder is
the defendants are found to be involved in various claimed crimes or the
charges are based on separate unique transactions.
However, a misjoinder may be a misjoinder of plaintiffs or a misjoinder of
the cause of action.
MISJOINDER OF PARTIES
The joinder or incorporation of any person as a party to a suit, opposite to the

provisions of the Code is known to be a misjoinder. Grounds for a court ruling
that there is a misjoinder incorporate that:
 The parties to the suit do not have the same rights to a judgment.
33
 They have a conflict of interests.

 The situations in each allegation must be unique or contradictory.
 Even for a bit, the defendants are not involved in the same transaction. In
the case of a criminal prosecution, the most usual cause for misjoinder is
the defendants are found to be involved in various claimed crimes or the
charges are based on separate unique transactions.
However, a misjoinder may be a misjoinder of plaintiffs or a misjoinder of a

cause of action.
Misjoinder of Plaintiffs
Where two or more persons may have joined as Plaintiffs in one suit but
the Right to Relied claimed to exist in each plaintiff, does NOT come out of the
same act or same transaction (or series) and if separate suits were brought by each
of the plaintiff, no common question of fact or question of law may have arisen,
there shall be a misjoinder of plaintiff.
Misjoinder of Defendants
In a similar way, where two or more persons may have joined as

Defendants in one suit but the Right to Relied claimed to exist in each defendant,
does NOT come out of the same act or same transaction (or series) and if separate
suits were brought by each of the defendant, no common question of fact or
question of law may have arisen, there shall be a misjoinder of defendant.
Misjoinder of Cause of Action
This aspect may be coexisting with misjoinder of plaintiffs or misjoinder of

defendants. Hence, the subject may be considered pertaining to the following
heads.
Misjoinder of Plaintiffs and Cause of Action
34
Where there are two or more plaintiffs in a suit and two or more causes of
action, the plaintiffs shall be interested jointly in all the causes of action. If not,
the case is one of misjoinder of plaintiffs and cause of action.
Misjoinder of Defendants and Cause of Action: Multifariousness
Where there are two or more defendants in a suit and two or more causes
of action, the suit will be bad for misjoinder of defendants and causes of action,
nonetheless, if unique causes of action are joined against different defendants
separately, such a misjoinder is technically called multifariousness or assortment.
DIFFERENCE BETWEEN MISJOINDER AND NON JOINDER OF
NON-JOINDER
MISJOINDER
When a party is necessary to the suit

When a party was added to the suit by and he was not added to the suit, he is
mistake, it is misjoinder. non-joinder.
No probability of dismissal as it won’t There are probabilities of dismissing

be of any use to the interest of the the suit with regards to the decree of
parties. the order.
2. Explain the different modes of service of Summons. (Oct 21)(March 21)(Old

Apr 21)
OR
3. Substitute service. (June 22) 6 Marks
Meaning: -
When the plaintiff files a suit, the defendant has to be informed that the
suit has been filed against him, and that he is required to appear in the court to
35
defend it. The intimation which is sent to the defendant by the court is technically
known as “summons”. Though the said expression has not been defined in the
code, according to the dictionary meaning. “A summons is a document issued
from the office of a court of justice, calling upon the person to whom it is directed
to attend before a judge or officer of the court for a certain purpose”.
Mode of Service of Summons. Rules 9-30
The service of summons is of primary importance as it is a fundamental

rule of the law of procedure that a party must have a fair and reasonable notice
of the legal proceedings initiated against him so that he can defend himself. The
code prescribes five principle mode of serving a summons to a defendant.
i) Personal or direct service.

ii) Service by court.
iii) Service by plaintiff.
iv) Substituted service.
v) Service by post.
Personal or direct service: - Rule 10 to 16 and 18deal with personal or direct

service of summons upon the defendant. This is an ordinary mode of service of
summons. Here the following principles must be remembered.
a) Wherever it is practicable, the summons must be served to the defendant
in person or to his authorized agent.
b) Where the defendant is absent from his residence at the time of service of
summons and there is no likelihood of him being found at his residence within a
reasonable time and he has no authorised agent, the summons may be served on
any adult male or female member of the defendant’s family residing with him. A
servant cannot be said to be a family member.
36
c) In a suit relating to any business or work agent a person, not residing within
the territorial jurisdiction of the court issuing the summons, it may be served to
the manger or agent carrying on such business or work.
d) In a suit for immovable property, if the service of summons cannot be made
on the defendant personally and the defendant has no authorised agent, the
service may be made on any agent of the defendant in charge of property.
e) Where there are two or more defendants, service of summons should be
made on each defendant.
Service by Court- Rule 9
Summons to defendant residing within the jurisdiction of the court shall be
served through court officer or approved courier service. Summons can also be
served by register post, courier service, fax, e-mail or by any other permissible
means of transmission. Where the defendant is residing outside the jurisdiction
of the court, the summons shall be served through the officer of the court within
whose jurisdiction the defendant resides. The court shall treat refuse of
acceptance as a valid service. Where summons is properly addressed, prepaid and
duly sent by registered post acknowledgment due (RPAD) there will be a
presumption of a valid service of summons even in the absence of an
acknowledgment slip.
Service by plaintiff- Rule-9A
The court may also permit service of summons by the plaintiff in addition
to service of summons by the court.
Substituted service- Rule 17, 19-20
“Substituted service” means the service of summons by a mode which is
substituted for the ordinary mode of service of summons. There are two modes
of substituted service. They are:
Where the defendant or his agent refuses to sign the acknowledgment, or
where the serving officer, after due and reasonable diligence, cannot find the
37
defendant who is absent from his residence at the time of service of summons
and there is no authorised agent nor any person on whom service can be made,
the service of summons can be made by affixing a copy on the outer door or some
other part of the house in which the defendant ordinarily resides or carries on
business or personally works for gain.
Where the court is satisfied that there is reason to believe that the defendant
avoids service for any other reason the summons cannot be served in ordinary
way, the service may be effected in the following manner-
By affixing a copy of the summons in some conspicuous place in the
courthouse, and also upon some conspicuous part of the house in which the
defendant is known to have last resided, carried on business for personally
worked for gain, or in such manner as the court thinks fit.
Where the court can orders service by an advertisement in a news paper,
the newspaper should be a daily newspaper circulating in the locality in which
the defendant is last known to have actually or voluntarily resided, carried on
business or personally worked for gain.
Service by Post:-
When an acknowledgement purporting to be signed by the defendant or his
agent is received by the court, or the defendant or his agent refused to take
delivery of summons when tendered to him, the court issuing the summons shall
declare that the summons had been duly served on the defendant. The same
principle applies in a case where the summons was properly addressed, prepaid
and duly sent by registered post, acknowledgment due, and the acknowledgment
is lost or not received by the court within thirty days from the date of issue of the
summons. Where the summons sent by registered post is returned with an
endorsement “refused”, the burden is on the defendant to prove that the
endorsement is false.
38
Conclusion: - These are the five method of serving the summons to the
defendants and it will be done one after one initially the court will send summons
through post if it fails to serve the summons to the defendant then the remaining
method will be adopted one after one by the plaintiff through the court.
4. Explain the fundamental rules of pleadings. When the amendment

of pleadings is permissible? (Apr 21) (Dec 21)
Introduction: Pleading is the foundation of litigation. Pleading has been dealt

with in Order 6 of the Civil Procedure Code. Order 6 Rule 1 of CPC defines
pleadings as plaint or written statement. The word ‘plaint’ is undefined in the
code. However, it can be said to be the statement of claim – a document that
contains the material fact by the presentation of which a suit is instituted in the
court of law.
Objects of Pleading
Here are four objectives of pleading:
1. Pleadings ascertain the actual issues between the parties.
2. Pleadings state the issues to avoid surprise to the other party.
3. Pleadings narrow down the area of conflict.
4. Pleadings state the facts which need to be proved at the trial.
In ‘Virendra Kashinath vs Vinayak N. Joshi‘, the Supreme Court stated, “the
object of the rule is twofold: First is to afford the other side intimidation
regarding the particular facts of his case so that they may be met by the other
side. Second is to enable the court to determine what is really the issue between
the parties.”
Importance of Pleading
The fate of the suit lies on the pleading as;
1. Pleading determines the burden of proof.
39
2. It aids the court in the final decision of the case.

3. Pleading enables the court to decide the right of the parties in the trial.
4. Pleading enables the opposite party to know the case.
Basic rules of Pleading
Basic rules of pleadings are given in Order 6 Rule 2 of the Civil Procedure
Code, 1908. They are as follows:
1. Pleading should state the facts.
2. The fact should be material facts.
3. Pleading should not state the evidence.
4. The facts stated in the pleading should be in a concise form.
Let us learn more about these four points in detail.
1. Pleading should state the facts.
The first rule of pleading states that the pleading should state the facts and only
facts and not the law. Question of fact must be pleaded, i.e. the existence of any
custom or usage, intention, waiver or negligence must be pleaded.
2. The fact should be material facts.
The second rule of pleading is that the facts stated should be material facts only
and not the particulars. Material facts are the basic facts.
In ‘Virendra Nath vs Satpal Singh‘, the Supreme Court stated, “the phrase
‘material’ fact may be said to be those facts upon which a party relies for his
claim or defence. In other words, ‘material facts’ are facts upon which the
plaintiff’s cause of action or the defendant’s defence defends.” Whether a fact is
a material fact or not differs from case to case and depends on the
circumstances of the case.
3. Pleading should not state the evidence
The third rule of pleading is that the pleading should not state the evidence with
which the material facts are to be proved. Facts are of two types:
40
(i) Facta probanda: the facts which need to be proved.

(ii) Facta probantia: the fact through which material facts are proved.
Facta probanda should be pleaded in the pleadings and not the facta probantia.
4. The facts stated in the pleading should be in a concise form.
The last fundamental rule of pleading is that the pleading should be in a concise
form. Unnecessary and irrelevant details should not be added to the pleading.
Instead, pleading should be precise, clear and specific.
Particular or Other Rules of Pleadings:- Besides the fundamental or basic rules

of pleadings, there are other or particular rules of pleadings which are as follows:-
(Rule 4 to 16)
(1) Wherever misrepresentation, fraud, breach of trust, wilful default or undue
influence are pleaded in the pleadings, particulars with dates and items should
be stated.
(2) The performance of a condition precedent need not be pleaded since it is
implied in the pleadings. Non-performance of a condition precedent, however,
must be specifically and expressly pleaded.
(3) Generally departure from pleading is not permissible, and except by way of
amendment, no party can raise any ground of claim or contain any allegation of
fact inconsistent with his previous pleadings.
(4) A bare denial of a contract by the opposite party will be construed only as a
denial of factum of a contract and not the legality, validity or enforceability of
such contract.
(5) Documents need not be set out at length in the pleadings unless the words
therein are material.
(6) Wherever malice, fraudulent intention, knowledge or other condition of the
mind of a person is material, it may be alleged in the pleading only as a fact
41
without setting out the circumstances from which it is to be inferred.Such

circumstances really constitute evidence in proof of material facts.
(7) Whenever giving of notice to any person is necessary or a condition
precedent, pleadings should only state regarding giving of such notice, without
setting out the form or precise term of such notice or the circumstances from
which it is to be inferred, unless they are material.
(8) Implied contracts or relations between persons may be alleged as a fact, and
the series of letters, conversations and the circumstances from which they are to
be inferred should be pleaded generally.
(9) Facts which the law presumes in favour of a party or as to which the burden
of proof lies upon the other side need not be pleaded.
(10) Every pleading should be signed by the party or one of the parties or by his
pleader.
(11) A party to the suit should supply his address. He should also supply
address of the opposite party.
(12) Every pleading should be verified on affidavit by the party or by one of the
parties or by a person acquainted with the facts of the case.
(13) A Court may order striking out a pleading if it is unnecessary, scandalous,
frivolous, vexatious or tends to prejudice, embarrass or delay fair trial of the
suit.
(14) A Court may allow amendment of pleadings.
(15) Forms in Appendix A of the Code should be used wherever they are
applicable. Where they are not applicable, forms of like nature should be used.
(16) Every pleading should be divided into paragraphs, numbered
consecutively. Each allegation or averment should be stated in a separate
paragraph. Dates, totals and numbers should be written in figures as well as in
words.
42
Amendment of Pleadings:-Amendment is the formal revision or addition or

alteration or modification of the pleadings. Provisions for the amendment of
pleadings are intended for promoting the ends of justice and not for defeating
them. Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deals with
provisions regarding amendment of pleadings and failure to amend after order
respectively. Rule 17 of the Code of Civil Procedure, 1908 provides that, “The
Court may at any stage of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose of determining
the real questions in controversy between the parties.
Amendment of pleadings when granted:- Amendment of pleadings can be
granted by the Court in two situations namely, (i) where the amendment is
necessary for the determination of the real question in controversy; and (ii) can
the amendment be allowed without injustice to the other side.
Amendment of pleadings when refused:- Amendment of pleadings can be
refused in many circumstances. Following are the situations or circumstances
when amendment of pleadings can be refused by the Court:-
(1) When the proposed amendment is unnecessary.
(2) When the proposed amendment causes an injury to the opposite party which
cannot be compensated for by costs.
(3) When the proposed amendment changes the nature of the case.
(4) When the application for amendment is not made in good faith.
(5) When there has been an excessive delay in filing the amendment
application.
Failure to amend:- Rule 18 of Order VI of Code of Civil Procedure, 1908 deals
with this issue. It provides that if a party who has obtained an order for leave to
amend does not amend accordingly within the time limited for that purpose by
43
the order, or if no time is thereby limited then within 14 days from the date of the
order, he shall not be permitted to amend after the expiration of such limited time
as aforesaid or of such 14 days, as the case may be, unless the time is extended
by the Court.
Conclusion
Pleadings are the backbone of legal profession. It is the foundation stone on
which case of a party stands. The case of a party must be set out in the pleadings.
Pleadings do not only define the issues between the parties for the final decision
of the court at the trial, they manifest and exert their importance throughout the
whole process of the litigation. Pleadings provide a guide for the proper mode of
trial. They demonstrate upon which party the burden of proof lies, and who has
the right to open the case. They also determine the range of admissible evidence
which the parties should adduce at the trial. They also lay down limit on the relief
that can be granted by the Court.
5. Briefly explain the different parts of a plaint. (Oct 21)

OR
6. Explain the essential of a plaint. (June 22)
OR
7. Rejection of plain. (Apr 21) 6 Marks
Meaning:-
The expression “plaint” has not been defined in the code. However, it can
be said to be a statement of claim, a document, by presentation of which the suit
is instituted. Its object is to state the grounds upon which the assistance of the
court is sought by the plaintiff. It is a pleading of the plaintiff.
 Rules 1 to 8 of order 7 relate to particulars in a plaint.
 Rule 9 lays down procedure on plaint being admitted.
44
 Rule 10 provides for return of plaint.

 Rules 11to 13 deals with rejection of plaint.
 Rules 14-18 contains provisions relating to production of documents
Particulars of Plaint:-
i. The name of the court in which the suit is brought,
ii. The name, description and place of evidence of the plaintiff and
defendant,
iii. Where the plaintiff or defendant is a minor or a person of unsound mind,
a statement of that effect,
iv. The facts constituting the cause of action and when it arose,
v. The facts showing that the court has jurisdiction,
vi. A statement of the value of the subject-matter of the suit for the purpose
of jurisdiction and court-fee,
vii. The relief claimed by the plaintiff , simply or in the alternative,
viii. Where the plaintiff files a suit in a representative capacity, the facts
showing that the plaintiff has an actual existing interest in the subject-
matter and that he has taken steps that may be necessary to enable him
to file such suit,
ix. Where the suit is for recovery of money, the precise amount claimed,
x. Where the plaintiff has allowed a set-off or relinquished a portion of his
claim, the amount so allowed or relinquished,
xi. Where the suit is for accounts or mense profits or for movable in the
possession of the defendant or for debts which cannot be determined,
the approximate amount or value thereof,
xii. Where the subject-matter of the suit is immovable property a
description of the property sufficient to identify it, e.g. boundaries,
survey numbers, etc.,
45
xiii. The interest and liability of the defendant in the subject-matter of the
suit,
xiv. Where the suit is time-barred, the ground upon which the expression
from the law of limitation is claimed.
There must be two parties in every suit, namely, the plaintiff and the
defendant. There may, however, be more than one plaintiff or more than one
defendant. But there must be at least one plaintiff and one defendant in every suit.
All particulars, such as name, father’s name, age, place of residence, etc., which
are necessary to identify the parties, must be stated in the plaint.
Every suit presupposes the existence of an action against the defendant

because if there is no cause of action the plaint will have to be rejected. Even
though the expression “cause of action” has not been defined in the code, it may
be described as “a bundle of essential facts, which it is necessary for the plaintiff
to prove before he can succeed” or “which gives the plaintiff right to relief against
the defendant”. Thus “cause of action” means every fact, which it is necessary
to establish to support a right or obtain a judgment. To put in differently, cause
of action gives occasion for and forms the foundation of the suit.
REJECTION OF A PLAINT:
The plaint shall be rejected in the following cases:
a) Where plaint does not disclose cause of action: If the plaint does not disclose
any cause of action, the court will reject it. To reject it on this ground the court
must look at the plaint and nothing else. And even if the court comes to the
conclusion that the allegations set out in the plaint are proved, the plaintiff would
46
not be entitled to any relief. In such a case the court will reject the plaint without
issuing summons to the defendants.
b) Where relief claimed is undervalued: Where the relief claimed by the plaintiff
is undervalued and the valuation is not correct within the time filed or extended
by the court, the plaint will be rejected. In considering the question whether the
suit is properly valued or not, the court must confine its attention to the plaint
only and should not look at the other circumstances which may subsequently
influence the judgment of the court as to the true value of the relief prayed for.
c) Where paint is insufficiently stamped: Sometimes the relief claimed by the
plaintiff is properly valued, but the plaint is written upon a paper insufficiently
stamped and plaintiff fails to pay the requisite court fees within the time fixed or
extended by the court. In that case, the plaint will be rejected. If the plaintiff
cannot pay the court fees, he may apply to continue the suit as indigent person.
d) Where the suit appears to be barred by law: where the suit appears from the
statements in the plaint to be barred by any law, the court will reject the plaint.
For Eg. Where in a suit against the government, the plaint does not state that the
notice as required under Section 80 of the code has not been given, then the plaint
will be rejected.
CONCLUSION:
Where the plaint is rejected in the court, the judge will pass the order in
the effect and will record reasons for it. If the plaint is rejected on any of the
above grounds, the plaintiff is not thereby precluded from presenting a fresh
plaint in respect of the same cause of action.
47
8. What is written statement? Under what circumstances can the set off
and the counterclaim be pleaded?
OR
9. Written statement. (Dec 21)
OR
10.Difference between Set-off and Counter Claim. 6 Marks.
11. Counter claim. (June 22) (Dec 21)
Introduction:
written statement is a pleading of the defendant in the answer of the plaint
led by the plaintiff against him. It is a reply statement of the defendant in a suit
specially denying the allegations made against him by the plaintiff in his plaint.
The provision regarding the written statement has provided in the Code of Civil
Procedure, 1908.
Meaning:
The expression Written Statement has not been termed in this code. It is a
term of specific meaning ordinarily signifying a reply to the plaint led by the
plaintiff. In other words, it is the pleading of the defendant wherein he deals with
the material fact alleged by the plaintiff in his plaint and also states any new fact
in his favor or takes legal objections against the claim of the plaintiff.
Who may file a written statement:

A written statement may be filed by the defendant or by his duly authorized
agent. In the case of more than one defendant, the common written statement led
by them must be signed by all of them. But it is sufficient if it is verified by one
of them who is aware of the facts of the case. But a written statement led by one
defendant does not bind other defendants.
Time limit for ling written statement:

A written statement should be led within thirty days from the service of the
summons on him. The said period, however, can be extended up to ninety days,
(Rule -1). A defendant should present a written statement of his defense in the
said period.
48
Defences in written statemen
In written statement defendant can specifically deny the allegations made

in the plaintiff by the plaint against him. Besides this, he also can claim to set-off
any sums of money payable by the plaint to him as a counter defence (Order 8
Rule 6). Further, if the defendant has any claim against the plaint relating to
any matter in the issue raised in the plaint, then he can separately give a counter-
claim along with his written statement. It is provided in Order 8 Rule 6A to 6G
of the code.
Particulars: Rules 1-5 and 7-10

Drafting a written statement is an art so it should be drafted carefully and
artistically. Before proceeding to draft a written statement it is absolutely
necessary for the defendant to examine the plaint carefully.
Special rules of defence:

Rules 2 to 5 and 7 to 10 deal with special points regarding the ling of a written
statement:
(1) New facts, such as the suit is not maintainable, or that the transaction is either
void or voidable in law, and all such grounds of defence as, if not raised, would
take the plaint by surprise, or would raise issues of fact not arising out of
the plaint, such as fraud, limitation, release, payment, performance or facts
showing illegality, etc. must be raised. (Order 8 Rule 2)
(2) The denial must be specific. It is not sufficient for a defendant in his written
statement to deny generally the grounds alleged by the plainti, but he must deal
specially with each allegation of fact which he does not admit, except damages.
49
(3) The denial should not be vague or evasive. Where a defendant wants to deny
any allegation of fact in the plaint, he must do so clearly, specially and
explicitly and not evasively or generally.
(4) Where every allegation of fact in the plaint, if not denied specifically or by
necessary implication, or stated to be not admitted except as against a person
under disability. The court may, however, require proof of any such fact
otherwise than by such admission.
(5) Where the defendant relies upon several distinct grounds of defence or set-off
or counterclaim founded upon separate and distinct facts, they should be stated
separately and distinctly.
(6) Any new ground of defense which has arisen after the institution of the suit is
a presentation of a written statement claiming a set- off or counterclaim may
be raised by the defendant or plaintiff in his written statement as the case may
be.
(7) If the defendant fails to present his written statement within the time permitted
or relaxed by the court, the court will pronounce the judgment against him or
pass such order in relation to the suit as it thinks that and a decree will be
drawn up according to the said judgment.
(8) No pleading after the written statement of the defendant other than by way of
defense to set-o or counterclaim can be led.
a) Set off and counter claim

“Set off means” means a claim set up against another. It is a cross-claim
which partly offsets the original clam. It is an extinction of debts of which two
persons are reciprocally debtors to one another by the credits of which they
are reciprocally creditors to one another. Where there are mutual debts
between the plaintiff and the defendant, one debt may be settled against
another.
“Counter claim” means may be defined as “ a claim made by the
defendant in a suit against the plaintiff’. It is a claim independent of, and
separable from, the plaintiff’s claim which can be enforced by a cross-action.
It is a cause of action in favour of the defendant against the plaintiff.
50
Difference between set off and counter claim

a. Set off is statutory defence to a plaintiff’s action, whereas a counter claim is
substantially a cross-action
b. Set off must be for an ascertained sum or it must arise out of the same
transaction; a counter claim need not arise out of the same transaction.
c. Set off is a ground of defence to the plaintiff’s action. In other words, the
former is a ground of defence, a shield, which if established, would afford an
answer to the plaintiff’s claim in toto (as a whole) or pro tanto (in proportion);
the later is a weapon of defence, a sword, which enables the defendant to
enforce the claim against the plaintiff effectually as an independent action.
d. In the case of a legal set-off, the amount must be recoverable at the date of the
suit, while in the case of a counter-claim the amount must be recoverable at
the date of the written statement.
When the defendant demands in a plaintiff’s suit an amount below or up to the
suit claim, it is a set-off strict sensu, but when it is for a larger amount, the
claim for excess amount is really a counter-claim
Conclusion
The Written Statement must contain all the documents based on which the
Defendant denies allegations or states new facts in his pleadings. New facts,
if any, that are pleaded by the Defendant must be specifically pleaded
in the Written Statement in the interest of justice, equity and
convenience
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51

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Civil Procedure code notes unit I and II by Praveen B S (Asst. Prof.

of Al Ameen College of Law)

Civil Procedure code and Limitation Act

1. Civil and criminal jurisdiction.

4. Jurisdiction as to subject matter:-

5. Original and appellate jurisdiction:-

as for instance, the Debt Recovery Tribunal, the Competition Commission,

INTRODUCTION: Whenever there is a right, there is remedy (ubi jus ibi

7. Suits relating to restitution of conjugal rights.

Suits not of a Civil Nature.

3. Explain the doctrine of res subjudice (Dec 21 Old) 10 Marks

 It protects a person from multiplicity of proceedings and avoids conflict of

Doctrine of Res-Subjudice is not applicable in the following instances:-

In State of Maharashtra Vs M/S National Construction Company (A.I.R.

5. Explain Doctrine of ‘Res judicata’. State the conditions for applicability of

3. The matter directly and substantially in issue in both thesuits must be

Constructive Res Judicata

State of Karnataka v. All India Manufacturers Organisation &Ors., AIR

would be a judgement in rem.

8. Discuss the provision of CPC in respect of place of suing. (Dec

specifically applies to suits for compensation for wrongs to persons or

Pecuniary Jurisdiction: Sec.15

When the suit filed is regarding a movable property, then the

Jurisdiction plays an important role in the justice system. Approaching

9. State the rules regarding ‘Transfer of suits’ (Apr 21)

10. Foreign judgement. (Dec 21) (Apr 21) 6 Marks

not established or continued by the authority of the Central Government.

Foreign Judgements: Meaning

Section 13 enacts a branch of Rule of Res Judicata in its relations to

The word matter in Section 13 is not equivalent to subject-matter rather

Binding Nature of Foreign Judgements

In D. Viswanathan v. Rukun ul Mulk Sayed Abdul [AIR 1963 SC

Foreign courts would have jurisdiction in the following

 Where the party on summons voluntarily appeared; and

Conclusiveness of Foreign Judgement is binding or competent

(1) If at the time of commencement of action defendant was

Foreign Judgement not on Merits

Foreign Judgements When Not Binding

Section 13 of the Code holds a foreign judgement to be conclusive except

i. Foreign Judgement has not been pronounced by a Court of

binding, the dispute between the parties must be adjudicated by a Court

iii. Foreign Judgement against International or Indian Law:

iv. Foreign Judgement opposed to natural justice:

Clause (d) of Section 13 requires the judgement passed by a foreign

v. Where it has been obtained by fraud:

vi. Foreign Judgement founded on breach of Indian Law:

and mechanically and every case must be decided in accordance with

Presumption as to Foreign Judgement

Enforcement of Foreign Judgements

THE NECESSARY PARTIES TO A CIVIL SUIT

A necessary party is that party without whom a claim or allegation cannot

The joinder or incorporation of any person as a party to a suit, opposite to the

 They have a conflict of interests.

However, a misjoinder may be a misjoinder of plaintiffs or a misjoinder of a

In a similar way, where two or more persons may have joined as

This aspect may be coexisting with misjoinder of plaintiffs or misjoinder of

When a party is necessary to the suit

No probability of dismissal as it won’t There are probabilities of dismissing

2. Explain the different modes of service of Summons. (Oct 21)(March 21)(Old

3. Substitute service. (June 22) 6 Marks