Part - II of CPC which includes 4th and 5th Units - prepared by Titus Finny

Unit 4 and 5
Suits in particular cases (sec 79 - sec 88)

1. Suits by or against Government: - Sections 79 to 82 and Order 27 of the Code lay down
the procedure where suits are brought by or against the Government or public officers.

 Section 80 the person filing the suit must give a notice of at least 2 months before filing
the suit
 A notice under Section 80 must contain i. name, description and place of residence of the
person giving notice; ii. a statement of the cause of action; and iii. Relief claimed by him
 Sub-section (2) of Section 80 is inserted by the Code of Civil Procedure (Amendment)
Act, 1976 enables the plaintiff to institute a suit against the Government or public officer
for obtaining urgent or immediate relief with the leave of the court even without serving
notice to the Government or public officer.

2. Suits relating to public matters :-

A) Public nuisance section 91 of CPC that lays down the procedure for initiation of a civil suit
for the offense of public nuisance. 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. Or

(c) action by a private individual, where he has sustained some extraordinary damage by it.

B) PIL:- It may be defined as a litigation undertaken for the purpose of redressing public injury,
enforcing public duty and claiming public rights.

The concept of PILs was spelt out with conviction and clarity in the S.P.Gupta v Union Of India
where the Court clarified that it was the court’s responsibility to ensure that the instrument of
public interest litigation was not being used to garb private profit or political motivation.

However, it was the Ratlam Municipality case that broke new ground for using litigation in
public interest for removal of nuisance (caused by dismal state of the drains in the locality in the
case).
3.

Suits by or against minors, persons with unsound mind :-Suit against minor:- (order XXXII)
If there is guardian then case can be file against him because no case can be file against minor if
there is no guardian then court have power to appoint authorized person called as Next friend. It
includes following points

a. Court may published notification & direct interested parties to file application to become next
friend within 1month period.
b. Court may summon all applicants & examine them & found out reason to become next friend.
c. When court is satisfied by explanation of any applicant court appoint him as next friend.
d. Court may also allow remuneration for next friend which he may get income of property.
e. Next friend have power to appoint advocate & represent the case.
f. Next friend have to maintain accounts of expenses of case.
g. When minor becomes major then he have to give account of expenses & retired as a next friend.

4. Suits by indigent persons:- Indigent person 1. Any person who has no means to pay the Court
fees prescribed by the law for the plaint in suit; and, 2. He has not entitled to any property worth
1000 rupees where no fees is prescribed.
Order 33 CPC is an enabling provision which allows filing of a suit by an indigent person without
paying the court fee at the initial stage
5. Interpleaded suits:- he plaintiffs in such suits usually do not have any real interest in the subject
matter of the suit and institute the suit to only make sure that the property in dispute is put in the
custody of the actual owner. In Halsbury’s Laws of England, interpleader suits have been defined.

For an interpleader suit to be filed there must be a property or a sum of money that is in dispute
over ownership and possession. The person currently in possession should not claim any right over
the property in dispute and should rather be ready to deliver it to the respective owner once
decided by the court. Section 88 of the Code of Civil Procedure, 1908 governs suits of such nature
and Order XXXV lays down the procedure to be followed in case of interpleader suits.

6. Incidental and supplementary proceedings: -

Incidental means, a happening as a result of something else or unintended consequence of
something. Incidental proceedings are such proceedings which incidental or due to happening of
something and related to main proceeding.
1. Death of parties 2. Marriage 3. Insolvency 4. Withdrawal of suit 5. Compromise of suit 6.
Commission
 Supplemental proceedings.-

In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-

a) issue a warrant to arrest the defendant

b) direct the defendant to furnish security
c) grant a temporary injunction
d) appoint a receiver

7. Appeals, Reference, Review and Revision :-

There is provision of fair justice therefore all these provisions has been included in CPC from
section 96 to 115.
Provision of Appeal:- (Section 96 to 112)
1. When court give judgment then aggrieved party can file appeal in superior court having
jurisdiction.
2. Party who file appeal is called as appellant & opposite party is called as respondent.
3. Appeal has to be file within 3months (or) 90days from date of judgment (or) receiving copy of
judgment.
4. Original copy of judgment to be enclose with appeal petition.
5. In appeal petition appellant have to mention all errors committed by sub ordinate court wrong
interpretation of provision & points which are neglected to consider it.
6. Appeal is decided on basis of argument of both sides & again witnesses are not examined.
7. Appellate court calls the file of the case from sub ordinate court.
8. In appeal petition also appellant have to claim the reliefs.
9. In high court every appeal is not admitted & there is argument at the time of admission. If there
is questions of law (or) facts to be considered then appeal is admitted otherwise rejected.
10. In high court (or) Supreme Court appeal is allowed there from smaller bench to larger bench.
11. Appellate court has power to confirm alter, set aside, judgment of sub ordinate court by
recording reasons.
Reference:- (Section 113) Reference is done at judicial level, purpose of reference is to avoid
error on law points it includes following points.
1. All sub ordinate courts can do reference to high court.
2. It is done on law point & not facts.
3. Law points are send in sealed covered to chief justice of high court.
4. High court can make reference to Supreme Court.
5. Opinion is given & sends in sealed cover within 1month period.
6. If opinion is suitable in pending case then judge may apply it & delivered the judgment, if it is
not suitable then he deliver judgment in his own way.
Review:- Section 114) Review means to reconsider when judge have committed error in judgment
the review petition is file before same judge.
Error (or) mistake to be specified in review petition copy of judgment to be enclosed with the
petition it should be filed within 1month (or) 30 days limitation period from the date of judgment.
Judge make hearings of both sides, if there is error then it is rectify & revised copy of judgment is
issued to party, generally mathematical error is rectified in review petition there is no need to file
appeal & party can save his money & time,

Revision:- (Section 115) Revision is done against order of sub ordinate court to superior court
having jurisdiction, revision petition to be filed within 1month (or) 30days from receiving copy of
passing order (or) receiving copy of order copy of order to be enclosed with revision petition, judge
makes hearing of both sides, revision court have power to confirm, alter, set aside order of sub
ordinate court. Order of superior court to be obliged by sub ordinate court. Ex:- Sub ordinate court
pass order that it has no jurisdiction, if superior court says there is jurisdiction then court have to
entertain the case.

8. Appeal From Original Decrees:- sec 96 In general, an appeal lies from any decree passed by the
court.
In cases, where the value of suit does not exceed Rs.10, 000 An appeal can be filed only on a question of law.
When a decree has been passed against the Defendant as "Ex-Parte", i.e. without his appearance, no
appeal is allowed.
When an appeal is headed by two or more judges, then the
majority decision shall prevail.
In case there is no majority, then the decree of lower court
shall be confirmed.
In case, the number of judges in the court, where appeal is filed is more, than the number of judges
hearing the appeal, then if there is a dispute on a point of law, such dispute can be referred to one or
more judges.
9. Appeals from Appellate Decrees:- { (2nd appeal) to High court }
There must be a substantial question of law.
10. Limitation Act 1963 is having following objects
1. Party should file case within limitation period because there should be an end to litigation.
2. Law always helps vigilant & not dormant & therefore remedy to be taken within limitation
period.
3. There should not be hanging sword of litigation which may disturb peace of society.
4. Time once start running will not stop & party have to take remedy without delay.
5. Limitation act has not given sword in hands of one party & sealed in hand of other party
but whip is in hand of court.
 Grounds of condonation of delay period:- (section 11)
1. Unsound mind person:- If any person is unsound mind then after treatment he can file the
case if he becomes normal court may condone delay caused in treatment.
2. Minority:- When there are minor children & next friend has not been appointed then after
age of majority court may allow him to file the case & delay is condoned.
3. Sickness:- When anybody sick’s as in patient then period of hospital will be condoned by
the court.
4. No knowledge of facts:- When there is sudden death of head of family & there is no
knowledge about his transactions then case can be filed when it comes to knowledge & delay
may be condoned.
5. Rejection of plaint:- When court reject a plaint on grounds of having no jurisdiction then it
can be filed in court having jurisdiction & court condoned such delay.
6. Mistake of advocate:- When party have given case within limitation period but advocate
cause delay then court may condone it, in such case court may give warning & also imposed
penalty to be paid by advocate.
7. Poverty:- These is weak ground of condonation of delay when party have no money for
travelling (or) to engage advocate then court may consider to condone delay.
8. Illiteracy:- There is weak ground because ignorance of law is no excuse court may
consider to condone delay if party is illiterate & having no knowledge of legal right.
9. Holidays (or) Vacations:- When holidays (or) vacations start from last day of filing then it
can be file when court reopens & these delay is considered.

11. Acknowledgment means renewal of limitation period,

Parties can executes fresh documents by mentioning new date there is no need of fresh
transaction & document is based on earlier transaction it is done by mutual consent of parties,
computation of period is calculated from the date mentioned on the document, it is convenient
because fresh period is available for filing the case.
Ex:- A have give 1lakh rupees loan to B limitation period is 3years to file recovery suit, if
fresh document is executed then again 3years period is available & it is called as
acknowledgment
12. Legal disability: Section 6 of the Limitation Act 1963 provides that no limitation will apply
to a case in which person seeing was disqualified at the time when the cause of action arose
provided the suit is brought within 3 years of the time when the disqualification cease.
Section 6 of the said Act gives minors or lunatics an extended period for filing a suit or
application.