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CPC1908

TILAK MAHARASHTRA VIDYAPEETH

Mahadeo Nalawade

LLB-5th Semester

THE CODE OF CIVIL PROCEDURE 1908

Q1 What is memorandum of appeal ?

Ans : A Memorandum of Appeal is the set of grounds upon which a judicial examination is prayed for. It should contain concisely and under separate heads, the grounds of
objection to the decree appealed against. The Memorandum is often need to be accompanied by a copy of the decree appealed from.

Q2- Write short notes on affidavits and evidence on affidavits.

Ans : An affidavit is a sworn statement of facts by a person who knows that such facts and circumstances have taken place. The person who makes such statement and signs it
is known as a deponent. An affidavit is a written document signed by the deponent, confirming that the contents of the affidavit are true and correct to his knowledge and he has
concealed nothing material therefrom. It is duly attested/ affirmed by the Notary or Oath Commissioner. Such Notary/ Oath Commissioners are appointed by the Court of Law.
Affidavit is treated as “evidence” within the meaning of Section 3 of The Evidence Act. However, in the matter of Khandesh Spg & Wvg Mills CO. Ltd. Vs Rashtriya Girni Kamgar
Sangh, citation 1960 AIR571, 1960 SCR(2) 841, it was held by the Supreme Court that an affidavit can be used as evidence only if the Court so orders for sufficient reasons,
namely, the right of the opposite party to have the deponent produced for cross-examination. Therefore, an affidavit cannot ordinarily be used as evidence in absence of a
specific order of the Court.

Q3- Explain different kinds of Jurisdiction

Ans : There are broadly 6 kinds of jurisdictions in India.

1. Civil and Criminal Jurisdiction : Civil jurisdiction is the power of a court to deal with civil matters whereas criminal jurisdiction is the power of the court to hear and
decide criminal matters. Family matters, property disputes, tax matters etc. will be decided by civil courts. A matter involving any crime like murder, theft, robbery
etc. will be decided by criminal courts.
2. Territorial or local jurisdiction : The territory within which a court can exercise its powers is called its territorial jurisdiction. District court of a region has power to
decide matters arising within or related to immovable property situated within that district only. Similarly, High Court of a region for example of Maharashtra will have
jurisdiction to decide matters arising within Maharashtra only and not outside.
3. Pecuniary jurisdiction : Means the authority of court to hear and decide matters on the basis of monetary value of subject matter of the suit as pleaded in the
plaint. District court and high courts have no limit up to which they can entertain the matters. But monetary limit for civil courts has already been provided.
4. Subject matter jurisdiction : The courts have been divided on the basis of subject matter on which they can entertain a suit. Family matters can dealt by family
courts only and not by NCLT that specifically deals with company matters only or by tax tribunals etc.
5. Original and appellate jurisdiction : Original jurisdiction is the power of court to entertain a suit in first instance. When the aggrieved party appeals that judgment
given by court of first instance in other court, such court is called the appellate court and its power to entertain that appeal is its appellate jurisdiction. Matters
related to disputes between states can only be filed in Supreme Court only under its original jurisdiction and no district court or high court has the power to entertain
that suit.
6. Exclusive and concurrent jurisdiction: Exclusive jurisdiction is when there is only one court which can hear and decide a matter. Concurrent jurisdiction is when
two or more courts can entertain a matter at the same time. If a suit for divorce can be filed in Delhi or in Haryana, both courts have concurrent jurisdiction but if it
was decided by court in Delhi then Delhi High Court has exclusive jurisdiction to entertain appeal arising from it.

Q4- What is pleadings?

Ans : Pleading is the beginning stage of the suit in which parties formally submit their claims and defences. In this, a plaintiff submits a complaint stating the cause of action,
the issue or issues in controversy. The defendant submits an answer stating his or her defences and denials. The defendant may also submit a counterclaim stating a cause of
action against the plaintiff. Pleadings serve an important function of providing notice to the defendant that a lawsuit has been instituted against him. It also provides notice to the
plaintiff of the defendant’s intentions in regards to the suit. Order 6 deals with pleadings in general.

Q5- What is plaint and written statement?


Ans : A plaint is a legal document which contains the written statement of the plaintiff’s claim. A plaint is the first step towards the initiation of a suit. It can be said to be a
statement of claim, a document, by the presentation of which the suit is instituted. However, the expression “plaint” has not been defined in the code. It is a pleading of the
plaintiff. In plaint, the plaintiff should allege facts about his cause of action. A plaint which is presented to a civil court of appropriate jurisdiction contains everything, including
facts to relief that the plaintiff expects to obtain. he expression “Written Statement” has not been defined in this code. It is a term of specific meaning ordinarily signifying a reply
to the plaint filed 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.

Q6- Procedure regarding suit by or against minors.

Ans :

1. Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. [O. 32, R. 1]. The next friend should be
a person who is of sound mind, who has attained majority, who is not a defendant and whose interest is not adverse to that of the minor.
2. Where the suit is instituted without a next friend the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader off other person by
whom it was presented. [O. 32, R. 2].
3. Where a suit has been instituted on behalf of the minor by his next friend, the court may, at any stage of the suit either of its own motion or on the application of any
defendant and for reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant. Where
such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government. (O. 32, R. 2-A).
4. Where the defendant is a minor, the court, on being satisfied of the fact of his minority, should appoint a proper person to be guardian for the suit for such minor,
called the guardian ad litem.
5. An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
6. A person appointed as guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all
proceedings arising out of the suit including in any appellate or revisional court and any proceedings in any execution of a decree. (O. 32, R. 3).
7. Where the interest of the next friend is adverse to that of the minor or where he is connected with a defendant whose interest is adverse to that of the minor, or
where he does not do his duty or, during the pendency of the suit, ceases to reside within India, or on any other sufficient cause, the court may, on an application
made on behalf of the minor, order the next friend to be removed.
8. On the retirement, removal or death of the next friend of a minor, further proceedings are stayed until the appointment of a next friend in his place. Similarly, a
guardian may also be removed if he does not do his duty or is allowed to retire by the court, and the court may appoint a new guardian in his place. (O. 32, R. 9).
9. Where the minor plaintiff attains majority, he may elect to proceed with the suit or elect to abandon it. If he elects the former course, he shall apply for an order
discharging the next friend and for leave to proceed in his own name. The title of the suit will be corrected so as to read henceforth thus—“A. B., late a minor by
C.D., his next friend but now having attained majority.”
10. Where he elects to abandon the suit, he shall, if sole plaintiffs apply for an order to dismiss the suit in repayment of the costs incurred by the defendant or which
may have been paid by his next friend. (O. 32, R. 12).
11. Where the minor applies to the court that the suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper and the
court is satisfied of such unreasonableness or impropriety, it may grant the application and order the next friend to pay the costs of all parties in respect of the
application and the suit, or make such other order as it thinks fit. (O. 32, R. 14).
Q7- Framing of Issues

Ans : Order XIV Rule 3 of CPC provides that issues may be framed either on the allegations made on oath by the parties or on the basis of allegations made in the pleadings or
on the basis of contents of documents produced by either party. Once issues have been framed, the Court, under Order XV Rule 3 of the CPC, has to consider whether existing
undisputed evidence in the form of documents available on the record is sufficient to determine such issues and if not, to give an opportunity to the parties for production of
evidence as may be necessary for decision upon such issues. The Court concludes the evidence led by the parties is to be guided by the issues framed and not by the reliefs
claimed in the plaint. The determination by the Court also has to be of the issues framed and not of the reliefs claimed in the plaint. The grant of the relief claimed in the plaint is
consequential to the determination of the issues.

Process of Framing of Issues :

1. When plaint is presented to the court the case is set in motion. Subsequently the written statement is filed by the other party. After that issues are framed. The day
on which the issues are framed is termed the day of “first hearing of the suit”. On the first day of the suit the court shall ascertain from each party whether he admits
or denies the allegation in the plaint.
2. It is after “the first hearing of the suit” from the parties, reading the plaint and the written statement, and ascertaining on what material proposition of fact or law the
parties are at variance, the court frame issues. The right decision in any case dominantly rests on the correctness of the issues framed.
3. If the defendant makes no defence in the first hearing of the suit, there is no need to frame the issues. Issues are framed to avoid surprises in the trial and enable
the parties know what points they need to provide evidence on. The averments not denied in the written statement are taken as admitted.

The issues are to be framed by the court from the following sources:-

1. Allegations of parties or their behalf on oath


2. Allegations made in the pleadings/interrogatories
3. The contents of documents produced by both parties.

Q8- When foreign Judgement not conclusive?

Ans : In the following six cases, a foreign judgement shall not be conclusive (Section 13(a) to (f)).

1. Foreign Judgement not by a Competent Court: It is a fundamental principle of law that the judgement or order passed by the Court which has no jurisdiction is
null and void. Thus, a judgement of a foreign Court to be conclusive between the parties must be a judgement pronounced by a Court of competent jurisdiction.
2. Foreign Judgement not on merits: In order to operate as Res- judicata, a foreign judgement must have been given on merits of the case. A Judgement is said to
have been given on merits when, after taking evidence and after applying mind regarding the truth or falsity of the plaintiffs case, the Judge decides the case in one
way or the other. Thus, when the suit is dismissed for default of appearance of the plaintiff or for non-production of the document by the plaintiff even before the
written statement was filed by the defendant, or where the decree was passed in consequence of default of defendant in furnishing security or after refusing leave
to defend, such judgements are not in merits.
3. Foreign Judgement against International or Indian Law: A judgement based upon an incorrect view of international law or a refusal to recognise law of India
where such law is applicable is not conclusive. But the mistake must be apparent on the face of the proceedings.
4. Foreign Judgement opposed to Natural Justice: It is the essence of a judgement of a Court that it must be obtained after due observance of the judicial process,
i.e., the Court rendering the judgement must observe the minimum requirements of natural justice it must be composed of impartial persons, acting fairly, without
bias, and in good faith, it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case.
5. Foreign Judgement obtained by fraud: It is a well-established principle of Private International Law that if a foreign judgement is obtained by fraud, it will not
operate as Res-Judicata.
6. Foreign Judgement founded on a breach of Indian Law: Where a foreign judgement is founded on a breach of any law in force in India, it would not be enforced
in India. The rules of Private International Law cannot be adopted mechanically and blindly. Every case which comes before a Indian Court must be decided in
accordance with Indian Law. It is implicit that the foreign law must not offend our Public Policy. Thus a foreign judgement for a gaming debt or on a claim which is
barred under the Law of Limitation in India is not conclusive. Similarly, a decree for divorce passed by a foreign Court cannot be confirmed by an Indian Court if
under the Indian Law the marriage is indissoluble.

Q9- Difference between decree and order.

Ans : There are several common elements between an order and a decree – both related to matter in controversy, both are decisions given by the court, both are adjudications,
both are formal expressions. However, there are substantial differences between them –

1. As per Section 2(2) of CPC, a decree is the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights
of the parties with regard to all or any of the matters in controversy in the suit. It can be final or preliminary. While as per Section 2 (14), The formal expression of any
decision of a civil court which is not a Decree is Order. In a suit, a court may take certain decisions on objective considerations and those decisions must contain a
discussion of the matters at issue in the suit and the reasons which led the court to pass the order. However, if those decisions fall short of a decree, they are
orders.
2. Decree can only be passed in a suit originated by the presentation of a plaint while order can be passed in a suit originated by the presentation of a plaint,
application, or petition.
3. Decree Contains Conclusive Determination of a right while Order may or may not finally determine a right.
4. Decree may be final, preliminary, or partly preliminary – partly final while Order cannot be a preliminary order.
5. In general, there can only be one decree or at the most one preliminary and one final decree in a suit while there can be any number of orders in a suit.
6. Every decree is appealable unless an appeal is expressly barred while only those orders which are specified as appealable in the code are appealable.

Q10- Write a note stay of suit : Res sub Judice under section 10 of civil procedure code 1908.

Ans : Section 10 of CPC provides for stay of suit. The primary rule under stay of suit or rule of res sub-judice prevents Courts of concurrent jurisdiction from simultaneously
adjudicating upon parallel litigation filed for the same cause of action, for the same matter and for the same relief. Thus, two suit between same parties, involving same
subject‑matter and same questions then the subsequent suit should be stayed.

Conditions to be fulfilled for stay of suit

1. There must be two suits. On instituted previously and the other instituted subsequently.
2. Both suits shall be pending in the Courts of India or Courts established outside India under the authority of the Central Government
3. The matter in issue in the previous suit shall be substantially in issue in subsequent suit.
4. The Court in which previous suit is instituted must have jurisdiction to grant relief claimed in the subsequent suit.
5. Both the parties must be between the same parties or their representatives
6. Both parties must be litigating under the same title

If the aforesaid conditions are fulfilled then it is the Court’s duty to stay the suit. The Court is empowered to stay the later suit and not the earlier one.

Q11- Costs

Ans : According to Black’s Law Dictionary “costs is a pecuniary allowance made to the successful party for his expenses in prosecuting or defending a suit or a distinct
proceeding with a suit”. Cost are an allowance to the party for expenses incurring in prosecuting or defending a suit, an incident to the judgment.

Section 35 : The object of section 35 is to awarding costs to a litigant is to secure to him the expenses incurred by him in the litigation. It neither enables the successful party to
make any profit out of it nor punishes the opposite party. The general rule relating to cost is that cost should follow the event, i.e. a successful party must get the costs and the
losing party should pay the other side.

Section 35-A: The object of Section 35-A is to provide for compensatory costs. This section is an exception to the general rule on which Section 35 is based, that the “costs are
only in indemnity, and never more than indemnity”. This section intended to deal with those cases in which Section 35 does not afford sufficient compensation in the opinion of
the court. Under this provision, if the court is satisfied that the litigation was inspired by vexatious motive and was altogether groundless, it can take deterrent action. This
section only applies to the suit and not to the appeals or to the revisions.

Section 35-B: Section 35-B is added by the Amendment Act of 1976. It is inserted to put a check upon the delaying tactics of litigating parties. It empowers the court to impose
compensatory costs on parties who are responsible for causing delay at any stage of the litigation. Such costs would be irrespective of the ultimate outcome of the litigation. the
payment of cost has been a condition precedent for further prosecution of the suit, if the party concerned is a plaintiff and the defence , if he is a defendant.

Q12- Adjournments

Ans : Adjournment is a putting off or postponing of proceedings; an ending or dismissal of further business by a court, legislature, or public official—either temporarily or
permanently. If an adjournment is final, it is said to be sine die, “without day” or without a time fixed to resume the work. An adjournment is different from a recess, which is only
a short break in proceedings. Adjournments frequently sought by the parties contribute significantly to the delays caused in deciding the matters. The granting of adjournments
is at the discretion of the court. The rules governing adjournments are considerably strict and if applied in their true spirit can substantially reduce the delays involved. Order 17
of the Code of Civil Procedure deals with the provision of adjournment. It runs as under :-

1. Court may grant time and adjourn hearing–


1. The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the
hearing of the suit for reasons to be recorded in writing. Provided that no such adjournment shall be granted more than three times to a party during
hearing of the suit.
2. Costs of adjournment- In every such case the Court shall fix a day for the further hearing of the suit and shall make such orders , as to costs occasioned
by the adjournment or such higher cost as the court deems fit.
2. Procedure if parties fail to appear on day fixed,- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the
Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
3. Court may proceed notwithstanding either party fails to produce evidence, etc.— Where any party to a suit to whom time has been granted fails to produce
his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed,
the Court may, notwithstanding such default,-
1. if the parties are present, proceed to decide the suit forthwith, or
2. if the parties are, or any of them is, absent, proceed under rule 2

Q13- What is foreign judgement?

Ans : A foreign judgment is defined under section 2 (6) of the CPC as a judgment of a foreign court. A foreign court, under section 2(5) of CPC, means a court situated outside
India and not established or continued by the authority of the Central Government. Section 2(5) of the Code defines a ‘foreign court’ to mean a Court outside India and not
established or continued by the authority of the Central Government. CPC sections that deal with foreign judgment/decrees are Section 13, Section 14 and Section 44. Section
13 embodies the principle of Private International Law that court will not enforce a foreign judgment if the judgment is not that of a competent court. The rules laid down under
section 13 are of the substantive law, as well, along with being that of procedural law. Sections 13 and 14 enact a rule of res judicata in case of foreign judgments. These
provisions embody the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian court and will
operate as res judicata between the parties thereto except in the cases mentioned in Section 13.

Jurisdiction To Foreign Courts : The following circumstances would give jurisdiction to foreign courts:

1. Where the person is a subject of the foreign country in which the judgment has been obtained;
2. Where he was a resident in the foreign country when the action was commenced and the summons was served on him;
3. Where the person in the character of plaintiff selects the foreign court as the forum for taking action in which forum he issued later;
4. Where the party on summons voluntarily appeared; and
5. Where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained.

Binding Nature of Foreign Judgments: Principles : The Code of Civil Procedure provides that a foreign judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties pr between parties under whom they or any of them claim litigating under the same title except –

1. Where it has not been pronounced by court of competent jurisdiction;


2. Where it has not been given on the merits of the case;
3. Where it appears on the face of the proceeding to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which
such law is applicable;
4. Where the proceeding in which the judgment was obtained or opposed to natural justice;
5. Where it has been obtained by fraud;
6. Where it sustains a claim founded on a breach of any law in force in India
Conclusiveness of Foreign Judgment : As stated above, a foreign judgment is conclusive and will operate as res judicata between the parties and privies though not
strangers. It is firmly established that a foreign judgment can be examined from the point of view of competence but not of errors. In considering whether a judgment of a foreign
court is conclusive, the courts in India will not require whether conclusions recorded by a foreign court are correct or findings otherwise tenable. In other words, the court cannot
go into the merits of the original claim and it shall be conclusive as to any matter thereby directly adjudicated upon between the same parties subject to the exception
enumerated in clauses (a) to (f) of Section 13.

Q14- Define necessary party and proper party.

Ans : Under Order 1 of CPC, provisions regarding the necessary and proper parties are

provided Order 1 provide provisions about the party to the suit. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective
decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary
party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a
person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the
wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a
necessary party or a proper party to the suit for specific performance.

Q15-Write on ‘Impounding of Documents’

Ans : The court may for sufficient cause direct any document or book produced before it in any suit to be impounded for any period and kept in the custody of an officer of the
court. (Order XIII, Rule 8).

Q16- Temporary injunction.

Ans : An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant
for that purpose, forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is threatening or attempting to commit, or restraining him in the
continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action fit law.

Temporary injunctions, as the name suggests, are the injunctions that are given for a specific period of time or until the court gives further order regarding the matter in concern.
They can be obtained during any stage of the trial and are regulated by the Code of Civil Procedure (CPC), 1908[3]:

Section 94: The section provides for supplemental proceedings, to enable the court to prevent the ends of justice from being defeated. Section 94(c) states that a court may
grant temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold. Section 94(e) of the
Code enables the court to make interlocutory orders as may appear to it to be just and convenient.
Section 95: If it is found by the court that there were no sufficient grounds to grant the injunction, or the plaintiff is defeated in the suit, the court may award reasonable
compensation to the defendant on his application claiming such compensation.

Order XXXIX:

Rule 1: It enlists the situations when a court may grant temporary injunction. These are:

Any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

Rule 2: It provides that an interim injunction may be granted for restraining the defendant from committing a breach of contract or other injury of any kind to the plaintiff.

Rule 3: It states that a court shall direct a notice of application to the opposite party, before granting the injunction to the plaintiff. However, if it seems to the court that the
purpose of the injunction would be defeated by the delay, it may not provide the notice.

Rule 4: It provides for vacation of already granted temporary injunction.

Rule 5: It states that an injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal
action the injunction seeks to restrain.

Q17- Write on “Effect of fraud on Limitation”

Ans: The word ‘fraud’ with reference to Section 17 of the Limitation Act is to be such fraud as is essential ingredient of the cause of action. Fraud affects limitation only where it
prevented a person from knowing of his right or the title on which his claim was fraud. Fraud contemplated under Section 17 is the actual and active fraud in the means adopted
to keep the person injured out of the knowledge of his right. There must be some abuse of a confidential position, some intentional imposition or some deliberate concealment
of facts; a designed fraud by which a party knowing to whom the right belonged, concealed the facts and circumstances giving that right.

The time will be extended under Section 17 of the Limitation Act only as against the —

(a) Person guilty of fraud or mistake, or fraudulently concealing document, or

(b) His agent, or

(c) Who claims through such person other than a bona fide purchaser for valuable consideration?
Section 17 of the Limitation Act can have no application where the fraud alleged by the party applying to set aside an execution sale is mere understatement of the valued of the
properties in the sale proclamation.

Section 17 of the Limitation Act is an enabling section which postpones the starting point of limitation for suit and application.

Q18- Plaint

Ans : A plaint is a legal document which contains the written statement of the plaintiff’s claim. A plaint is the first step towards the initiation of a suit. In fact, in the very plaint, the
contents of the civil suit is laid out.

Through such a plaint, the grievances of the plaintiff are spelled out, as well as the possible causes of action that can arise out of the suit. A plaint which is presented to a civil
court of appropriate jurisdiction contains everything, including facts to relief that the plaintiff expects to obtain. Order VII of the CPC particularly deals with a plaint.

Admission of Plaint : When the court serves the summons for the defendant, according to Order V, Rule 9, the plaintiff must present copies of then plaint according to the
number of defendants, and should also pay the summons fee, within seven days of such a summons.

Return of Plaint: Order VII, Rule 10 states that the plaint will have to be returned in such situations where the court is u able to entertain the plaint, or when it does not have the
jurisdiction to entertain the plaint. The courts can exercise the power of returning the plaint for presentation before the appropriate court if it feels that the trial court itself did not
have the appropriate jurisdiction in the first place. Once the appellate court finds out that the trial court decided on the civil suit without proper jurisdiction, such decision would
be nullified.

Dismissal of Plaint: If the plaint is to be returned to the parties after its rejection, the court has to fix a date for the same where the parties can arrive for this purpose. This was
mentioned in Rule 10, inserted by the amendment act of 1976. If the court does not have the adequate jurisdiction, the proper course is to return the plaint and not to dismiss it.

A plaint can be rejected under the following scenarios:

1. Where the cause of action is not disclosed


2. When the relief claimed by the plaintiff is undervalued, and he/ she is not able to correct it even after being instructed by the court to do so.
3. When the relief claimed is proper, but the plaintiff proceeds with the plaint on a paper which has not been stamped sufficiently and fails to do so even after the
court’s instruction.
4. Where the suit stems from a statement which has been essentially barred by law.

Q19- Write short note on Pleadings


Ans : Pleading is the beginning stage of the suit in which parties formally submit their claims and defenses. In this, a plaintiff submits a complaint stating the cause of action, the
issue or issues in controversy. The defendant submits an answer stating his or her defenses and denials. The defendant may also submit a counterclaim stating a cause of
action against the plaintiff. Pleadings serve an important function of providing notice to the defendant that a lawsuit has been instituted against him. It also provides notice to the
plaintiff of the defendant’s intentions in regards to the suit.

Object: The whole object of pleadings is to bring parties to definite issue and to diminish expense and delay and to prevent surprise at the hearing. Further that the parties
themselves know what are the matters in dispute and what facts they have to prove at the trial. In fact, the whole meaning of the system is to narrow the parties to definite
issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.

Basic rules of pleadings rule 2:- As per the sub-rule(1) of rule 2. And on analysis, of the lays down fundamental principles of pleadings, the following general principles
emerge:-

1. Pleadings should state facts and not law;


2. The facts stated should be material facts;
3. Pleading should not state the evidence; and
4. The facts should be stated in a concise form.

Conditions of amendment of pleadings which are as follows:-

1. That the amendment is necessary for the resolution of disputes between the parties.
2. That there exist to possibility from the amendment to be harmful to any one of the parties.
3. That the time, which is needed for the amendment would not cause damage to any legal right of the defendant.
4. That the amendment does not in any way lead to any new proceeding.
5. That there must exist bona fide belief on the part of the person who comes for the amendment.

Things for which amendment in pleadings is not allowed:

1. Where their amendment changes the nature of the suit and introduces a totally different, new and inconsistent case or changes the fundamental character of the
suit or defence.

Where new relief is added or asked.

3. Where the new cause of action is arisen by the new application.


4. Where the effect of the proposed amendment is to take away from the other side a legal right accrued in his favour.
5. Where the application for amendment is not made in good faith.

Q20- Counter Claim


Ans : A defendant in a lawsuit may, in addition to the right of pleading a set-off under Order 8 Rule 6, claim a right of counterclaim against the plaintiff in his written statement. It
is treated as plaint of the defendant against the plaintiff and governed by the rules applicable to the plaints. A plaintiff may file a written statement against the counterclaim of the
defendant.

Doctrine of counterclaim:- Defendant has a plea to defeat the relief sought by the plaintiff against him is a counterclaim. Therefore, in addition to his right of set-off, a
defendant in a suit may set up a counterclaim. It may be set up only in respect of a claim for which the defendant is entitled to file a separate suit. But, before the amendment act
1976, there was no specific provision for a counterclaim in the code. The Supreme Court, however, held in the case of Laxmidas vs. Nanabhai, AIR 1964 SC11, that the right to
make a counterclaim statutory.

The main objects of counterclaim are as follows:-

1. For the save the time of the courts,


2. For avoiding the multiplicity of the suit,
3. For excluding the inconvenience to the parties to the litigation,
4. For deciding the all disputes between the same parties to avoid the multiplicity of the suit,
5. For avoid the prolong trails, etc.

Modes of setting up counterclaim:-There are three modes of pleading or setting up a counterclaim in civil suits, which are as follows:-

1. In the written statement filed under Order 8 Rule 1;


2. By amending written statement with the leave of the court and setting up counterclaim; and
3. In a subsequent pleading under Order 8 Rule 9.

Effect of counterclaim:-Under this rule a counterclaim has the effect of a cross- suit and the court can pronounce a final judgment both in the original claim and the
counterclaim. In a case where even if the suit of the plaintiff is stayed, discontinued, dismissed or withdrawn, the counterclaim will be decided on merits, and the defendant will
have entitled to get a decree for a counterclaim as claimed in the written statement. In the case where the plaintiff does not file any reply to the counterclaim, the court may
pronounce the judgment against the plaintiff in relation to the counterclaim filed by the defendant.

Counterclaim at the appellate stage:-An appellate authority has no power to entertain counter-claim at the appellate stage made for the first time.

Q21- Review and Revision

Ans : Review :The meaning of “review” is “the process of judicial re-examination of a case by the same court and by the same judge who has passed the judgement or order
earlier. Any human being can make a mistake or error and so do the judges. So, the procedure of Review has been embedded in the legal system to correct the mistakes and
prevent any miscarriage of justice.

Grounds of Review

There are certain grounds laid down under Rule 1 of Order 47 on which an application made for the review of a judgement is maintainable:
On the discovery of new and important matter or evidence : A court can review its judgement when some new and important matter or evidence is discovered
by the applicant which couldn’t be produced or was not available at the time of passing the decree.
When the mistakes or errors are apparent on the face of the record : When there is an apparent error on the face of record then the court may review its
judgement or decree. As decided in the case of Karutha Kritya v. R. Ramalinga Raju, the error includes an error of fact as well as an error of law.
Other sufficient reason : The last ground for review is any sufficient reason. Any sufficient ground considered for review by the court comes under this ground. It
could be any reason which the court feels sufficient to review its judgement in order to avoid a miscarriage of justic

Revision : Section 115 of the Code of Civil Procedure empowers A High Court to entertain a revision in any case decided by a subordinate Court in certain circumstances. This
jurisdiction is known as revisional jurisdiction of the High court .Revision meaning the action of revising, especially critically or careful examination or perusal with a view to
correcting or improving. Judges of the subordinate court have absolute jurisdiction to decide a case and even when they have wrongfully decided a case, they do not commit
any “jurisdictional error”. With the power of revision, the High Court can correct the jurisdictional error when committed by the subordinate court. The provision of revision
provides an opportunity to the aggrieved party to get their non-appealable orders rectified.

Q22- Caveat

Ans : The word ‘Caveat’ is not defined in the Code of Civil Procedure, 1908, however, in the case titled Nirmal Chand Vs Girindra Narayan, AIR 1978 Calcutta 492, the Hon’ble
High Court defined the word ‘Caveat’ as under; The term ‘caveat’ is very common in testamentary proceedings. A caveat is a caution or warning giving notice to the Court not to
issue any grant or take any step without notice being given to the party lodging the caveat. It is a precautionary measure taken against the grant of probate or letters of
administration, as the case may be, by the person lodging the caveat.

Object and Scope

The object of this is to safeguard the interest of the Caveator, who is ready to face the suit or proceedings which is expected to be instituted by his opponent, affording an
opportunity to be heard, before an ex parte order is made. Also, to avoid multiplicity of proceedings, so as to save the costs and conveniences of the Courts. Such caveat shall
not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of
the said period. The Section 148-A of Code of Civil Procedure, 1908 talks in brief about the Caveat Petition. A Caveat Petition is a precautionary measure which is undertaken
by people usually when they are having a very strong apprehension that some case is expected to be filed in the Court of Law, regarding their interest in any manner.

Q23- Effect of death or before the accrual of right to sue on limitation period.

Ans : Section 16 of the Limitation Act, 1963 provides that:

1. Where a person who would, if he were living, have a right to institute a suit or make an application dies before the right accrues, or where a right to institute a suit or
make an application accrues only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of the
deceased capable of instituting such suit or making such application.
2. Where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues or where a right
to institute a suit or make an application against any person accrues on the death of such person, the period of limitation shall be computed from the time when
there is a legal representative of the deceased against whom the plaintiff may institute such suit or make such application.
3. Nothing in sub-section (1) or sub-section (2) applies to suits to enforce rights of pre-emption or to suits for the possession of immovable property or of a hereditary
office.

The principle of Section 16 of the Limitation Act is that in order that a right of suit or cause of action may exist, there must be in existence of a person capable of suing and
another capable of being sued and there can be no limitation until there is a person in existence competent to sue.

Q24- Explain the doctrine of Res-Sub-judice. Distinguish between Res Sub-Judice and Judicata.

Ans : Introduction : Sub Judice means ‘under judgment’. It implies that a matter is being considered by court or judge. In a scenario when two or more cases are filed between
the same parties on the same subject matter, the competent court has the power to stay proceedings. So, the doctrine of Res Sub Judice means stay of suit. In Latin, Res
Judicata means a matter that has been judged. When a case has already been decided and the final judgement been given such that the matter is no longer subject to appeal,
the doctrine of res judicata bars or precludes continued litigation of such matter between the same parties.

Res Sub-Judice : The first provisions related to avoiding multiplicity of suit starts with the provision of the concept of Res Sub Judice as provided under, Section 10 of CPC :
Stay of Suit in which no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between
the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India
having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or
before the Supreme Court. The purpose of the section is to bring finality in the judgment and to avoid the contradictory decision by the two different court, as there is a very good
possibility that in case when matter is simultaneously being decided by different courts of concurrent jurisdiction, the courts may come up with different decisions and then it will
be very difficult to finalize which decisions to be abided by. Conditions to be complied with before the application of the principle:

1. There must be two suits one previously instituted and the 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 Bangladesh or in any court beyond
the limits of Bangladesh established or continued by the 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.

The distinction between “Res Subjudice” and “Res Judicata”.

1. Res Subjudice is discussed in s.10, CPC; while Res Judicata is discussed in s. 11, CPC.
2. Res Subjudice applies to the proceedings pending in the court, i.e., matters pending judicial inquiry; while Res Judicata applies to matters already adjudicated
upon.
3. Res Subjudice stays the latter suit instituted in the court which has the same matter directly and substantially in issue in the previous suit; while Res Judicata bars
the trial of a suit in which the matter is directly and substantially in issue has already been adjudicated upon in a previous suit.
4. In the case of Res Subjudice, the previously instituted suit must be pending in the same court in which the subsequent suit was brought or in a different court
having jurisdiction to grant the relief claimed; while in Res Judicata, No such requirement is needed.
Conclusion:

With the soaring number of filing of frivolous and repetitive suits in the Indian Courts, it has become inevitable to ‘rigorously implement’ these doctrines. But, the rigor of
application of doctrine must not cut the ‘substance’ of justice. The ‘procedure’ of judicial efficiency needs to be given ‘practical recognition’, but while maintaining the balance
so that the ‘justice’ does not die.

Q25- What is plaint? Explain in Details.

Ans: Introduction: A plaint is a legal document which contains the written statement of the plaintiff’s claim. A plaint is the first step towards the initiation of a suit. It can be said
to be a statement of claim, a document, by the presentation of which the suit is instituted. However, the expression “plaint” has not been defined in the code. It is a pleading of
the plaintiff. In plaint, the plaintiff should allege facts about his cause of action. A plaint which is presented to a civil court of appropriate jurisdiction contains everything,
including facts to relief that the plaintiff expects to obtain.

Plaint under CPC : Plaint is defined in order 7 of CPC. Rules 1 to 8 of order relate to particulars in a plaint. Rule 9 lays down procedure on plaint being admitted. Whereas
rules 10 to 10-B provide for the return of plaint, and appearance of parties, rules 11 to 13 deal with rejection of plaint. Rules 14 to 17 contain provisions for the production of
documents. Order 7should be read with section 26 of the code.

Particulars of the plaint:

1. The name of the particular court where the suit is brought; [R.1(a)];
2. The name, place, and description of the plaintiff’s residence; [R.1(b)];
3. The name, place, and description of the defendant’s residence; [R.1(c)];
4. A statement of unsoundness of mind or minority in case the plaintiff or the defendant belongs to either of the categories; [R.1(d)];
5. The facts that led to the cause of action and when it arose; [R.1(e)];
6. That fact that point out to the jurisdiction of the court ; [R.1(f)];
7. A statement of the value of the subject-matter of the suit for the purpose of jurisdiction and court fees; [R.1(i)];
8. The relief claimed by the plaintiff, simply or on the alternative; [R.1(g)];
9. 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 the he has
taken steps that may be necessary to enable him to file such a suit; [R. 4];
10. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; [R.1(h)];
11. Where the suit is for recovery of money, the precise amount claimed; [R 2]
12. Where the suit is for accounts or mesne profits or for movables in the possession of the defendant or for debts which cannot be determined, the approximate
amount or value thereof; [R. 2]
13. Where the subject-matter if the suit is immovable property description of the property sufficient to identify it, e.g. boundaries, survey numbers, etc; [R.3]
14. The interest and liability of the defendant in the subject-matter of the suit; [R. 5]
15. Where the suit is time-barred, the ground upon which the exemption from the law of limitation is claimed; [R. 6 ]

Rejection of Plaint: Law, Cases and Grounds of Rejection : Order 7 Rule 11 of the Code of Civil Procedure delineates the grounds on which a plaint can be rejected. The
grounds are:
1. The plaint does not disclose cause of action
2. The relief claimed is undervalued
3. Where the relief claimed is properly valued, however the plaint is written upon paper that is insufficiently stamped Under Order 7, Rule 11(c) the Court is bound to
grant some time to deposit the deficit court-fee on a plaint that is insufficiently stamped. Under the statutory provision, the plaint is liable to be rejected only when
plaintiff has failed to supply the required stamp-paper within the time required by the Court. Thus, in such cases the Court is under an obligation to require the party
to make good the deficiency in the case of a plaint.
4. Where any statement in the plaint is such that it is barred by law
5. Where the plaint is not filed in duplicate

Q26- Explain the concept of the indigent person and state the provisions for filing suit by indigent person under CPC 1908.

Ans: Introduction: Order 33, C.P.C, deals with the suit filed by Indigent persons. Previously, the expression “Pauper” was used. Further, the expression “Indigent person” was
substituted in places where the word “pauper” had occurred because it was inappropriate particularly after India wedded to a socialistic pattern of society. It was done in
accordance to the recommendation of the Law commission in its 54th Report. For institution of suits court-fee has to be paid. But, there are innumerable persons who owing to
that poverty are unable to pay the court-fee, and to enable them to file suits exemption from court-fee is provided for under Order 33 of C.P.C.

Indigent Person : The term “Indigent person” has been defined under Order 33 Rule 1, a person is an indigent person if he does not have sufficient means other than property
excused from attachment in execution of the degree, to enable him to pay prescribed fees. The Supreme Court of India in the case of UOI v. Khader International Construction
has held that, the word “person” mentioned in Order XXXIII, Rule 1 includes not only a natural person but other judicial person such as a public limited company.

Contents of application: – Every application should contain the following particulars:

1. the particulars required in regard to Plains in suit


2. of any movable or immovable property belonging to the applicant with estimate value thereof, and
3. signature and verification as provided in order 6 rule 14 and 15

Applicant should present the application to the court in person unless exempted by court Rule 3. In case of more than one applicant, it can be presented by any of the proviso to
rule 3.

Rejection of application rule 5:-In the following cases an application for permission to show as an indigent person will be rejected by the court:-

1. if the application is not framed and presented prescribed manner; or


2. if the applicant is not an indigent person; or
3. if the applicant has disposed of any property fraudulently in order to get permission to sue as an indigent person within two months before the presentation of the
application; or
4. if there is no cause of action; or
5. if the applicant has entered into an agreement with reference to the subject matter of the shoot under which another person has obtained interest; or
6. if the suit appears to be barred by law
7. if any other person has entered into an agreement with the applicant to finance costs of litigation
Inquiry Rule 1A:- According to Rule 1, at the first stage, an inquiry into the means of the applicant should be made by the Chief Ministerial Officer of the court. The court may
adopt report submitted by such officer or may itself make an inquiry. Where the application submitted by the applicant is in proper form and is duly represented, the court may
examine the applicant regarding the merits of the claim and the property of the applicant. R.4. After that, the court shall issue a notice to the opposite party and to the
Government Pleader and fixed a day for receiving evidence as the applicant may adduce in proof of his indigency or in disproof thereof by the opposite party or by the
Government Pleader. On the day fixed, the court shall examine the witnesses (if any), produced by either party, hear their arguments and either allow or reject the application.

Revocation of permission: Rule 9:- On the application by the dependent or by the Government Pleader, the court may revoke permission granted to the plaintiff to sue as an
indigent person in the following cases:-

1. If he is guilty of vexatious or improper conduct in the course of the suit; or


2. If his means are such that he ought not to continue to sue as an indigent person; or
3. If he has entered into an agreement on which another person has obtained an interest in the subject matter of the suit.

Recovery of the court fees and costs:- Where indigent person succeeds in the suit, the court shall calculate the amount of court fees and costs and recover from the party as
per the direction in the decree and it will be the first charge on the subject matter of the suit. Where an indigent person fails or abates, the court fees shall be paid by him. Where
the suit abates due to the death of the plaintiff, such court fee would be recovered from the estate of the deceased plaintiff.

Set off and Counterclaim:- An indigent person may also plead set off or file counterclaim without paying Court fees.

Appeal:- An order rejecting an application to sue as an indigent person is appealable.

Q27- Explain the term ‘Continuous running of time’ When time commences to run?

Ans Where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it: Provided that where letters of administration to the
estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues.

ESSENTIALS OF SECTION 9 OF LIMITATION ACT:

1. Time Has Begun to Run: Generally, the time begins to run when the cause of action accrues and the true test to determine when the cause of action has accrued
is to ascertain the time when the plaintiff could have first maintained his action to a successful result.
2. Disability or Inability to Sue: Disability means want of legal qualification to act and inability means the want of physical power to act.
3. Subsequent Disability or Inability : To apply this section. it is necessary that the disability or inability must accrue subsequent to the cause of action.
4. Disability or Inability of Plaintiff: The expression disability or inability to sue refers to something which pertains to the plaintiff.

EXCEPTION TO THE RULE UNDER SECTION 9 OF LIMITATION ACT:

1. Letters of Administration: Where letters of administration to the estate of the creditor have been granted to his debtor, the running of time in favours of such
debtor is suspended for so long as the administration continues.
2. Period of Limitation: In computing the period of limitation prescribed for an appeal, an application for leave to appeal, and an application for a review of judgment.
the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded. Likewise, in the case‘ of an
application to set aside an award, the time requisite for obtaining a copy of award shall be excluded.
3. Court Without Jurisdiction: When the plaintiff has been prosecuting another civil proceeding ,Bonafede in a court without jurisdiction.
4. Stay the Institution of Suit: When an injunction order has been obtained to stay the institution of a suit.
5. Notice: When notice has been given before the institution of suit in accordance with law. The limitation shall be suspended during the period of notice,
6. Suit for Possession: In a suit for possession by a purchaser at an execution of sale, the limitation shall be suspended during the time for which the proceeding to
set aside the sale has been prosecuted.

Q28- Explain the concept of mesne profit under the code.

Ans : Section 2(12) of C.P.C bearing elementary language defines the term. “Mesne profits of property means those profits which the person in wrongful possession of such
property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements
made by the person in wrongful possession.” Mesne profits commonly occur where a landlord has obtained an order from a court to evict a tenant, or where an individual sues
to eject a bona fide landowner to whom title to land was improperly conveyed. The mesne profit represents the value (living rent-free, profits earned from the land, etc.) the
ejected tenant received from the property between the time the court ordered the eviction and the time when the tenant actually left the property.

Q29- Explain the meaning of the term ‘Restitution’

Ans : The expression restitution has not been defined in the code, but it is “an act of restoring a thing to its proper owner.” Restitution means restoring of anything unjustly taken
from another. It provides for putting a party in possession of land, tenement or property, who had been unlawfully dispossessed, deprived or disseised of it. In other words,
restitution means restoring to a party the benefit which the other party has received under a decree subsequently held to be wrong. The word restitution in its etymological
sense means restoring to a party on the modification, variation or reversal of a decree what has been lost to him execution of the decree or in direct consequence of the decree.

Q30- Define the term ‘Order’ under the code.

Ans : Definition of Order as per u/s 2(14) of C.P.C is the formal expression of any decision of a Civil Courts which is not a decree.

Essentials of Order:

1. Decision: the expression, “decision” refers to judicial determination of facts in accordance with evidence.
2. By Civil Court:Decision must be one of Civil Court and not of the administrative tribunal.
3. Formal Expression:Decision given by court must be formally expressed i.e. it must be in writing, precise and the language must be deliberate, so that the
execution would be possible.
4. Not a Decree:The definition of order specifically excludes the decree from its ambit and as such any adjudication of court which is decree, cannot be an order at
the same time.

Q31- Under what condition, subordinate court makes a reference to the High Court?

Ans : Section 113 of the Civil Procedure Code empowers a subordinate court to state a case and refer the same for the opinion of the High Court. Such an opinion can be
sought when the code itself feels some doubt about a question of Law. The word ‘Court’ wherever it occurs in the code means a Court of civil Judicature. The reference can
only be made by a Court but not by a persona designate. A reference can only be made by a Court when there is a reasonable doubt about a question of Law or only when it is
of opinion that Act is ultra vires. Unnecessary observations made by the High Court while disposing of the reference having no legal effect must be treated to have been
rendered infructuous and superfluous but such power of reference is discretionary.

Q32- Representative Suits

Ans : As a general rule all persons interested in a suit ought to be joined as parties to it, so that the matter involved therein maybe finally adjudicated upon an fresh litigation
over the same matters may be avoided. A representative suit is an exception to this rule. Order I rule 8 of IPC provides that when there are Number of persons similarly
interested in a suit, one or more of them can, with the permission of court or upon a direction from the court , sue or to be sued on behalf of themselves and others. The plaintiff
in a representative suit need not to be obtain the previous consent of the person to whom he seeks to represent. Thus ‘ representative suit’ may be defined as under….. A
representative suit is a suit filed or against one or more persons on behalf of themselves and others having the same interest in the suit.

Object : The object underlying this provision is really to facilitate the decision of questions in which a large number of person are interested without recourse to the ordinary
procedure. Order I rule 8 of the code has been framed in order to save time and expense, to ensure a single comprehensive trial of questions in which numerous persons are
interested and avoid harassment to parties by a multiplicity of suits .In cases where the common right or interest of a community or members of an association for large sections
is involved, there will be insuperable practical difficulties in the institution of suits under the ordinary procedure, where each individual has to maintain and action by separate
suit. To avoid numerous suits being filed or for decision of a common question , Order 1 rule 8 has come to be enacted. The provision therefore should receive liberal
interpretation, which will subserve the object of its enactment.

Conditions : For the application this rule, following conditions must exist…

1. The Parties must be numerous.


2. They must have the same interest in the suit.
3. The permission must have been granted or direction must have been given.
4. Notice must have been issued to the parties to whom it is proposed to represent.

Q33- Set-Off.
Ans : Under order 8 of the code a defendant files a written statement in reply of the plaint of the plaintiff, in this if any situation arises where the plaintiff files a suit of recovery of
money from the defendant, but at same time defendant also has some debt on the plaintiff, in this case the defendant may claim for the set off the amount against the plaintiff
recoverable by him. For the setting off the amount, the defendant has to state the fact in the written statement filed by him. Provisions regarding the set-off have defined under
Order 8 Rule 6 of CPC. It is a cross-claim between the parties to the suit regarding their recovery of money. It is the destruction of the debts of which two persons are reciprocally
debtors to one other. As the case may be where there are mutual debts between the parties (plaintiff and defendant), one debt may be settled against the other.

Essential conditions:- A defendant may claim a set-off if he satisfied the conditions follow as under-

1. The suit must relate to recovery of money;


2. The sum of money must be ascertained or definite;
3. Above said sum must be recoverable legally;
4. The sum of money must be recoverable by the defendant or by all the defendants, in case of more than one defendants;
5. It must be recoverable from the plaintiff by the defendant;
6. It must not exceed the pecuniary limits of the court in which the suit is brought;
7. Both the parties must fill, in the defendant’s claim to set-off, the same character as they fill in the plaintiff’s suit;

Effect of set-off:- In the claim of set-off, there are two suits, one by the plaintiff, and the other by the defendant against the plaintiff, they are tried together, no separate suit is
necessary. In such a case, when the defendant claims set-off, he will stand in the position of the plaintiff in regards to the amount claimed by him. In such case, if the plaintiff
doesn’t appear and his suit is dismissed for default, or he withdraws his suit, etc. it does not affect the claim of the defendant for set-off and a decree may be passed by the court
in favour of the defendant if he is able to prove his claim.

Q34- Ex-Parte Decree

Ans : An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite service of summons, where on the date of hearing only plaintiff does and a defendant
does not appear the Court may hear the suit ex parte and pass a decree against the defendant. The legal validity, enforceability and operation of such decree is similar to any
bi-parte decree.

Remedies against ex-parte decree

1. An application under Order 9, Rule 13

The main contention of the learned counsel for the appellant is that, when the defendant in the suit failed to let in evidence and failed to participate in the suit proceedings
further, the trial Court ought not to have passed judgement merits under order 17 Rule 3 and instead should have passed only an Ex-
parte judgement under order 17 Rule 2 CPC. Therefore, according to the learned counsel for the appellant, the judgements of both the courts below are to be set aside and
remitted back for fresh consideration after giving an opportunity to the defendant/appellant to let in evidence on her behalf. According to the learned counsel for the appellant,
the evidence

Following remedies are available to the defendant against whom an ex parte decree has been passed:
1. Under the provisions of Order 9 Rule 13 of the CPC, where a decree is passed ex parteagainst a defendant, he may apply to the Court by which the decree was
passed for an order to set it aside. In such a situation, if the defendant satisfies the Court that the summons was not duly served, or that he was prevented by any
sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as
to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
2. The defendant may file an appeal against such ex partedecree under Section 96(2) of the CPC.
3. Alternatively, if no such appeal is available against such decree, the defendant may file a revision against such ex partedecree under the provisions of Section 115
of the CPC.
4. Under Order 47 Rule 1 of the CPC, the defendant may apply for review, subject to the conditions mentioned therein.
5. If the ex partedecree has been obtained by the plaintiff by fraud, the defendant may also have the option / remedy of filing a regular suit to set aside such ex parte It
should be noted that, ordinarily, a suit to set aside an ex parte decree cannot be filed. However, if such decree was obtained by the plaintiff by fraud, a suit may be
maintainable to set aside such decree.

Q34- Temporary Injunction

Ans : Interim or interlocutory orders are those orders passed by a court during pendency of a suit or proceeding which do not determine the substantive rights and liabilities of
parties with respect to subject matter of the suit or proceeding. Latin maxim “Actus curiae neminem gravabit” which means “an act of the court shall prejudice no one” explains
the rationale behind granting such orders. This principle can be found in Section 94(e) of the Civil Procedure Code which says that ‘In order to prevent the ends of justice from
being, defeated the Court may, if it is so prescribed, make such other interlocutory orders as may appear to the Court to be just and convenient. Interim orders are necessary to
deal with and protect rights of the parties in the interval between the commencement of the proceedings and final adjudication. They prevent abuse of process during the
pendency of proceedings. Such interim orders may be summarized as follows:

1. Commissions: Order 26
2. Arrest before judgment: Order 38
3. Attachment before judgment: Order 38
4. Temporary injunctions: Order 39
5. Interlocutory orders: Order 39
6. Receiver: Order 40
7. Security for costs: Order 25
8. Payment in court: Order 24

Order 39 Rule 1 says that temporary injunction can be granted when:

1. any property in dispute in a suit is in danger of being wasted , damaged or altered by any party to the suit , or wrongfully sold in execution of a decree; or
2. the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors;
3. the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff relating to any property in dispute in the suit .

Q35- Interpleader Suit


Ans : Section 88 read with Order XXXV of the Code of Civil Procedure, 1908 dealing with interpleader suits. interpleader suit is one in which the real controversy/dispute is not
between the plaintiff and the defendant, but is rather between the defendants only, who inter-plead against each other. The hallmark of an interpleader suit is the fact that, in an
interpleader suit, the plaintiff is not really interested in the subject-matter of the suit. The primary and the foremost object of an interpleader suit are to have the claims of rival
defendants adjudicated, for, in an interpleader suit, there must be some debt, or, some money, or, other property in dispute between the defendants only. The plaintiff in an
interpleader suit must be in a position of impartiality/ non-arbitrariness.

Plaint in an Interpleader Suit: Order XXXV, Rule 1 of the Code of Civil Procedure, 1908 require the interpleader to state in his plaint that, the plaintiff claims no interest in the
subject-matter of suit and the claims put forth by the defendants severally. The interpleader must also categorically state that, there is no collusion between the parties to the
suit, that is, the plaintiff and any of the defendants. The interpleader must specify in the plaint, the claims made by the defendants severally, and should express his willingness
to bring the property (if it is moveable) before the court.

Payment of the thing claimed into Court: Order XXXV, Rule 2 of the Code of Civil Procedure, 1908, provides that where a thing claimed is such that, it is capable of being
paid into the court, then, the plaintiff/interpleader may be required to pay such amount or thing before the court. Thus, the court has discretion to make such orders as regards
the subject matter in dispute and the party concerned will be bound to obey the order before it can ask for any relief in the suit.

Who cannot file Interpleader Suit? : Order XXXV, Rule 5 of the Code of Civil Procedure, 1908 states that, an agent cannot sue his principal, and similarly, a tenant cannot sue
his landlord for the purpose of compelling such principals/landlords to interplead with persons other than the ones claiming through them.

Q36- Interest

Ans : Interest is the compensation allowed by law or fixed by the parties for the use or forbearance or detention of money…Payments a borrower pays a lender for the use of the
money. Section 34 of CPC does not refer to the payment of interest under the first ‘lead and it applies only to the second and third heads:

1. Interest accrued due prior to the institution of the suit on the principal sum adjudged.
2. additional interest on the principal sum adjudged, from the date of the suit to the date of the decree; and
3. further interest on the aggregate sum adjudged i.e., the principal sum plus interest, from the date of the decree to the date of payment or such earlier date as the
Court thinks fit at such rate as the Court deems reasonable”.

Section 34 C.P.C. reads that (1) Where and in so far a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems
reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period
prior to the institution of the suit, with further interest at such rate not exceeding six per cent, per annum, as the Court deems reasonable on such principal sum, from the date of
the decree to the date of payment, or to such earlier date as the Court thinks fit: Provided that where the liability in relation to the sum so adjudged had arisen out of a
commercial transaction, the rate of such further interest may exceed 6% p.a., but shall not exceed contractual rate of interest or where there is no contractual rate, the rate at
which moneys are lent or advanced by nationalized banks in relation to commercial transactions.

Three Divisions of interest:

1. Pre-lite:-Interest accrued due prior to the institution of the suit on the principal sum (due) adjudged. Interest for the period anterior to institution of suit is not a matter
of Procedure as it is preferable to substantive law and can be sub-divided into two sub-heads; (i) where there is a stipulation for the payment of interest at a fixed
rate (contract rate) and (ii) where there is no such stipulation as per statutory provisions providing certain rate of interest and in its absence as per the interest Act
(from date of demand (from date of service of demand notice) and at prevailing market rate and bank lending rate as guidance). Pendent-lite:-
2. Pendent-lite: In addition to pre-lite interest, it is the additional interest on the principal sum adjudged or declared due from the date of the suit either at contract rate
if reasonable or at such rate as the Court deems reasonable in the discretion of the Court (as per Section 34 CPC till date of decree or under Order 34 Rule 11
C.P.C. in case of mortgage debt if contract rate is unreasonable and excessive to reduce even from date of suit till expiry of the period of redemption) as not a
substantive law;
3. Post-lite:-In addition to pre-lite interest on principal sum and pendent-lite interest on the principal sum adjudged or found due, it is the further interest on such
principal sum (as per Section 34 CPC or under Order 34 C.P.C. as not a substantive law, from the date of the decree to the date of the payment and in mortgage
decree from date of preliminary decree till expiry of period of redemption and thereafter till realization/payment as the case may be in any decree for money held
due with or without charge preliminary or final or partly final decree) or to such earlier date as the Court thinks fit, in the discretion of the Court, at a rate not
exceeding 6 per cent per annum except where the transaction is a business or commercial one to grant above 6 percent but does not exceed contract rate as also
laid down by the larger bench of the AP High court in APSRTC Vs. Vijaya.

Q36- Grounds for Rejection of plaint.

Ans : When any plaint is presented to the court, then it is the first duty of the court to examine the plaint properly for the determining, whether it should be tried, or returned, or
rejected and in order to determine the question regarding the rejection of the plaint, and it also the responsibility of the court to take consideration of other material facts too.
Order 7 rule 11 of CPC mention the provision, where the plaint should be rejected. These all grounds are explain in detail the following:-

1. Where plaint does not disclose the cause of action: In every plaint filed by the plaintiff if it does not disclose any cause of action the court will reject it. But in
order to reject the plaint on this ground, the court must look at the plaint and at nothing else.
2. Where the relief claimed is undervalued: where the relief claimed by the plaintiff is undervalued and the valuation is not correct within the time fixed and
extended by the court, the plaint will be rejected.
3. Where paint is insufficiently stamped : In many cases relief claimed by the plaintiff is properly valued, but it is written upon a paper insufficiently stamped and the
plaintiff fails to requisite Court fees within the time fixed and extended by the court. In that case, the plaint will be rejected.
4. Where suit is barred by law: Any suit which appears from the statement in the plaint that is barred by the law, the court will reject the paint. For instance; wherein
a Suit against the government, the plaint does not state that a “notice” as required by Section 80 of code has been given, the plaint will be rejected under this
clause.
5. Where plaint is not in duplicate: The plaint has to be filed in duplicate. if the said requirement does not comply with the plaint will be rejected.
6. Where there is non-compliance with the statutory provision: Where the plaintiff fails to comply with the provision of rule 9, the plaint will be rejected, [Order 7
R.11(f)]
7. Other grounds:Under order 7 rule 11 the grounds for rejection are not exhaustive. A plaint can be rejected on other ground also, for example, if the plaint is signed
by the person not authorised by the plaintiff and if the defect is cured within the time granted by the court, the plaint can be rejected. Likewise, where the plant is
found to be vexatious and meritless, not disclosing a clear right to sue, the court may reject the plaint under this rule.
8. Power and duty of the court: The power conferred on the code under order 7 rule 11 is drastic in nature. Conditions precedent to exercise the said power are
stringent. Hence, it is the duty of the court before exercising this power that such conditions are fulfilled. The power to reject the plaint can be exercised by the court
at any stage of the suit.
9. Procedure on the rejection of plaint: Rule 12 : Where a plaint is rejected by the court, the judge will pass an order to that effect and will record reasons for such
rejection.
10. Effect of rejection of plaint: Rule 13 : 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.
11. Appeal: An order rejecting a plaint is a deemed “decree” within the meaning of section2(2) of the code, and, therefore, is appealable.
12. Mode of rejecting plaint: A plaint may be rejected either by
1. An application of the defendant, or
2. Suo moto by the court if it is liable to be rejected under Order 7 Rule11 of CPC.

Q37- “The principle of res-judicata is based on the need of giving a finality to the judicial decisions” Explain this statement with the object , nature and scope Res-
Judicata u/s 11 of code illustration.

Ans : Indian Legal system adopted the doctrine of Res Judicata from the common law. The principle of res judicata was included in Section 11 of the Civil Procedure Code.
After the Civil Procedure code, Administrative Law accepted the applicability of the res judicata. Afterward, it was accepted by other statutes and acts and the doctrine of res
judicata started growing in the Indian Legal System. When the court finds any suits or issues which has been already decided by the court and there is no appeal pending
before in any court, the court has the power to dispose of the case by granting a decree of Res Judicata.

Object: The doctrine of res judicata is conceived in the larger public interest which requires that all the litigation must, sooner than later, come to an end. The principle is also
founded on justice, equity and good conscience which require that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings
involving the same issue. But for this rule there would be no end to litigation and no security for any person, the rights of persons would be involved in endless confusion and
great injustice done under the cover of law. In Duchess of Kingstone case, it was observed that judgment of a court of concurrent jurisdiction, directly upon the point, is, as a
plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another court and the judgment of a court of exclusive
jurisdiction , directly on the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different
purpose. The principle of res judicata seeks to promote honesty and fair administration of justice and to prevent abuse of process of law.

Nature of Res-Judicata : “Res” means “subject matter” and “Judicata” means “decided”. This doctrine is formed in the larger public interest and it requires that all litigation,
sooner or later, must come to an end[2]. This principle is based on justice, equity and good conscience. Means, if a party who has succeeded once in a suit, should not be
harassed in the further proceeding involving the same issue. Res judicata strives to strike a balance between two pits, first the efficiency of the judicial system by providing final
judgment. whereas, second, it protects the parties’ interests and rights which have been decided already. Section 11 of the code contains the principle of public policy in
statutory form. it embodies the rule of conclusiveness and operates as a bar to try the same issue twice.

Conditions for application of Res Judicata (Section 11 of CPC,1908)

There must be two suits – One former & other subsequent: Former suit means previously decided suit. It doesn’t matter when the suit was instituted. What it
matters is when the decision came from the court.

Matter directly and substantially in the subsequent suit: It means that matter must be directly related to the suit. It must not be collateral or incidental to the
issue. For example, ‘A’ and her mother filed a suit against her father’s brother for claiming a share in the property of her mother. The question of marriage expenses
was not directly or substantially in issue. The claim of partition was dismissed by the court. However, the principle of res judicata doesn’t bar ‘A’ to file a subsequent
suit for her marriage expenses as the matter was not directly in issue in the former suit.
There must be same parties: The parties to a suit are those whose name appears on the record of the suit at the time of the decision. A party who withdraws or
whose name is stuck off is not considered as a party. Further, a minor not represented by the guardian for the suit is not a party to the suit. Where any decision
made by the court in favor of or against any party then it not only binds the party but also their successors too. For an instance, a suit filed by any person for
recovery of possession and ownership title and the court decided in his favor, then his legal heirs also considered as the parties after his death and res judicata will
apply.
There must be the same title: ‘Same title’ means ‘in same capacity’. It has been held in the number of cases that ‘a verdict against a man suing in one capacity
will not stop him when he sues in another capacity’. For example, ‘A’ file suit against ‘B’ as the owner of property and suit is dismissed by the court. Later on, he
filed a suit to claim his right as mortgagee will not bar him to institute a subsequent case. So where the suit is filed in a different capacity then it is considered to be
a valid suit and doesn’t bar by this doctrine.
The decision must be made by the competent court: The Former decision must be given by competent court having jurisdiction on the case. If the case is
decided by the court has no jurisdiction over the subject matter then res judicata will not apply. For an instance, revenue courts exercising authority under the Act
can be held to be a court of limited jurisdiction and decision by it within its competence will operate as res judicata.
Heard and finally decided: The matter directly & substantially in issue in subsequent suit must have been heard and finally decided by the court in a former suit.
“Heard and finally decided” means that the court has exercised its judicial mind & after argument and consideration came to decision on contested matter and
decision is made on the merits of the case. In following cases the matter is deemed to be finally decided on merits even if the former suit is disposed of in the
following manner:

1. By ex parte
2. By dismissal
3. By decree on an award
4. By oath tender under section 8 on Indian Oath Act,1873
5. By dismissal owing to plaintiff failed to produce evidence at the hearing.

Writ Petition

In Daryo Singh v. State of U.P., the petitioner has filed a writ petition in High Court of Allahabad under Article 226 and it was dismissed. He further filled writ petition in Supreme
Court under Article 32 of the constitution for same relief and same ground. The Supreme Court dismissed the petition and upheld the contention of High Court. Hence the
principle will also apply to writ petitions. However, it may be noted that the doctrine of Res Judicata will not apply to a writ of “Habeas Corpus”.

Foreign Judgements : Section 13 provides that foreign judgements may operate as res jusicata except in following six cases:-

1. Where the decision is not given by the competent court.


2. Where the decision has not been given on the merits of the case.
3. Where the judgement is found to be incorrect with the view of international law.
4. Where the judgement opposed to the doctrine of natural justice.
5. Where the decision has been obtained by fraud
6. Where the judgement found to be on breach of law enforced in India.

Q38-Discuss the provisions regarding suits by or against Govt or public officers under the code.

Ans : Under the Civil Procedure Code, the subject of suits by or against public officers in their official capacity has been recognized under Section 79, Section 80 and Order 27
of CPC. Firstly, it should be understood that Section 79 of CPC is a procedural provision and hence, it does not deal with rights and liabilities enforceable by or against the
government. But at the same time, it declares a mode of the procedure when the cause of action arises. On the other hand, Section-80 of CPC is not a procedural provision but
a substantive one, the rules involved in it and working of Section 80 will be discussed further. Lastly, Order 27, includes under its ambit various rules and subjects like that of
recognized agents, attorney general and the procedure to be followed while the suit is being filed by or against the government or public officers in their official capacity.

Section 79- This Section defines the concept of suits by or against the government: Whenever a case is filed against a government or if it is filed by the government, the plaintiff
and the defendant who will be named in the case will be as provided under:

1. Whenever the case is instituted by or against the central government, the Union of India will be represented as the required plaintiff or defendant respectively.
2. Whenever the suit is filed by or against the state government, the state government will be required to act as the plaintiff or the defendant.

Section 80 :

1. Nature and Object : The object laid down by this Section is- there should be an opportunity conferred on the part of the Secretary of the State or the Public officer
to reconsider his legal position in order to make amends or settle down the claim if so advised. This can further be done without litigation or afford restitution or
without recourse to court of law. Whenever a statutory notice is issued to public authorizes, they are required to further take notice in all seriousness and they are
not required to sit over it and force the citizen to the redundancy of litigation.
2. Contents of the Notice : Notice under Section 80, is required to contain the following aspects: name, description, residence of the plaintiff, the cause of action and
lastly the relief which the plaintiff claims. Also, the notice is required to convey to its recipients, sufficient information to enable him to consider the claim, which was
held in Union of India v. Shankar Stores[10]. The above-mentioned particulars should be given in such a way that, it enables the authorities to identify the person
giving the notice.
3. Effect of Non-Compliance : Non-compliance with the requisites of this Section or any omission in the plaint which is required would result in the rejection of the
plaint under Order 7, Rule 11. If the suit is against a public official and a private individual, and no notice is served on the public officer, the plaint is not to be
rejected but the suit is carried on with the name of the public officer struck off.
4. Waiver of Notice: As the requirement of the notice is just procedural and not substantive, and as it is for the benefit of the public officer or the government, it is
open to government and public officers to waive it. If the defendant wants to rely on the invalidity of the notice, it is for him to raise a specific issue on the point, this
was held in the case of Lalchand v. Union of India.

Conclusion: It can be said that the applicability of these sections must be determined by the law as it stands. Further, if the procedure lay down by the rule in these sections is
not followed, then the court is to proceed with the footing that there is no appearance of government pleader on behalf of the public officer. And lastly, the rules laid down in
Order 27 are to be strictly abided by while filing a suit.

Q39- Explain the meaning of the term execution and discuss various modes of execution under the code.

Ans : Execution is the medium by which a decree-holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. It enables the
decree-holder to recover the fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by
judgment, decree or order. Execution is the last stage of any civil litigation. There are three stages in litigation:

1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.
Implementation of litigation is also known as execution. A decree will come into existence where the civil litigation has been instituted with the presentment of the plaint. The
decree means operation or conclusiveness of judgment. Implementation of a decree will be done only when parties have filed an application in that regard. A decree or order
will be executed by the court as facilitative and not an obligation. If a party is not approaching the court, then the court has no obligation to implement it suo motu. A decree will
be executed by the court which has passed the judgment. In exceptional circumstances, the judgment will be implemented by another court which is having competency in that
regard.

Mode for execution : The code lays down various mode of execution. After the decree-holder files an application for execution of decree, the executing court can enforce
execution.

1. Arrest and Detention : One of the modes of executing a decree is arrest and detention of the judgment-debtor in civil imprisonment. Where the decree is for
payment of money, it can be executed by arrest and detention of the judgment-debtor.
2. Attachment of Property : A decree may also be executed on the application of the decree-holder by attachment and sale the only sale without attachment of
property. The code recognizes the right of the decree-holder to attach the property of the judgment debtor in execution proceeding and lays down the procedure to
effect attachment. Sections 60to 64 and Rules 41 to 57 of Order 21 deals with the subject of attachment of property. The code enumerates properties which are
liable to be attached and sold in execution of a decree. It also specifies properties which are not liable to be attached or sold. It also prescribes the procedure
where the same property is attached in execution of decrees by more than one court. The code also declares that a private alienation of property after attachment is
void.
3. Percept : Section 46– “precept” means a command, an order, a writ or a warrant. A percept is an order or direction given by court which passed the decree to a
court which would be competent to execute the decree to attach any property belonging to the judgment-debtor. Section 46provides that court which passed a
decree may, upon an application by the decree-holder, issue a percept to that court within whose jurisdiction the property of the judgment-debtor is lying to attach
any property specified in the percept. A percept seeks to prevent alienation of property of the judgment-debtor not located within the jurisdiction of the court which
passed the decree so that interest of the decree-holder is safeguarded and protected.
4. Garnishee Order : It is the proceeding by which the decree-holder seeks to reach money or property of the judgment-debtor in the hands of a third party (debtor of
judgment-debtor). Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may require A not to pay money owed by him to B, but
instead to pay C, since B owes the said amount to C, who has obtained the order.

Q40- Explain the provisions regarding the condonation of delay and exclusion of time in computing the period of limitation under the Limitation Act 1963.

Ans : The law prescribes different periods within which a person who has a grievance should go to court. For example, if somebody has borrowed your money and not returned
it, you should approach the court within three years from the date you lent the money. If you don’t go to the court within that time, the courts will not be of help to recover your
money. This is called the limitation period. After the limitation period, you cannot enforce your rights in a court. The Limitation Act 1963 prescribes different limitation periods for
different kinds of claims. Some other Acts such as the Consumer Protection Act also prescribe limitation periods. The code of civil procedure, 1908 has been able to strike a
balance between the rights and duties of plaintiffs and defendants in any civil suit. If the judgment debtor is unable to appeal within the specified time against the decree in a
suit, then the decree holder gets a right. The courts should not be blithe so as to tamper with the legal right so acquired. The condonation of delay in filing the appeal is not a
matter of right for the aggrieved party. Even if the party is able to sufficient cause, the courts have a discretionary power to condone the delay, but such discretion cannot be
arbitrary and whimsical.

General Principles To Be Followed : The Supreme Court also gave certain principles which the Courts are bound to follow while adjudicating upon the issue relating to
condonation of delay. These are
1. Ordinarily, a litigant must not stand to benefit from filing a late appeal.
2. If the delay is condoned, the maximum that can happen is that a case would be decided normally after hearing the parties involved. But on refusing condonation,
there is a chance that a meritorious matter would be thrown out on the basis of technicalities.
3. There is no need of taking a pedantic approach in dealing with explanation of delay. The doctrine has to be applied in a rational and pragmatic manner.
4. If the courts have to choose between substantial justice and technical considerations, substantial justice should be preferred since the other side cannot contend to
have superior right in injustice being done under a bona fide mistake.
5. The court should not presume that the delay is occasioned deliberately or on account of mala fides or the applicant is guilty of culpable negligence since no litigant
takes recourse to delay the filing of his application.

Condonation Of Delay Is Matter Of Discretion Of The Court : Section 5 does not say that such discretion can be exercised only if the delay is within a certain limit. The
number of days of delay does not matter, the court has to look whether the aggrieved party is able to reasonably justify the time of delay. Sometimes the delay of shortest range
may be unpardonable due to want of acceptable explanation whereas in certain other cases, delay of very long period can be condoned where the explanation thereof is
satisfactory.

Sufficient Cause For The Purpose Of Non Appearance Of The Parties : Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for
which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of
each case.

Sufficient Cause With Regard To Stay Of Execution Of Decree : Mere filing of an appeal would not operate as stay of execution of decree, but the Appellate Court may, for
“sufficient cause” order stay of execution of decree. Also, the stay order if any granted takes practical effect only on the communication. All the three aspects indicated in Clause
(3) of Order 41, Rule 5 of the Code together with the “sufficient cause” contained in Clause (1) of Order 41, Rule 5, are required to be taken into consideration by the Appellate
Court while granting or refusing stay. The necessary aspects have been stated herein below:

(1) Whether there will be substantial loss to the party applying for stay:

(2) Whether the application has been made without unreasonable delay; and

(3) Whether surety has been given by the applicant for due performance of the decree.

Sufficient Cause With Regard To Application For Adjournment : Granting adjournments liberally is not the intention of the Legislature and it is against the public policy of
early disposal. Courts must not succumb to delaying tactics by granting adjournment in lighter.

Conclusion

The judiciary in India has been very lenient and has ruled in favour of the judgment debtor even in cases where the cause shown for condonation of delay by the aggrieved
party was far from sufficient. The justification can be that the courts do not want a meritorious matter to be thrown out on technical grounds and some delay in filing. But at the
same time, the huge backlog of cases is a result of this leniency only.

Q41-What is interim order?


Ans : Interim or interlocutory orders are those order passed by a court during the pendency of a suit or proceeding which do not determine finally the substantive rights and
liabilities of the parties in respect of the subject matter of the suit or proceeding. After the suit is instituted by the plaintiff and before it is finally disposed of the court may make
interlocutory orders as may appear to the court to be just and convenient. They are made in order to assist the parties to the suit in the prosecution of the case or for the purpose
of protection of the subject matter of the suit. The term ‘interim order’ refers to an order passed by a court during the pendency of the litigation. It is generally passed by the Court
to ensure Status quo. The rationale for such orders to be passed by the Courts lie are best explained by Latin legal maxim “Actus curiae neminem gravabit” which translated to
(English) stand for “an act of the court shall prejudice no one”. Therefore to ensure that the interests of none of the party to the litigation are harmed, the court may pass an
interim order.

Q42- When the summons to be issued to witnesses?

Ans : A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is
proposed to be summoned. The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those
whose names appear in the list filed by parties, if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Based on the request
by parties through list submitted or otherwise, issues summons to witnesses to appear for presenting evidence or to produce the documents.

Q43- What are the consequences of non-appearance of the plaintiff at the date of hearing?

Ans: Where the defendant appears and the plaintiff does not appear and the defendant does not admit the plaintiff’s claim, wholly or partly, the court shall pass an order
dismissing the suit. But if the defendant admits the plaintiff’s claim as a whole or a part thereof, the court will pass a decree against the defendant upon such admission and
dismiss the suit for the rest of the claim.

Q44- Commissions

Ans : Commission is instruction or role given by the Court to a person to act on behalf of the Court and to do everything that the Court requires to deliver full and complete
justice. Such person who carries out the commission is known as a Court commissioner. For example, whenever the Court has to do a local investigation, a commissioner is
appointed who conducts the local investigation. Similarly, to record the evidence of a witness who cannot come to the Court for evidence, the Court can issue a commission for
recording of such evidence. Generally, there is a panel of commissioners which is formed by the High Court in which advocates are selected who are competent to carry out the
commission issued by the Court. The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it. Such a person
should have the requisite skills to carry out the commission.

Procedure for appointment of commissioner : Every High Court has the power (Article 227) to make rules and regulations which is to be followed by the subordinate Courts.
Procedure for appointment of a commissioner is provided in High Court rules each state. The following procedure is followed by the Delhi High Court:

1. A panel of not more than 4 commissioners is to be formed which consists of young persons including a lady lawyer, appointed by the Court for recording of
evidence.
2. The District Court notifies the bar about the number of vacancies of commissioners and the bar forward the applications received for the same to the Court who
then forwards it to the High Court with their recommendation.
3. The term of such appointment is generally 3 years which can be extended by an order of the High Court but no commissioner can be appointed after 6 years of
such appointment.

Q45- Period excluded in period of limitation

Ans: Section 12 of the Limitation Act, 1963 provides that:

1. In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
2. In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment
complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall
be excluded.
3. Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time
requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.
4. In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

As per explanation given under Section 10, in computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to
prepare the decree or order before an application for a copy thereof is made shall not be excluded.

Q46- Cause of Action

Ans : The term Cause of Action refers to a set of facts or allegations that make up the grounds for filing a lawsuit. A Cause of Action is therefore by its very nature essential to a
Civil Suit, since without a Cause of Action a Civil Suit cannot arise. The term Cause of Action is mentioned in the Civil Procedure Code, 1908 in various places. The first such
instance is in Order I Rule 8 where in the explanation it is written that the parties being represented in the suit need not have the same cause of action as the person they are
being represented by. The fact that a Cause of Action is essential to a suit is represented in Order II Rule 2 of the Code wherein it is stated that a plaint must mention the cause
of action if it is to be instituted as a suit. Order VII Rule 1 reaffirms the same. To pursue a cause of action, a plaintiff pleads or alleges facts in a plaint, the pleading that initiates a
lawsuit. A cause of action is said to consist of two parts, legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant).
Sometimes cases arise where the facts or circumstances create Multiple Causes of Action. There are a number of specific causes of action, including: contract-based actions;
statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as
unjust enrichment and quantum meruit.

Q47- Bar of Limitation

Ans : As per section 3 of Limitation Act 1963, Subject to the provisions contained in sections 4 to 24 (inclusive) every suit instituted, appeal preferred, and application made
after the prescribed period shall be dismissed although limitation has not been set up as defence. he Code of Civil Procedure confers a right to appeal, but does not prescribe a
period of limitation for filing an appeal. The Limitation Act, 1963, however, provides the period of filing up appeals. It states that the appeals against a decree or order can be
filed in a High Court within ninety days and in any other court in thirty days from the date of the decree or order appealed against. It is for general welfare that a period be put on
litigation. Further, it is a general principle of law that law is made to protect only diligent and vigilant people. Equity aids the vigilant and not the indolent. Law will not protect
people who are careless about their rights. (Vigilantibus non domientibus jur A subventiunt). Moreover, there should be certainty in law and matters cannot be kept in suspense
indefinably. It is, therefore, provided that Courts of Law cannot be approached beyond fixed period. In civil matters, the limit is provided in Limitation Act, 1963. The ‘Law of
Limitation’ prescribes the time-limit for different suits within, which an aggrieved person can approach the court for redress or justice. The suit, if filed after the exploration of
time-limit, is struck by the law of limitation. It’s basically meant to protect the long and established user and to indirectly punish persons who go into a long slumber over their
rights.

Q48- Suit by Indigent person

Ans : A person is an indigent person: (1) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject of the
suit) to enable him to pay the fee prescribed by law for the plaint in the suit proposed to be instituted by him, or (2) where no such fee is prescribed, if he is not entitled to
property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit. (Order XXXIII, Rule 1, Expln. I).
A person to be entitled to sue as an indigent person has to obtain permission to sue as such by the court. The application for permission must contain the particulars required in
regard to plaints and a schedule of the property, movable and immovable, belonging to the applicant, with the estimated value thereof, and it should be signed and verified as if
it were a plaint.

Rejection of application: The court shall reject an application for permission to sue as an indigent person—

1. Where it is not properly framed and presented in the manner prescribed by Rules 2 and 3, i.e., full particulars as detailed above are not given or where the
application is not presented by the proper person; or
2. Where the applicant is not an indigent person; or
3. Where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission
to sue as an indigent person, provided that such an application shall not be rejected if after taking into account the value of the property disposed of by the
applicant, the applicant would be entitled to sue as an indigent person; or
4. Where his allegations do not show a cause of action; or
5. Where he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such
subject-matter; or
6. Where the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force; or
7. Where any other person has entered into an agreement with him to finance the litigation. (Order XXXIII, Rule 5).

Q49- What are the silent features of Law of Limitation ?

Ans : The Limitation Act of 1963 contains 32 Sections and 137 Articles. Schedule to the Limitation Act, 1963 is divided into three divisions. First division deals with Suits
(Articles 1 to 113), Second division deals with Appeals (Art. 114-117) and the Third division deals with Applications (Art. 118-137). Again the First division is divided into ten
parts:

1. Part I relating to accounts (Arts. 1-5); (ii) Part II relating to contracts (Arts. 6- 55); (iii) Part III relating to declarations (Arts. 56- 58); (iv) Part IV relating to decrees and
instruments (Arts. 59-60); Part V relating to immovable property (Arts. 61-67); (vi) Part VI relating to movable property (Arts. 68-71); (vii) Part VII relating to tort (Arts.
72- 91); (vii) Part VIII relating to trusts and trust property (Arts. 92-96); (ix) Part IX relating to miscellaneous matters (Arts. 97-112); and (x) Part X suits for which there
is no prescribed period (Art. 113).
2. No uniform of limitation for suits under the classifications has been attempted.
1. The limitation period is reduced to 30 years from 60 of the Act IX of 1908 in the suits of:
Suit by the mortgagor for the redemption or recovery of possession of the immovable property mortgaged;
Suits by mortgagees for foreclosure; and
Suits by or on behalf of the Central Government or any State Government including the State of Jammu and Kashmir.
2. A longer period of 12 years has been prescribed for various kinds of suits relating to immovable property, trusts and endowments.
3. A period of 3 years has been prescribed for suits relating to accounts, contracts, and declarations, suits relating to decrees and instruments and suits
relating to movable property.
4. A period varying from 1 to 3 years has been prescribed for suits relating to torts and miscellaneous matters and for suits for which no period of limitation
has been provided elsewhere in the Schedule to the Act.
5. The minimum period of seven days of the Act IX of 1908 for an appeal against the sentence of death passed by Court of Session or a High Court in the
exercise of its original jurisdiction has been raised to 30 days from the date of sentence.
3. The Limitation Act, 1963 has avoided illustrations on the suggestion of the Third Report of the Law Commission on the Limitation Act of 1908 as the illustrations are
unnecessary and often are misleading.
4. The range of the Limitation Act, 1963 has been considerably widened to include almost all Court proceedings. The extended definition of ‘application’ has been
given so as to include any petition, original or otherwise. The change in the language of Sections 2 and 5 of the Limitation Act, 1963 includes all petitions and also
applications under special laws.
5. The definitions of ‘application’, ‘plaintiff and ‘defendant’ have been enlarged in the new Act so as to include not only a person from whom the ‘applicant’, ‘plaintiff,
or ‘defendant’ as the case may be, derives his title but also a person whose estate is represented by an executor, administrator or other representative.
6. Sections 86 and 89 of the Civil Procedure Code require the consent of the Central Government before suing foreign rulers, ambassadors and envoys. The
Limitation Act, 1963 provides that the time obtained for obtaining such consent shall be excluded for computing the period of limitation for filing such suits.
7. The new law of limitation in terms of Limitation Act, 1963 does not make any racial or class distinction since both Hindu and Muslim law are available to the law of
limitation as is presently existing in the statute book. In Syndicate Bank v. Prabha D. Naik, (AIR 2001 SC 1968) the Supreme Court has observed that the law of
limitation in terms of Limitation Act, 1963 does not make any racial or class distinction.

Q50- State the provisions relating to the passing of decree. Laid down the various mode of execution of decree.

Ans : Defined under Section 2(2) of the civil procedure code, a decree is a formal expression which provides the determination of the interests of both the parties in a
conclusive manner with regards to any of the controversial matters or concerns of the particular civil suit. A decree may include rejection of a plaint or determination of any
question under section 144, but it does not include the following: any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default.

CONDITIONS FOR DECREE: There are a few basic conditions that have to be fulfilled so that an adjudication becomes a decree. They are:

There has to be a formal expression of adjudication. If a decree has not been drawn up, then there is absolutely no scope for an appeal from the judgment.
All adjudications arise from the institution of a suit. A suit arises by the filing of a plaint, and the most logical conclusion to a suit is the decree.
All rights of the parties with respect to any or all of the matters controversial in a suit must have been dealt with. If this has not been the case, then the same cannot
be deemed a decree.
This determination of the rights of the parties must be one that is conclusive and not open to future speculation. It must be complete, absolute and final.

AMENDMENT OF DECREE:

Under Section 152 of the CPC, any clerical errors with regards to decrees can be corrected by the courts themselves or on application by the plaintiffs. But according
to Section 153, the courts have a general power to amend, and may, at any time, as it deems fit, amend any error or defect proceeding in a suit. The corrections that the courts
are entitled to make are only relating to accidental omissions or clerical errors and not other errors which have been brought about due to gross negligence or mistake. But
before such a move, the court must be satisfied and it must be validly proven that such an error was something no more than an arithmetic error or a clerical mistake and
nothing that changes or alters the very functioning of the suit or nothing that is done under malice.

PREPARATION OF DECREE:

It is needless to say that the decree must be framed by the judge with utmost carefulness and impeccable clarity, leaving no ground for an obvious mistake.

The degree must be in consonance with the judgment and also should be clear, concise and precise. The nature and extent of the relief granted must be explained in great
detail, as also what each party is ordered to do. Such declaration of the rights of the parties must be accurate, simple and precise.

There are certain directions given with respect to decrees that have been mentioned below:

In case of possession of any agricultural land, a prior directive has to be issued with regards to whether or not the possession is with respect to the entire land,
wholly and immediately, or such possession can be effected only after removal of any crop standing on the property. This has to be confirmed in the decree.
In cases of decrees that reach the appellate court, the court by way of language shall affirm to the standards set by law, and should mention whether the decree of
the lower court stands affirmed, varied, set aside or reversed. In affirming the decree of a lower court, the terms of the decretal order shall be recited again, so as to
confirm it. In varying a decree, the relief granted should be spelled out. Similarly, while reversing a decree, the relief accorded presently must be confirmed again.

DECREE HOLDER:

“Decree-holder” means any person in whose favor a decree has been passed or an order capable of execution has been made

CONCLUSION:

A decree being the subset of judgment is a formal expression of the resolution of the controversies or bones of contention existing between the different parties to a contract. It is
common knowledge that rights may be procedural or substantive. But the rights proclaimed under a decree must be substantive and not merely procedural. However, a decree
may not pertain only to the merits of the case, it can also be on the grounds such as the character of the parties, settlement etc. Therefore, a decree is a formal expression of an
adjudication that determines the rights of parties pertaining to any or all of the controversies in a suit.

Q51- State and explain briefly the term ‘jurisdiction’ and place suing in the light of provisions of the Code of Civil Procedure 1908.
Ans : Jurisdiction (from the Latin ius, iuris meaning “law” and dicere meaning “to speak”) is the practical authority granted to a formally constituted legal body or to a political
leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. The term is also used to denote
the geographical area or subject-matter to which such authority applies. Jurisdiction draws its substance from public international law, conflict of laws, constitutional law and the
powers of the executive and legislative branches of government to allocate resources to best serve the needs of its native society. The District Court or Additional District court
exercises jurisdiction both on original and appellate side in civil and criminal matters arising in the District. The territorial and pecuniary jurisdiction in civil matters is usually set
in concerned state enactments on the subject of civil courts. The court exercises appellate jurisdiction over all subordinate courts in the district on both civil and criminal
matters. These subordinate courts usually consist of a Junior Civil Judge court, Principal Junior civil Judge court, Senior civil judge court (often called sub court)in the order of
ascendancy on the civil side and the Judicial Magistrate Court of IInd Class, Judicial Magistrate Court of Ist class, Chief Judicial Magistrate Court in the order of ascendancy on
the criminal side. Certain matters on criminal or civil side cannot be tried by a court inferior in jurisdiction to a district court if the particular enactment makes a provision to the
effect. This gives the District Court original jurisdiction in such matters. Appeals from the district courts lie to the High court of the concerned state..

S.15 to 21 CPC deals with the Court in which a suit is to be instituted, as follows:

S.15 -Court in which suits to be instituted : Every suit shall be instituted in the Court of lowest grade competent to try it. Here competency refers to pecuniary jurisdiction,
which shall be determined by High Court from time to time.

S.16- Suits to be instituted where subject matter situate : Subject to pecuniary and other limitations prescribed by any law, suits for: Recovery of immovable property with or
without rents and profits, Partition of immovable property, Foreclosure, sale, redemption in cases of mortgage or charge upon immovable property, Determination of any other
right or interest in immovable property, Compensation of wrong to immovable property, Recovery of movable property actually under attachment, shall be instituted in Court,
within the local limits of whose jurisdiction the property is situate.

S.17- Suits for immovable property situate within jurisdiction of different Courts : Where the subject matter of the suit, immoveable property, is situated within the local
jurisdiction of two or more different Courts, the suits may be instituted in any Court, within whose local jurisdiction, a portion of the property is situated, and Court is competent to
adjudicate over entire suit property, not just portion situated in its jurisdiction.

S.18- Place of institution of suit where local limits of jurisdiction of Courts are uncertain : When it is uncertain as regards under which of the two or more Courts, the
territorial jurisdiction falls into, and one of such Courts has also ascertained such uncertainty, then it may proceed to entertain and dispose the suit related to the property; after
recording the existence of such uncertainty. Where no such statement has been recorded and objection is raised in appeal or revision, the Higher Court will not allow such
objection unless at time of institution of suit, no reasonable ground for uncertainty as to Court was there, and, it has resulted in consequent failure of justice.

S.19- Suits for compensation for wrongs to person or movables : In case of wrong to person or moveable :- In place where Cause of Action arose or In place where the
defendant ordinarily resides or carries business or personally works for gain.

S.20- Other suits to be instituted where defendants reside or cause of action arises : Subject to afore said limitations, i.e Ss 15 to 19,every suit shall be instituted in Court
within whose local limits of jurisdiction:-

1. Defendant(s) at time of commencement of suit actually or voluntarily resides carries business or trade or personally works for gain.
2. any of the defendant ( if more than one) at time of commencement of suit actually or voluntarily resides carries business or trade or personally works for gain,
provided (a) Court gives leave to do so (b) Defendants who don’t reside there accept.
S.21-Objections to jurisdiction: No objection as to place of suing is allowed in any Appellate or Revisionary Court, unless such objection was taken in the Court of first
instance at the earliest possible opportunity. And in cases where settlement is arrived, at or before, such settlement and if there has been a consequent failure of justice. No
objection as to competence of Court as to pecuniary jurisdiction will be allowed at any appellate or revisionary Court unless, conditions mentioned above are satisfied. No
objection as to competence of executing Court will be allowed unless such objection was taken in the Court of first instance at the earliest possible opportunity and, there has
been a consequent failure of justice.

Q52- What are the rules relating to the pleadings? When can set-off and counter claim can be pleaded?

Ans: Pleadings form the foundation for any case in the court of law. It is a statement in writing filed by the counsel of plaintiff stating his contentions on the case, on the basis of
which the defendant shall file the written statement defending himself and explaining why the plaintiff’s contentions should not prevail.

Rules of Pleadings

The four words which can crisply summarise the rule of pleading is ‘Plead facts not law’. The counsel of both the parties should only project the facts in their respective case
rather than suggesting on the laws applicable in the particular case. To gain a crystal clear understanding of the same, the rules can be studied in two parts that is:

1) Basic or Fundamental Rules

2) Particulars or other rules

Basic or Fundamental Rules are discussed in the sub-rule (1) of Rule 2 of Order VI of the Code of Civil Procedure, 1908. Summarising the provision, the basic rules of
pleadings are the following:

1. Facts should be pleaded upon and not the law : This was first held in the case Kedar Lal v. Hari Lal where it was held that the parties are under the duty to state
the facts on which they are claiming their compensation. The court shall apply the law as per the stated facts to render the judgement. One should not assert or
apply any laws for claiming right on the stated facts.
2. Material facts should be pleaded : The second basic rule is to present facts which are material only. Immaterial facts shall not be considered. The question arose
in the court of law that what is the actual scope of ‘material facts’.
3. Evidence should not be included while pleading : It says that pleadings should contain a statement of material facts on which the party relies but not the
evidence by which those facts are to be proved.
4. Facts in concise manner should be presented : This is the last and final basic rule of pleadings. Compressed and crisp presentation must be adhered while
presenting the pleadings. At the same time it must be kept in mind that in order to maintain brevity of facts one should not miss out on important facts in the
pleadings. Pleadings can be saved from superfluity if one takes care in syntax.

SET-OFF: Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has a claim of some amount against the plaintiff what he do is he can claim
a set-off in respect of the said amount. This right of the defendant to claim set off has been recognized under Order 8, Rule 6 of the Code.

Essential Conditions for set-off: A defendant may claim a set-off, if:


The suit is for the Recovery of money;
The sum of money must be ascertained;
Such sum must be legally recoverable;
It must be recoverable by the defendant or by all the defendants, if not more than one;
It must be recoverable by the defendant from the plaintiff(s);
It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
Both the parties must fill in the defendant’s claim to set-off, the same character as they fill in the plaintiff’s

Effects of Set-off : When a defendant claims set-off, he is put in the position of the plaintiff as regards the amount claimed by him. Where the plaintiff doesn’t appear and his
suit is dismissed or he withdraws, it does not affect the claim for a set-off by the defendant and a decree may be passed in his favor if he is able to prove his claim.

Illustrations:

X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected to insure Y’s goods and is liable to him in compensation which he claims to set-off. The
amount not being ascertained cannot be set-off.
P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P for Rs. 1,000. The two claims being both definite, it may be set-off.

COUNTER CLAIM : Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the defendant in a suit against the plaintiff. It is a claim independent of and
separable from plaintiff’s claim which can be enforced by a cross section. Counter-claim can be set up in respect of action accruing to the defendant either before or after the
filing of the suit but before the defendant has delivered his defence or before the time fixed for delivery of his defence has expired. Such claim should not exceed the pecuniary
limits of the jurisdiction of the concerned court. The counter-claim is to be treated as a plaint and the plaintiff can file a written statement in answer to it. Counter-claim can be
filed after filing of written statement.

Q53- Essentials of Judgement

Ans : Every judgment should contain –

(a) a concise statement of the case

(b) the points for determination

(c) the decision thereon, and

(d) the reasons for such decision

Balram Taneja Vs Sunil Madan AIR 1999 SC 3381, in this case, the Supreme court held that a cannot merely say ‘suit decreed’ or ‘suit dismissed’. The whole process of
reasoning has to be set out for deciding the case one way or the other. The judgment need not, however, be a decision on all the issues in a case. Thus, an order deciding a
preliminary issue in a case, for example – constitutional validity of a statute, is a judgment.
Q54-Explain the provisions relating to summery suit.

Ans : Summary suit or summary procedure is given in Order XXXVII of Code of Civil Procedure, 1908 (herein after referred as CPC, 1908) whose object is to summaries the
procedure of suit in case the defendant is not having any defence.

Application & Scope This order is applicable to

1. All the suits upon bills of exchange, hundies, and promissory notes.
2. The suits wherein the plaintiff seeks to recover a debt payable by the defendant, arising either on a written contract or on an enactment where the sum sought to be
recovered is fixed or on a guarantee where the claim against the principal is in respect of a debt.[i]

A suit can be instituted under this order in High Court, City Civil Court, Court of Small Causes or any other Court notified by the High Court.[ii]

Institution : In order to institute a suit under this Order, it is necessary that the nature of suit must be among the one mentioned in the above paragraph. If the category is
satisfied, then the suit can be instituted by presenting a plaint in any Court. The plaint shall have to contain the specifications mentioned in Rule 2(1) of CPC.

Proceedings : Once the suit is instituted, summon of the suit as per Rule 2(2) of CPC along with a copy of the plaint and annexure will be sent to the defendant.
[iii] The defendant will not be defending the suit against him unless, he enters an appearance. In case of default in appearance, the allegations of the plaintiff in the plaint will be
deemed to be admitted and a decree in accordance to that will be issued by the Court.[iv]

Defendant’s Appearance : After summon is issued to the defendant, he has ten days to make an appearance. This appearance can either be in person or by a pleader.[v] At
any time within the prescribed period of ten days, the defendant by way of an affidavit or otherwise, can disclose such facts sufficient enough to entitle him the right to defend.[vi]

Conditions for Leave to Defend : In the case of Mechalee Eng & Mafrs v Basic Equip Corporation[vii], the court laid down certain principles for the appearance of the
defendant and his right to defend the suit in accordance with Rule 3 of Order XXXVII. These principles are to make sure that the defendant’s right to defend is not being taken
away from him and the principle of audi alteram partem is being followed and described what can be considered as sufficient facts to entitle the defendant right to defend and
the conditions are:

1. If the defendant satisfies the Court that he has a good defence to the claim on its merits.
2. If the defendant raises a triable issue indicating that he has a fair defence.
3. If the defendant discloses such facts as may be deemed sufficient to entitle him to defend.[viii]

Further, in case of Raj Duggal v Ramesh K. Bansal[ix], the court described what can be considered as a triable issue. Describing, triable issue the Court gave certain
conditions which need to be satisfied in order to constitute a triable issue:

1. There is a fair dispute to be tried as to the meaning of document on which the claim is based.
2. Uncertainty as to the amount actually due.
3. Where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross examine plaintiff’s witnesses.
Earlier, in the case of Santosh Kumar v Bhat Mool Singh[xi], the Court said that there can’t be any thumb rule formula to decide whether leave should be granted or not. It will
depend on the facts and circumstances of the case.

Passing of Decree In the case of summary proceeding, a decree will be passed in the following situations:

1. In case the defendant defaults in its appearance then the allegations of the plaintiff against the defendant will be deemed to be true and a decree in the favour of
plaintiff will be issued. As per the decree the plaintiff will be entitled to a sum which will not the exceed the sum mentioned in the summon, together with interest at
the rate which will be specified in the decree, up to the date of decree and any other sum for cost.[xiii]
2. In case the defendant is allowed to defend the case against the plaintiff, the Court may direct him to give security within a specified time and in case the defendant
defaults in payment of security within the prescribed time, then the decree will be passed in the favour of the plaintiff.[xiv]
3. In case the defendant is granted the right to defend and also deposits the security within the reasonable time, the suit will follow the ordinary course and the
defendant will be asked to file a written statement under Order VIII.

Setting aside of Decree : The Court has the power to set aside the decree that has been passed under the provisions of Order XXXVII. This power has been enshrined on the
Court by Rule 4 of Order XXXVII.

Q55- What is Summons? What are the mode of service of summons?

Ans : A summons is a legal document that is issued by a Court on a person involved in a legal proceeding. When a legal action is taken against a person or when any person
is required to appear in the court as a witness in a court proceeding, to call upon such person and ensure his presence on the given date of the proceedings, summons is
served. If the summons is not duly served then no action can be taken against the defendant. If defendant fails to attend court after receiving summons, he will be ex-parte by
the Court. Section 27 and Order V of the Code of Civil Procedure, 1908 (In short ‘CPC’) deal with ‘Service of Summons’ on the defendant/Respondent. Order 16 deals with
summoning and attendance of witnesses.

The Code prescribes four members of service of summons upon a defendant:

1. Personal or Direct Service: Rules 10 to 16 and 18 deal with personal or direct service of summons upon the defendant. This is an ordinary made of service of
summons. Here the following principle; must be remembered:
Where it is practicable, the summons must be served to the defendant in person or to his authorized agent (rule 12).
Where there are more defendants that one, service of the summons shall be made on each defendant (rule 11).
Where the defendant is absent from his residence at the time of service of summons may be served on any adult male member of the defendant’s family
residing with him (rule 15).

In all above cases, service of summons should be made by delivering or tendering a copy thereof.

2. Service by Affixation: Rule 17 specifies this method. When the defendant or his agent refuses to accept personal service of summons, this method is to be used
when the defendant or his agent refuses to accept personal service, the serving officer shall affix a copy of the summons to on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. Mere temporary absence of a
defendant from his residence or place of business does not justify service by affixation.
3. Service by Post: Rule 19B specifies that the court shall, in addition to, and simultaneously with, the issue of summons for personal service, also direct the
summons for personal service, also direct the summons to be serve, by registered post with acknowledgement due addressed to the defendant or his agent at the
place where the defendant or his agent actually and voluntarily resides or carriers or business.
4. Substituted Service: The Provision for substituted service is provided for in Rule 20 or order 5 of the C P C. Rule 20 specifies that in two situations the method of
substituted service may be restore to:

When there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or
When for any other reason summons cannot be served in the ordinary way.

Service in Special Cases:

Apart from the above four types of modes of service of summons rules 21 to 30 to deal with another mode of service which deal with service outside the Jurisdiction of the courts
etc.

In conclusion, it can be said that Summons has play an important role in that code of Civil Procedure, 1908.

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