CS Executive Civil Procedure Code, 1908

Judgment

‘Judgment’ means the decision given by a court. The grounds for it would already have been laid by the decree or the order on which the court bases its judgment. It is the final ruling given by a court with regard to a case.

Decree

‘Decree’ means the declaration given by the court as a decision in a suit as to the rights of a litigating party. It can be a preliminary decree or a final one.

Order

‘Order’ means a decision given by a civil court in a case; it is not a decree. It means a proclamation passed by the court that decides upon the legal relationship between parties and their inter se rights and liabilities.

Appeal

An ‘appeal’ is filed to a higher court if either the plaintiff or the defendant is not satisfied with the decision passed by the lower court. Appeals can lie from decrees or orders of the court.

Revision

‘Revision’ is when the High Court calls for the records of a case in which no appeal lies and if it feels that the lower court has passed a judgement which it is not entitled to pass for want of jurisdiction, or did not use its valid jurisdiction, or used it illegally or improperly.

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Review

‘Review’ means a reconsideration of the judgement given by a court in the form of a decree or an order. This is usually done when the person aggrieved with the judgement feels that the court has not given due consideration to the facts of the case, or when new facts are discovered, or when there is some obvious mistake in the records.

Res Judicata

This Doctrine prevents further suits being filed for a matter that is at the core of a former suit.
The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s).

Res sub judice

This doctrine implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in. This doctrine helps in avoiding duplicity of cases, and prevents opposing judgments being reached in same matters.

Set-off

‘Set off’ means a settlement where both the plaintiff and the defendant have some claims to be collected from each other. What one party owes to another might be used to discharge all or a part of the debt he is owed by the other party.

Counter claim

‘Counterclaim’ means a reverse claim made by one party against the other, where both claims are heard as part of the same proceedings.

Equitable set-off

It implies the rights of set-off arising from the same transaction instead of from different ones. Hence, the legal action takes the form of a single lawsuit instead of two different ones.

Temporary Injunctions

‘Temporary injunctions’, according to Order XXXIX of the Code of Civil Procedure, 1908, means an order passed by a court to restrain someone from doing something that would result in alienation of property, or its destruction, or when the plaintiff is in danger of being dispossessed altogether. Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it remains pending.

Interlocutory Orders

‘Interlocutory orders’ are orders passed by a court of law in a case where they feel an order should be given regarding a matter that needs to be resolved as soon as possible, or the value of the property in question would diminish. For example, the court may order sale of movable property even when the suit has not been resolved, if the property is subject to depreciation in value with the passage of time.

Summary Procedure

The summary procedure as specified under Order 37 of the Code of Civil Procedure, 1908 applies to suits on negotiable instruments like bills of exchanges, promissory notes and hundies. This is to expedite the redressal process and to bar the defendant from stopping the plaintiff from taking any action against him.

Cause of action

These are all the things that the plaintiff needs to prove in order to justify his right to a judgment in his favour. Under Order 2, Rule 2, of the Civil Procedure Code it means all the essential facts relating to his rights and their infringement.

Misjoinder

When there are multiple parties joined in one suit as plaintiffs or defendants who share no common question of law or fact, such a case would be termed as a case of ‘misjoinder of parties’. The Act prescribes two factors to avoid such misjoinders –

The right to relief must arise out of the same act or transaction brought by the plaintiffs or against the defendants,
Common question of law or fact.
The Code does not require that all the questions of law or of fact should be common to all the parties; it is sufficient that there is a single common question.

Misjoinder of Causes of Action

When the plaintiffs are not jointly interested in all the causes of action to a suit there can be said to be a misjoinder of causes of action. The objections regarding misjoinders of parties or of causes of action should be taken at the first hearing of the suit and before the settlement of causes unless the ground for objections had subsequently arisen, otherwise they might not later be allowed.

Distinguish Between

Question 1: Distinguish between the following: (iv) ‘Legal set-off’ and ‘equitable set-off’
Answer :

Difference between ‘Legal set-off’ and ‘equitable set-off’

There are various types of set-offs. One of these is an ‘equitable set-off’. It implies the rights of set-off arising from the same transaction instead of from different ones. Hence, the legal action takes the form of a single lawsuit instead of two different ones.

This type of right is allowed only when allowed by court; it is not there inherently.

Difference Between Legal Set off and Equitable set-off

Question 2: Distinguish between the following.
‘Set-off’ and ‘counter claim’

‘Review’ and ‘revision’.
Answer:

Difference between ‘Set-off’ and ‘counter claim’

Difference Between Set off and Counter claim

Difference between ‘Review’ and ‘revision’.

Difference Between Revision and Review

Question 3: Distinguish between review and revision under the Civil Procedure Code 1908.
Answer:

Difference between review and revision under the Civil Procedure Code 1908

The right of review has been conferred by Section 114 and Order 47 Rule 1 of the Civil Procedure Code ‘1908. lt provides that any person considering himself aggrieved by a decree or order may apply for a review of judgement to the court which passed the decree or made the order on any of the grounds as mentioned in Order 47 Rule 1, namely-

discovery by the applicant of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or
on account of some mistake or error apparent on the face of the record, or
for any other sufficient reason, and the Court may make such order thereon as it thinks fit.

Whereas Section 115 of the Civil Procedure Code 1908 deals with revision. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

to have exercised a jurisdiction not vested in it by law, or
to have failed to exercise a jurisdiction so vested, or
to have acted in the exercise of its jurisdiction illegally or with material ( irregularity, the High Court may make such order as it thinks fit.

Provided that the High Court shall not vary or reverse any order made or any order deciding an issue in the course of a suit or proceeding except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.

Descriptive Questions

Question 1: Explain the following: ‘Cause of action’ under the Code of Civil Procedure, 1908.
Answer:

‘Cause of action’ under the Code of Civil Procedure, 1908

The right of review has been conferred by Section 114 and Order 47 Rule 1 of the Civil Procedure Code 1908. It provides that any person considering ‘Cause of action’ as per the Code of Civil Procedure, 1908, includes everything that the plaintiff would have to prove in order to claim the right to file a suit in any court of law.

It includes anything that gives the plaintiff the right to file a suit in order to enforce his rights. It presupposes two things –

Firstly, that there was a right which accrued to the plaintiff.
Secondly, the right accruing to him was infringed, giving rise to a cause of action, i.e. a right to file a suit for the legal enforcement of his right.

Section 20(c) of the Code of Civil Procedure says that every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. That means that the cause of action entails the right to file a suit in the court within the local limits of which the cause of action arose.

Question 2: Attempt the following:
Explain the rules relating to delivery of summons by court under the Code of Civil Procedure (Amendment) Act, 2002.
Answer:

The rules relating to delivery of summons by court under the Code of Civil Procedure (Amendment) Act, 2002

As per Rule 9 of the Code of Civil Procedure (Amendment) Act, 2002-

Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.

The proper officer may be an officer of a Court other than that in which the suit is instituted, and where he is such an officer, the summons may be sent to him in such manner as the Court may direct.

The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court:

Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.

Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of Rule 21 shall not apply.

When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.

The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).

Mode of service.- Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the court.

Service on several defendants. Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.

Service to be on defendant in person when practicable, or on his agent.- Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.

Service on agent by whom defendant carries on business.-

In a Suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.

For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or charterer. Service on agent in charge in suits for immovable property.- Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.

Where service may be on an adult member of defendant’s family.- Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence. within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Explanation: A Servant is not a member of his family within the meaning of this rule.

Person served to sign acknowledgement. Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.

Procedure when defendant refuses to accept service, or cannot be found.

Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and ‘whose presence the copy was affixed.

Question 3: Discuss in brief the main remedies available to a person against whom ex parte decree is passed. (5 marks)
Answer:

Remedies available to a person against whom ex parte decree has been passed:

An ex parte decree is a decree passed in the absence of the defendant (in absentia). Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex parte and pass a decree against him.

Such a decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi parte decree and it has all the force of a valid decree.
Remedies

The defendant, against whom an ex parte decree has been passed, has the following remedies available to him:

Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115 where no appeal lies);
Apply for review: Order 47 Rule 1; or
File a suit on. the ground of fraud.

The above remedies are concurrent and they can be prosecuted simultaneously or concurrently. “Where two proceedings or two remedies are provided by a statute, one of them must not be taken as operating in derogation of the other.”

Question 4: Discuss the doctrine of ‘Res Sub Judice’ under Section 10 of Civil Procedure Code, 1908.
Answer:

Section 10 of the Code of Civil Procedure, 1908 covers the doctrine of res sub-judice. The doctrine of res sub-judice refers to a matter pending before a Judge, or Court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet.

The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other Court until it has been decided upon in the first Court the matter was filed in.

This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908). When such a case arises, generally a stay operates on the second or following suit.

The doctrine of res sub-judice refers to a matter pending before a Judge, or Court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet.

This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908). This doctrine, however, is not applicable if a suit is pending in a foreign Court; in such a situation, the Indian Courts can still initiate a case.

Question 5: In a civil case what remedies are available for the defendant against whom an ex-parte decree had been passed by the court?
Answer:

Remedies available to a person against whom an ex parte decree has been passed:

An ex parte decree is a decree passed in the absence of the defendant (in absentia). Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the Court may hear the suit ex parte and pass a decree against him.

Remedies:

The defendant, against whom an ex parte decree has been passed, has the following remedies available to him:

Apply to the Court by which such decree is passed to set it aside: Order 9, Rule 13;or
Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115 where no appeal lies);
Apply for review: Order 47, Rule 1; or
File a suit on the ground of fraud.

Question 6: The Civil Court has power to grant temporary injunction, but for obtaining the same the plaintiff is required to satisfy the Court. Explain in brief.
Answer:

The Civil Court has power to grant temporary injunction, but for obtaining the same the plaintiff is required to satisfy the Court

The Court may grant temporary injunction to restrain any such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation or sale or removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit; where it is proved by affidavit or otherwise:

that 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
that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, or
that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

It would be necessary for the plaintiff to satisfy the Court that (i) substantial and irreparable harm or injury would be suffered by him if such temporary injunction (till the disposal of the suit) is not granted (ii) the balance of convenience lies in his/her favour and (iii) that such loss or damage or harm cannot be compensated by damages.

Question 7: ‘Explain provisions of summary procedure’ including leave to defend under Civil Procedure Code. photodat
Answer:

Order 37 of the Civil Procedure Code provides for a summary procedure in respect of certain suits. The object is to prevent unreasonable obstruction by a defendant. A procedure by way of summary suit applies to suits upon bill of exchange, hundies or promissory notes, when the plaintiff desires to proceed under the provisions of Order 37.

The rules for summary procedure are applicable to the High Courts, City Civil Courts and Small Courts and such other Courts.

Leave to defend

Order 37 Rule 3 of the Civil Procedure Code prescribe the mode of service of summons etc. and leave to defend. The defendant is not entitled to defend the suit unless he enters an appearance within 10 days from the service of summons.

Such leave to defend may be granted unconditional or upon such term as the Court or the Judge may think fit. However, such leave shall not be granted where:

the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence or that the defences are frivolous or veracious, and
the part of the amount claimed by the plaintiff and admitted by the defendant to be due from him is not deposited by him in the Court.

On the hearing of such summons for judgement, the plaintiff shall be entitled to judgement provided the defendant has not applied for leave to defend or if such application has been made and is refused or where the defendant is permitted to defend but he fails to give the required security within the prescribed time or to carry out such other precautions as may have been directed by the Court.

After decree. the Court may. under special circumstances set-aside the decree and if necessary stay or set aside execution, and may give leave to the defendant to appear and to defend the suit. (Order 37 Rule 4)

Question 8: Explain the difference if any, in between ‘Res Judicata’ and ‘Res Sub-Judice’.
Answer:

the difference if any, in between ‘Res Judicata’ and ‘Res Sub-Judice’

The Rule of Res Sub Judice relates to a matter which is pending judicial enquiry while Res Judicata relates to a matter adjudicated upon or a matter on which judgement has been pronounced. Res Sub Judice bars the trial of a suit in which the matter directly or substantially is pending adjudication in a previous suit.

whereas rule of res judicata bars the trial of a suit of an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit between the same parties under the same title.

Res Judicata arises out of considerations of public policy viz., that there should be an end to litigation on the same matter. Res-Judicata presumes conclusively the truth of the former decision and ousts the jurisdiction of the

Court to try the case. It is however essential that the matter directly and substantially in issue must be the same as in the former suit and not matters collaterally or incidentally in issue.

Question 9: What do you understand by ‘set off’ and ‘counter-claim’ under the Civil Procedure Code, 1908? What is the effect of set-off?
Answer:

Set-off

Order VIII, Rule 6 of Civil Procedure Code, 1908 deals with set-off which is a reciprocal acquittal of debts between the plaintiff and defendant. It has the effect of extinguishing the plaintiff’s claim to the extent of the amount claimed by the defendant as a counter claim.

Under Order VIII, Rule 6 of Civil Procedure Code, 1908 where in a suit for the recovery of money the defendant claims to set off against the plaintiff(s) demand any ascertained sum of money legally recoverable by him from the plaintiff not exceeding the pecuniary jurisdiction of the Court and where both parties fill the same character as in the plaintiff is suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

Counter-claim

A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filling of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of claim for damages or not. Such counter-claim must be within the pecuniary jurisdiction of the Court. (Order VIII, Rule 6A).

Effect of Set-off

The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgement in respect both of
the original claim and of the set-off, but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

Question 10: How ‘Decree’ is defined under Section 2(2) of the Civil Procedure Code, 1908 and mention essentials of a Decree.
Answer:

Decree Order:
Decree is defined under Section 2(2) of the Code of Civil Procedure. It reads “decree means 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 and may be either preliminary or final”.

Formal expression of adjudication.
Conclusive determination of the rights of parties.
The decision or determination must be with regard to all or any of the matters covered under the suit.
Decision or adjudication must be a part of the suit.

Some other important points related to decrees may also be noted:

A decree may be partly preliminary and partly final.
A decree comes into existence as soon as the judgment is pronounced and not on the date when it is sealed and signed. (Order 20 Rule 7)
A decree is termed as preliminary when further proceedings have to be taken before the suit can be completely disposed of.
The preliminary decree is not dependent on the final, as it is previously passed and later facts might change the decision of the Court.
A final decree is dependent and subordinate to the preliminary decree, and gives effect to it.
The preliminary decree ascertains what is to be done while the final decree states the result achieved by means of the preliminary decree.
If the preliminary decree is set aside the final decree is automatically superseded, as the very base of the final decree is erased. Space to write important points for revision

Question 11: Elaborate the provisions of Civil Procedure Code, 1908 regarding suits by or against minors and what will be the impact after minor attains the age of majority?
Answer:

The provisions of Civil Procedure Code, 1908 regarding suits by or against minors

According to the Indian Majority Act, unless a particular personal law specifies otherwise, every person domiciled in India is deemed to have attained majority upon completion of 18 years of age.

However, in case a guardian has been appointed or declared by any Court of justice for a minor’s person or property, or both, before the age of 18 years, and in case of every minor the superintendence of whose property has been assumed by the Court of Wards, age of majority will be 21 years and not 18.

The following things need to be kept in mind in case of suits by or against minors:

If plaintiff is a minor:

For such a person to be able to file a suit, it is essential that it be done through the ‘next friend’, who will institute all suits on behalf of the minor. Such a person is to be a major and legally capable of acting on behalf of the minor.

If the interests of the next friend are contrary to those of the minor, he is automatically taken as a defendant, in case the minor is the plaintiff. Suits institutes without next friends of minors may be removed if the defendant applies for such removal.

If defendant is a minor:

The Court will provide a guardian for the person and his property, and to represent him in the suit. Such a person will hold the position until the culmination of the suit in the original or appellate Court(s), and be removed earlier only by reason of death or incapacity.

In case of minor attaining majority while the suit is ongoing, he can choose to continue with the suit or to discontinue the proceedings by withdrawing the suit.

Question 12: Whether in case of consent and compromise decree in between parties, principle of Res Judicata shall apply? Discuss.
Answer:

The Doctrine of Res Judicata

This Doctrine prevents further suits being filed for a matter that is at the core of a former suit. The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s).

Section 11 of the Code of Civil Procedure, 1908 deals with the doctrine of Res Judicata. The doctrine underlines the general principle that no one shall be twice vexed for the same cause, however, it does not apply in case of Consent and Compromise between parties, but depends on the Court, subject to the facts of the case.

Primarily, consents or compromise decrees do not come within the definition of decisions of Court. Rather, they are something to which both parties or all parties have willingly agreed to, and not under Court direction or guidance.

On the other hand, the Court puts its seal signifying its acceptance of the agreement the parties have come to. This doctrine applies to consent or compromise decree only when the dispute in question is finally determined by the consent or compromise, and the Court of this.

Question 13: What is Temporary injuction under the Code of Civil Procedure, 1908? Under what circumstances can it be granted? Discuss.
Answer:

Temporary injuction under the Code of Civil Procedure, 1908

The plaintiff needs to establish to the satisfaction of the court that the losses suffered by him would be irreversible, and of such a nature as cannot be compensated, if the injunction is not granted.

Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it remains pending.

A prima facie case and balance of convenience in the plaintiff’s favor are essential to get a temporary injunction issued.

Question 14: Discuss the provision of Civil Procedure Code, 1908 which prevents multiplicity of suits in respect of same cause of action.
Answer:

The provision of Civil Procedure Code, 1908 which prevents multiplicity of suits in respect of same cause of action

This is implicit in the Doctrine of Res Judicata. ‘The Doctrine of Constructive Res Judicata’ has been provided in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The reasons are as below

The same party should not be troubled with the same matter again and again.
There should be a limit to the number of cases filed in a court, i.e. vexatious cases should not be entertained.
The same matter should not be used for wasting valuable court time repeatedly.

The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s).

Question 15 It is well settled law that for grant of temporary injunction, three factors have to be satisfied, which are prima facie case, balance of convenience and irreparable loss. Discuss.

Answer:

Temporary injunctions: Temporary injunctions are those which are to continue until a specified time or until further orders of the court (Section 37 for the Specific Relief Act). It is ordered as an interim measure to preserve the status quo of the situation or the case until it is heard and finally decided.

Interlocutory or temporary injunction:

It may be granted at any stage of a suit and comes under the Civil Procedure Code. Such injunctions are necessarily provisional in nature. It does not finally declare or determine a right. The granting of temporary injunction is a discretionary right in the hands of the court.

Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it
remains pending.

A prima facie case and balance of convenience as well as proving that irreparable loss would occur if the situation is not remedied by a temporary injunction in the plaintiff’s favor are essential to get a temporary injunction issued.

However, it is upto the discretion of Courts. Generally such injunctions are given where a substantial question to be investigated, which has relevant related matter to be preserved intact till the conclusion of the investigation. Moreover, the Court considers the balance of convenience and inconvenience as relevant to both parties.

Question 16: Discuss the provisions relating to place of suing
Answer:

Place of Suing (Territorial jurisdiction):

Section 15 of the Code of Civil Procedure, 1908 provides that initially, cases are to be filed in the lowest court eligible to hear them. However, the section 15-18 of he Code are not a comment on the competency of the court; they merely exist to pinpoint the venue for reasons of ease and expediency.

As per the Section 16, subject to the pecuniary or other limitations prescribed by any law, the following property-related suits shall be filed in the Court within the local limits of whose jurisdiction the property is situated:

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-

for recovery of immovable property with or without rent or profits;
for partition of immovable property;
for foreclosure of sale or redemption in the case of a mortgage or charge upon immovable property;
for the determination of any other right to or interest in immovable property;
for compensation for wrong to immovable property.

Practical Questions

Question 1: A transport company has its head office at Kolkata and branch offices at Allahabad, Lucknow and Puri. A dispute cropped up between Hassan and the transport company in respect of a transaction through Allahabad office. Hassan files a suit in respect of this dispute against the company in a court at Puri. Is the court at Puri competent to decide this case? Give reasons.
Answer:

The suit can only be filed in Kolkata or Allahabad, but not in Puri, as per Section 20 of the Code of Civil Procedure.

The Civil Procedure Code 1908, Section 20, tells about where suits are to be instituted where defendants reside or cause of action arises.

the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
the cause of action, wholly or in part, arises.

Question 2: A suit was instituted by the plaintiff company alleging infringement by the defendant company by using trade name of medicine and selling the same colour combination, etc., as that of plaintiff company. A subsequent suit was instituted in a different court by the defendant
company containing the same allegations. Advise the plaintiff company about the steps to be taken by it giving reference to relevant legal provisions and case law. (5 marks)
Answer:

In this case, the plaintiff can file an application for a stay on the subsequent suit. ‘Stay of suit’ implies the action taken under Section 10 of the Code of Civil Procedure, 1908. It is the Doctrine of res sub-judice. The doctrine of res sub-judice refers to a matter pending before a judge, or court, or not yet decided.

It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet. The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in.

Question 3: ‘A’ is a warehouse-keeper. ‘Z’ going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. Discuss, when offence, if any, committed by A ?
Answer:

Criminal breach of trust: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. (Section 405, the Indian Penal Code, 1860).

In this case, A who is a warehouse-keeper is given some furniture for safekeeping by Z, who is going on a journey. The transaction is placed under a contract that says that the furniture shall be returned on payment of an agreed amount for warehousing space.

A dishonestly sells the goods. Hence, it can be derived that on so doing, A has committed criminal breach of trust as against Z.

Descriptive Questions

Question.1: Explain the following terms.
Answer:

Decree-holder – A decree holder is one in whose favour a decree has been passed or an order capable of execution has been made [Section 2(3)]. Hence, even a third person in whose favour an order capable of execution is passed, is a decree-holder regardless of the fact that he is not a party to the suit.

Judgment-debtor – This is the person against whom a decree or an order capable of being executed has been passed. The definition does not include legal representative of a deceased judgment-debtor [Section 2(10)].

Question.2: Which orders are appealable?
Answer:

The Code of Civil Procedure, 1908 provides for an appeal against the following orders, under Section 104

An order for compensatory costs in respect of untrue or vexatious claims or defenses (Section 35A)
An order for relief under Sections 91 and 92 of the Code of Civil Procedure, 1908, which cover public nuisances and other wrongful acts affecting the public and in the case of any suspected breach of any express or constructive trust of a charitable or religious nature.
In any suit in which an arrest or attachment has been effected or a temporary injunction granted under Section 95, where the aggrieved feels that he has been arrested on insufficient grounds.
An order under this Code inflicting a punishment of fine or arrest or detention, except where such arrest or detention is in execution of a decree. Other than these, any other order that is expressly stated as such in the Code of Civil Procedure, 1908, can be appealed against.

Question.3: Explain about the structures of courts, their jurisdiction and the venue of suits.
Answer:

Structure of Civil Courts

Section 3 of the Civil Procedure Code provides that High Court is superior to the District Court and the District Court is superior to all lower courts which also logically come under the High Court.

Jurisdiction of Courts and Venue of Suits

Jurisdiction is of three types – pecuniary, territorial and appellate. The limits of jurisdiction are imposed by charter, statute or a commission. If no such limit is specified, the jurisdiction is deemed to be unlimited.

A limitation on jurisdiction of a Civil Court may be of four kinds. These are as follows:

Jurisdiction over the subject matter e.g. family court, a small cause court etc.
Place of suing or territorial jurisdictione.g. a District Court can determine cases from within its own district, and not beyond.
Jurisdiction over persons Generally, all persons of whatever nationality are subject to the jurisdiction of the Civil Courts of the country except a foreign State, it’s ruler or its representative except with the consent of Central Government. For example, employees of consulates, diplomats etc.
Pecuniary jurisdiction depending on pecuniary value of the subject bay matter or the damages sought or the suit – This is applicable only when provided in the statutes. There is no limit on pecuniary jurisdiction of High Courts and District Courts.

Jurisdiction may further be divided into the following categories depending upon their authority or powers:

Original Jurisdiction – A Court can try and decide suits filed before it.
Appellate Jurisdiction A higher Court has the authority to hear appeals against the decisions or decrees passed by subordinate Courts.
Criminal and appellate Jurisdiction The Supreme Court, the High eure Courts and the District Courts have both original and appellate jurisdiction in various matters.

Section 9 of the Civil Procedure Code provides that Courts shall have jurisdiction or authority to try all suits of a civil nature excepting suits expressly or impliedly barred from their jurisdiction.

Question.4: Explain about the place of suing.
Answer:

Place of Suing (Territorial jurisdiction)

Section 15 provides that initially, cases are to be filed in the lowest court eligible to hear them.
As per the Section 16, subject to the pecuniary or other limitations prescribed by any law, the following property-related suits shall be filed in the Court within the local limits of whose jurisdiction the property is situated :
- for recovery of immovable property with or without rent or profits;
- for partition of immovable property;
- for foreclosure of sale or redemption in the case of a mortgage or charge upon immovable property;
- for the determination of any other right to or interest in immovable property;
- for compensation for wrong to immovable property;
- for the recovery of movable property actually distraint or attachment.

Section 17 provides that where immovable property is situated within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction the property is situated provided the value of the entire claim is summarized by such Court.

Section 18 says that where the local limits of jurisdiction of Courts are uncertain, then any of the said Courts may proceed to entertain the suit after having recording a statement laying down the grounds for such alleged uncertainty.

Section 19 says that where the suit is for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the Courts, ale akisqs

Section 20 provides that all other suits are to be instituted where defendants reside or where the cause of action arises, subject to the limitations provided by Sections 15, 16, 18 and 19, every suit shall be instituted in a Court within local limits of whose jurisdiction the defendant, or each of the defendants (where there are multiple) actually and voluntarily resides or carries on business or personally works for gain or where such defendants actually and voluntarily resides or carries on business or personally works for gain.

In the case of a body corporate or company it shall be deemed to carry on business at its sole or principal office in India, or in case of any cause of action arising at any other place, if it has a subordinate office, at that place.

Where there might be multiple competent courts which could entertain a suit consequent upon the cause of action having partly arisen within their jurisdiction, the parties to the contract can agree to vest jurisdiction in one such court to try the dispute.

Such an agreement would be valid al [Angile Insulations v. Davy Ashmore India Ltd.].

Question.5: Explain the doctrines of Res judicata and Res sub judice.
Answer:

The doctrines of Res judicata and Res sub judice

The doctrine of res sub-judice refers to a matter pending before a judge, or court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet.

The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in.

This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908).

The doctrine of ‘Constructive Res Judicata’ that is provided for in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The requirements and reasons are as below –

The same party should not be troubled with the same matter again and again.
There should be a limit to the number of cases filed in a court, i.e. vexatious cases should not be entertained.
The same matter should not be used for wasting valuable court time repeatedly.

The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s). Since this is not the case here, the subsequent suit will not be maintained and Aman will not succeed. (Mukunda Jana vs. Kanta Mandal) .

Question.6: What are the essentials of a decree?
Answer:

The following requirements constitute a decree –

Formal expression of adjudication
Conclusive determination of the rights of parties
The decision or determination must be with regard to all or any of the matters covered under the suit
Decision or adjudication must be a part of the suit.

Some other important points related to decrees may also be noted –

A decree may be partly preliminary and partly final.
A decree comes into existence as soon as the judgment is pronounced and not on the date when it is sealed and signed. (Order 20 Rule 7)
A decree is termed as preliminary when further proceedings have to be taken before the suit can be completely disposed of.
The preliminary decree is not dependent on the final, as it is previously passed and later facts might change the decision of the Court.
A final decree is dependent and subordinate to the preliminary decree, and gives effect to it.
The preliminary decree ascertains what is to be done while the final decree states the result achieved by means of the preliminary decree.
If the preliminary decree is set aside the final decree is automatically superseded, as the very base of the final decree is erased.

Question.7: What are the essential conditions for stay of a suit?
Answer:

The following conditions are essential for a stay on suits –

There have to be filed two suits at different points of time.
The matter in question in both suits has to be the same.
The parties to both suits must be the same.
The previous suit must be pending in an Indian court, at the time of filing of the second suit.

When all these conditions exist, the second suit is stayed till the conclusion of the first one. Moreover, the facts of the first case would be considered as res judicata in context of the second suit.

Question.8: What are the conditions for res judicata to be applicable?
Answer:

The following conditions make the applicability of res judicata a surety-

The matter should be substantially the same in both the suits.
The parties in both the suits have to be the same, either the original parties or the persons claiming under them.
The titles under which they are fighting the suit should be the same in both the cases.
The relevant court in the previous suit must be competent to hear the subsequent suit.
The issue of fact should be the same in both cases, either wholly or substantially.

Moreover, Section 12 of the Act puts a bar on any further suit where the plaintiff is prohibited from filing a fresh suit by certain rules, regarding a particular cause of action.

Question.9: When does the court ask for the deposit of money in any case?
Answer:

Deposit of money etc. in the Court

This is done in the following cases –

When money or some other article that is capable of delivery is the subject matter of a suit, and it is held by any party for another as a trustee.
It belongs or is due to another party. In these cases, the Court can also order it delivered to such last-named party, with or without security (Rule
(10).

Moreover, in certain cases, the plaintiff might apply to have the defendant restrained, to stop him from committing a breach of contract or other injury of any kind. It can be demanded either with or without compensation, at any time after the commencement of the suit, and either before or after judgment.

For this, an application for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like nature arising out of the same contract or relating to the same property or right is made to the relevant Court. This is a discretionary power of the Court.

Question.10: What are the essentials of a suit? Where can a suit be filed? even

Answer:

The essentials of a suit

A suit is a civil action, initiated by presenting a plaint. It is to be presented in duplicate to the relevant Court and should contain a concise statement as to the material facts, on which the party pleading relies for his claim or defence.

These facts are to be proved by an affidavit.

The main essentials of the suit are-

A heading
A title
The body of the plaint and
The relief(s) claimed.

The following points are to be kept in mind regarding the filing of a suit –

Every suit is to be instituted in the Court of the lowest grade competent to try it.
Competency of the Court has to be determined with regard to the subject matter either immovable or movable property or to the place of residence or of business of the defendant.T
A suit for a tort may be brought either where the wrong was committed or where the defendant resides or carries on business.
A suit for a breach of contract may be instituted in a Court within the local limits of whose jurisdiction the defendant or each of the defendants (where there are multiple) at the time of commencement of the suit actually or voluntarily resides or carries on business or personally works for gain, or where any of the defendants so resides or works for gain or carries on business provided the permission of the Court is given or that the other defendants agree to it.
A suit for breach of contract may also be instituted where the cause of action arises that is, where the contract was made or where the breach was committed.
A suit for recovery of immovable property can be instituted in a Court within the local limits of whose jurisdiction the property or any property of it is situate.
Regarding other suits, they shall be instituted in a Court within the local limits of whose jurisdiction:
- the defendant or each of the defendants if there are more than one at the time of the commencement of the suit actually or voluntarily resides or carries on business or personally works or gain or
- any of the defendants, where there are more than one at the time of the commencement of the suit, actually or voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
- the cause of action wholly or in part arises.

Question.11: What is ‘discovery’ and ‘discovery by interrogatories’?
Answer:

‘Discovery’ and ‘discovery by interrogatories’

Discovery and interrogatories and production of documents

‘Discovery’ means finding out important facts, documents and material from the counter-party so that the case can be prepared. It also helps in pin-pointing the points at issue. Discovery can be achieved in two ways (a) by interrogation (b) by study of documents.

The main purpose of discovery is to:

Find out what the details and material facts of the adversary’s case.
Attain admissions of the adversary, so that own case can be benefitted.
This can also have the indirect effect of impeachment or logical one destruction or deconstruction of the adversary’s case.
Narrow down the points at issue, so that specific points can be focused upon.
Avoid unnecessary cost, time and effort in proving facts that have already been admitted.

Discovery by interrogation

A party to a suit can apply to the Court for permission to examine or interrogate the opposite parties. The court may not, however, allow this for the following purposes:

For discovery of facts related solely to the evidence of the adversary’s case or title, for this would weaken his case.
To question about confidential communications between the other party and his lawyer.
To obtain revelations that might be injurious to public interests.
To interrogate in a ‘fishing’ nature i.e. without asking specific and relevant questions, and instead resorting to oblique questioning in the hope of obtaining something useful. Such enquiry, being purely of a speculative nature, will not be allowed.

Discovery by examining documents

Parties are required to submit additional copies of all documents that they submit to the Court, so that they can be forwarded to the other parties. These documents can then be used for discovery of information that might be relevant to the case.

A party may also apply to the Court for an order instructing a party to the suit to make available documents that are in his possession for discovery of information on oath.

In case of refusal by the other party, such documents may not be allowed to be admitted as evidence by the Court (O.11, R.15), unless the party is able to prove to the Court that such documents relate only to his own title.

Refusal to produce the document for inspection can be made on the following grounds:

Where it divulges a party’s evidence untimely or prematurely
When it is protected by a legal/professional privilege
When it is injurious to public interest
When the party claims not to have possession of the document in question.

Such denial can only be affected by an affidavit; thereupon the other party demanding that document cannot cross-examine upon it, nor cite evidence to contradict it, because in all questions of discovery the oath of the party in possession of the document is deemed to be conclusive (Kedarnath v. Vishwanath).

Distinguish Between

Descriptive Questions

Practical Questions

Descriptive Questions

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