UNIT 1 and UNIT 2

SYNOPSIS: INTRODUCTION TO CIVIL PROCEDURE CODE

- History of Code of Civil Procedure, 1908:

Prior to 1859, different procedure followed by different civil courts. First Code of Civil
Procedure enacted in 1859. The bulk of Code of Civil Procedure as in force today was
enacted in 1908. Subsequently the Code of Civil Procedure has been amended in 1976,
1999 and 2002 which made significant changes to the Code of Civil Procedure, 1908.

- Object of Code of Civil Procedure, 1908:

The object of Code of Civil Procedure – Preamble: to consolidate and amend laws
relating to procedure of courts of civil judicature.
Consolidation Acts presumed to not intend change in the previous laws.
- Extent of Code of Civil Procedure, 1908:
It extends to territory of India except States of Jammu & Kashmir, Nagaland, tribal areas.

- Applicability of Code of Civil Procedure, 1908:

The Code expressly saves local or special laws by not limiting their applicability in its
Sections 4, 5, 7.

- Interpretation of Code of Civil Procedure, 1908:

The Code being a law of procedure ought to be interpreted liberally and harmoniously
with the substantive laws. The interpretation should not be too technical or too strict.
Purpose of procedural laws is to enforce the substantive laws, interpretation of procedural
laws ought to be so as to effectively enforce substantive laws and not to defeat the
substantive laws.
The Code of Civil Procedure contains 158 Sections (amendable by Legislature only) and
51 Orders (amendable by High Courts under Section 125 CPC). The Sections and Rules
under the Orders are to be interpreted harmoniously. If Rules are found to be inconsistent
with the provisions of Section, the latter prevails
- Difference between Substantive Laws and Procedural Laws:
i. Substantive laws determines/affects vested rights or obligations of person.
Procedural laws provide machinery for enforcement of those vested
rights/obligations.
ii. Substantive laws create/take away vested rights/obligations. Procedural laws do
not create/take away any vested rights/obligations.
iii. Substantive laws are to be interpreted strictly; Procedural laws are interpreted
liberally and harmoniously with substantive laws.
iv. Substantive laws cannot be retrospective unless expressly provided as they affect
vested rights/obligations; Procedural laws may be retrospective and apply to
proceedings already commenced.
 v. Substantive Laws: Constitution, Contract Act, Transfer of Property Act, Indian
Penal Code; Procedural Laws: Code of Civil Procedure, Code of Criminal
Procedure, Indian Evidence Act, Limitation Act.

Stages of suit (civil case):

- Legal notice
- Jurisdiction of courts (subject-matter, pecuniary, territorial, res subjudice, res judicata,
foreign judgment)
- Limitation Act
- Caveat
- Joinder of parties (representative suit), Joinder of causes of action
- Plaint
- Summons
- Appearance of parties & Alternate Dispute Resolution
- Written Statement
- First hearing & Issues
- Proceedings
- (interlocutory applications: commission, arrest & attachment before judgment, receiver
appointment, temporary injunction; Inherent powers, adjournment, affidavit)
- Revision, Reference
- Evidence – (admissions, documents: discovery, production, impounding, return;
witness: summons, examination)
- Withdrawal, Compromise, Abatement of Suit/Death of party
- Special Suits
- Costs & Interest
- Judgment & Decree & Order
- Execution
- Appeal, Review

Hierarchy of Civil courts:

• Supreme Court
• High Court
• District Court
• Court of Senior civil judge (Court of civil judge (sr. div)
• Court of civil judge (Court of civil judge (Jr. div) / Munsif court
• Small Causes court (Karnataka Small Causes Courts Act 1964) – separate hierarchy
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 SYNOPSIS: TERRITORIAL JURISDICTION OF CIVIL COURT/PLACE OF
SUING

 Suits relating to immovable property: Sections 16 to 18

Suits to be filed in court within whose local jurisdiction the property is situated for suits
for:
- recovery of immovable property with or without rent or mesne profits - partition of
immovable property - foreclosure, sale or redemption in case of mortgage or charge on
immovable property - determination of any other right or interest in immovable
property - torts to immovable property.
- Section 16. Suits to be instituted where subject-matter situate.
- Section 17. Suits for immovable property situate within jurisdiction of different
Courts.
- Section 18. Place of institution of suit where local limits of jurisdiction of Courts are
uncertain.
Inox AIR Products v Rathi Ispat AIR 2007 Del 53 - Suit for permanent injunction -
Territorial jurisdiction--Parties enter into an operation & maintenance agreement--plaintiff
s company registered at Mumbai--Defendant's company registered at New Delhi--Court
considered that the suit constitutes immovable property within meaning of 3(26) of General
Clause Act, 1897 read with Section 3 of Transfer of Property Act, 1882 and covered by
Section 16(a)& (d) of the CPC, the suit can only be instituted in a court within the local
limits of whose jurisdiction the property is situated--Hence, Court ordered to return plaint
to plaintiff--Suit disposed of.
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 Suits relating to movable property: Section 16(f) and 19.

State of Maharashtra v Sarvodaya Industries AIR 1975 Bom 197
Case Note:
The case dealt with the usage of phrase 'Wrong done' under Section 19 of the Civil Procedure
Code, 1908 - It was held that the said phrase under Section 19 of the Code would not only be
considered as an initial action complained of but would be considered as a resultant effect -
Section 19 of the Code, deals with the cases of compensation for wrong done to a person or
movable property - It is wide enough to take in those places where the plaintiff or person
complaining the actual suffered loss because of the alleged wrongful act notwithstanding the
place of such wrongful act clearly furnishing the place of action - Hence, the said phrase is
indicative of completed action and is wide enough to take in the results as the basis for the
purposes of restitution

Civil - Jurisdiction - Trial Court held that cause of action for purpose of damages would arise
only on proof of loss and place where loss was sufferred, i.e., place of business which was
affected would offer sufficient nexus for upholding jurisdiction - Hence, this Revision Petition
- Whether, Akola Court had territorial jurisdiction to try suit filed by Non-Applicant-Plaintiff
- Held, pleadings about cause of action, those were based on loss that was suffered by
Plaintiff within territorial limits of Akola Court because of wrongful intervention outside
limits of that Court - However unless there was proof of loss, no claim for damages or
compensation could at all be sustained - Mere allegation of wrong was not whole cause of
action - Further it was resultant effect that furnished cause of action - Therefore, damage that
was Suffered by Plaintiff was part of cause of action i.e. wrong done and that arose within
jurisdiction of Akola Court - Hence though complaint of Plaintiff was against action by
Defendant No. 2 being without limits of Akola Court, it followed that as he was affected by
that action for all purposes in his business within jurisdiction of that Court all requirements of
Section 19 of C.P.C had been fully answered and suit was properly laid in Akola Court - Thus
Akola Court had territorial jurisdiction to try suit filed by Non-Applicant - Revision Petition
dismissed.

Ratio Decidendi - "Court shall have jurisdiction to try suit if there is proof of loss suffered by
person within territorial limits of that Court."
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 Suit for compensation for wrong to person: Section 19
Gokuldas Melaram v Baldevdas Chabria AIR 1961 Mys 188
Case Note:
Civil - Jurisdiction - Whether Court below had jurisdiction to entertain Respondent's suit for
recovery of damages? - Held, in present case, part of compensation claimed by Respondent
consists of expenses which he claims to have incurred for defending himself in criminal case
instituted by Petitioner in which Respondent got acquitted - If that is so, it cannot be said that
compensation claimed by him is in its entirely compensation for wrong done to his person -
Therefore, Court below was right in coming to conclusion that it had jurisdiction to try said
suit - Hence revision petition is dismissed.
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 Other suits: Section 20
i. where cause of action arose, wholly or in part; or
ii. where defendant resides, carries on business or works for gain; or
iii. if there are more than one defendants, where any one defendant resides, carries on
business or works for gain, provided leave of court is obtained or the other defendants
acquiesce to it.

Hakam Singh v Gammon Pvt Ltd AIR 1971 SC 740

Held - Since an application for filing an award in respect of a dispute arising out of the terms
of the agreement could be filed in the Courts in the City of Bombay, both because of the
terms of Clause 13 of the agreement and because the respondents had their. Head Office
where they carry on business at Bombay, the agreement between the parties that the Courts in
Bombay alone shall have jurisdiction to try the proceeding relating to arbitration was binding
between them

Patel Roadways v Prasad Trading AIR 1992 SC 1514 (jurisdiction ouster clauses in
agreement)
Civil - jurisdiction - Section 20 of CPC, 1908 - whether jurisdiction with Court where cause
of action arises or where head office of appellant situated - under Section 20 (a) to (c)
plaintiff has choice of forum and cannot be compelled to go to place of residence or business
of corporation and can file suit at place where cause of action arises - where corporation has
subordinate office in place where cause of action arises cannot say that it cannot be sued there
because not carrying on business at that place - in instant cases Section 20 (c) not attracted to
confer jurisdiction on Courts at place where principle office of appellant situated - appellant
has admittedly its subordinate office at respective places where cause of action arises - parties
could not confer jurisdiction on Courts at place where principle office of appellant situated by
agreement - appeal dismissed.

 Jurisdiction cannot be conferred by agreement between parties

Harshad Chiman Lal Modi v DLF Universal Ltd AIR 2005 SC 4446

Civil -Jurisdiction - Code of Civil Procedure, 1908 Order 6, Rule 17 and Section 16 -
Appellant entered into an agreement with respondent for purchase of plot situated in Gurgaon
- Head office of respondent was also situated in Gurgaon - Despite regular payment of
installments by appellant, a contract was unilaterally cancelled by respondent - Suit against
same was filed in Delhi High Court which was later on transferred to District Court, Delhi -
Question which arose for consideration was as to whether Delhi Civil court has jurisdiction to
try and entertain the present suit - District Court held in negative and returned the plaint to
appellant to be filed in appropriate case - Petition filed against same in High Court also
dismissed - Present appeal filed for challenging the same - Held, as per Section 16 a suit can
be instituted where the property is situated - Since the suit was for specific performance of
agreement and possession of immovable property situated outside the jurisdiction of Delhi
Court, the trial court was right in holding that it had no jurisdiction - Appeal dismissed.
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 Objections relating to territorial and pecuniary jurisdiction: Section 21
 objection be raised at the trial court level itself
 objection raised at the earliest possible opportunity in the trial court
 there has been consequent failure of justice.
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SYNOPSIS: TRANSFER OF SUITS

 Section 22:
Multiple courts with jurisdiction – defendant apply for transfer on conditions that:
 Application made at earliest possible opportunity
 Notice given to all other parties
 Court to consider objections of other parties, if any
 Court to which transfer of suit is sought must have jurisdiction to try the suit.
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  Section 23:
Application for transfer:
i. Courts subordinate to same appellate court, transfer application made to the said
appellate court
ii. Courts subordinate to different appellate courts but same High court, application to
the said High court
iii. Courts subordinate to different High courts, application to the High court under
whom the subordinate court lies where the suit is first filed.
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 Section 24: powers of High Court and District Court to transfer cases

Grounds for transfer:

Reasonable apprehension of denial of justice - mere suspicion or convenience of parties or no
objection from other parties not sufficient - Matrimonial cases: convenience of wife relevant.
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 Section 25: power of Supreme Court to transfer Expedient to secure ends of justice
If transfer application frivolous or vexatious - compensation to opposite party

Nisikant Sukerkar v. Govt. of India (2003) 2 SCC 289

Civil - Transfer petition - Petitioners are the legal heirs of the deceased who had filed an
application before the Govt. of India to include the mining concession of the deceased in the
1st schedule to Goa, Daman & Diu Mining Concessions (Abolition & Declaration as Mining
Leases) Act - Another writ petition filed praying for re-grant and disposal of applications
filed by petitioners - Both the petitions are in respect of mining concession granted to the
deceased and its subsequent cancellation - No prejudice would be caused to the parties in
case the writ petition pending before the Delhi High Court is transferred to the Bombay High
Court, Panaji bench - Transfer petition allowed

G.C. Care Centre & Hospital v. O.P. Care Pvt Ltd (AIR 2004 SC 2339)

Civil - Civil Procedure Code, 1908 - Sections 10 and 25 - Transfer Petition - Purchase of
Heart lung Machine along with accessories by Gupta Cardiac Care center and Hospital from a
German Company (manufacturer ) having its dealer in Delhi - Disputes arising between
parties as performance of machine not found to be satisfactory - Suit filed by plaintiff
Hospital at Nashik for recovery of Rs 28,35,000/- for return of advance paid, compensation
equivalent to additional amount spent by them for purchasing another machine and interest
on said two sums - Suit filed by dealer at Delhi for recovery of Rs 20,00,000 as balance price
of machine and interest - Suit filed by Hospital seeking transfer of suit at Delhi to Nashik
while suit filed by Dealer seeking transfer of suit at Nashik to Delhi - Two suits arising out of
same transaction - Issues arising for decision also same - Since only one of two suits could be
decreed, as decree in one suit in favour of plaintiff in that suit would entail dismissal of other
suit - Hence held that two suits deserved to be heard and tried in one Court as that would
avoid possibility of any conflicting decrees coming into existence - As suit at Nashik having
being instituted first in point of time, by reference to Section 10 CPC, trial of suit at Delhi
being latter suit held liable to be stayed - Direction given for transfer of suit pending in High
Court at Delhi to Court at Nashik
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SYNOPSIS : SUBJECT MATTER JURISDICTION OF CIVIL COURT

Section 9 of CPC provides that a civil court has jurisdiction to try a suit if two
conditions are fulfilled:

i. suit must be of civil nature

civil nature - principal question - determination of civil rights, enforcement - not
involving principally political and religious questions.
Explanation I – principal question civil nature - incidental questions relating to
caste or religious ceremonies – civil court jurisdiction not excluded.
Explanation II - Amendment Act, 1976 – whether fees attached to religious office
or not – not relevant.

Examples of suits of civil nature:

rights to property; rights of worship; damages for civil wrongs; specific
performance of contract or damages for breach of contract; restitution of conjugal
rights; suit for rent Examples of suits not of civil nature:
suits involving principally caste questions; purely religious rites or ceremonies;
upholding mere dignity or honour; suits against expulsions from caste.

ii. cognizance of such suit must not be expressly or impliedly barred.

a. suits expressly barred
specific express statutory provision
Example: Land Reforms Act, Cooperative Societies Act, Telegraph Act,
Electricity Act, State Municipalities Act, Motor Vehicles Act.

b. suits impliedly barred

Statute gives specific, adequate alternative remedy – civil court jurisdiction
impliedly barred. Example: Arbitration and Conciliation Act, Industrial Disputes
Act.
State of Kerala v. Ramaswami Iyer AIR 1966 SC 1738 - The case involved the suit to
recover tax that was paid in excess and debated on whether the Civil Court was barred to
try the said suit - It was observed that the Travancore-Cochin General Sales Tax Act,
1125 was a complete code that dealt with the levy, assessment, collection and refund of
tax and as such it cannot be held that the authorities of taxation had violated any
prohibition imposed by the Act - Thus the Civil Court had no jurisdiction to try the suit
that was filed for recovery of excess tax paid.
 Express or implied bar – civil court has jurisdiction – special statute provisions not
followed/infringed – fundamental principles of judicial procedure not followed –
alternative remedy not adequate – challenge to the special statute itself.

State of Tamil Nadu v. Ramalinga Samigal Madam - AIR 1986 SC 794

Property - Jurisdiction - Section 11 of Tamil Nadu Estates (Abolition and Conversion into
Ryotwari) Act, 1948 - High Court held that provision under Section 11 for ascertainment
of character of land and Civil Court's jurisdiction to adjudicate upon nature of land was
not taken away under Section 64-C of Act - Hence, this Appeal - Whether, Civil Court's
jurisdiction to adjudicate upon nature or character of land had been excluded - Held, any
order passed by Settlement Officer either granting or refusing to grant a ryotwari patta to a
ryot under Section 11 of Act must be regarded as having been passed for revenue
purposes - A person even after refusal of ryotwari patta would be entitled to protect his
possessory title and long enjoyment of land and seek an injunction preventing
Government's interference otherwise than in due course of law - Before granting such
relief Civil Court might have to adjudicate upon real nature of character of land - It was
difficult to imply ouster of Civil Court's jurisdiction simply because finality had been
accorded to Settlement Officer's order under Section 64-C of Act - Thus, High Court's
view that Civil Court's jurisdiction to adjudicate on real nature of land was not ousted
under Section 64-C - Appeal dismissed.

Dhulabhai v. State of M.P (AIR 1969 SC 78) - 7 principles:

1. If special statute providing alternate remedy, is not complied with/followed – civil
court has jurisdiction
2. If special statute expressly bars civil court’s jurisdiction, inadequacy of alternate
remedy is relevant, not decisive. If special statute impliedly bars civil court’s
jurisdiction, inadequacy of alternate remedy per se is decisive to confer jurisdiction
to civil court
3. If special statute provision challenged as ultra vires – civil court has jurisdiction
4. If special statute provision declared unconstitutional – civil court has jurisdiction
5. If tax statute has no provision for refund of excess tax collected – civil court
has jurisdiction
6. Challenge to assessment under tax statute in tax tribunal only unless
constitutionality of assessing provision in tax statute challenged – civil court has
jurisdiction
Exclusion of civil court’s jurisdiction not to be readily inferred
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SYNOPSIS: RES SUBJUDICE

Section 10 - conditions:
 i. Suit – subsequently filed – bar on proceeding with its trial
ii. Matter in issue in the subsequent suit - directly and substantially in issue in the other
pending suit also
iii. Same parties or representatives
iv. Same title
v. Previously instituted suit pending
vi. Court where former suit pending competent to try subsequent suit

National Institute of Mental Health & Neuro Sciences v. C. Parameshwara AIR 2005 SC
242
Case Note:
(1) Constitution of India - Article 226-Code of Civil Procedure, 1908-Section 10-Stay of suit-
Scope and applicability of Section 10-Whole subject-matter in both suits has to be identical-
Section 10 referable to suit instituted in civil court-Proceedings before labour court cannot be
equated with proceedings before civil court-Scope of writ petition entirely different and
distinct from suit-High Court erring in directing trial court not to proceed with drawing up
final decree.

The object of Section 10, C.P.C. is to prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect of the same matter in issue. The object
underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to
avoid recording of conflicting findings on issues which are directly and substantially in issue
in previously instituted suit. The language of Section 10 suggests that it is referable to a suit
instituted in the civil court and it cannot apply to proceedings of other nature instituted under
any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction
from simultaneously trying two parallel suits between the same parties in respect of the same
matter in issue. The fundamental test to attract Section 10 is, whether on final decision being
reached in the previous suit, such decision would operate as res judicata in the subsequent
suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is
identical. The key words in Section 10 are "the matter in issue is directly and substantially in
issue" in the previous instituted suit. The words "directly and substantially in issue" are used
in contra-distinction to the words "incidentally or collaterally in issue". Therefore, Section 10
would apply only if there is identity of the matter in issue in both the suits, meaning thereby,
that the whole of subject-matter in both the proceedings is identical.

Section 10, C.P.C. is referable to a suit instituted in a civil court. The proceedings before the
labour court cannot be equated with the proceedings before the civil court. They are not the
courts of concurrent jurisdiction. In the circumstances, Section 10, C.P.C. has no application
to the facts of this case.

(2) Code of Civil Procedure, 1908 - Section 151-Inherent jurisdiction under Section 151-
Cannot be exercised to nullify provisions of Code.
Inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed
by Section 151, C.P.C., but that jurisdiction cannot be exercised so as to nullify the
provisions of the Code. Where the Code deals expressly with a particular matter, the
provision should normally be regarded as exhaustive. In the present case. Section 10, C.P.C.
has no application and consequently, it was not open to the High Court to bye-pass Section
10, C.P.C. by invoking Section 151, C.P.C.
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SYNOPSIS: RES JUDICATA

Section 11 – conditions:
i. Matter directly and substantially in issue in subsequent same as in former suit actually
(Expl III – actual res judicata) or constructively (Expl IV-constructive res judicata).

State of U.P v. Nawab Hussain AIR 1977 SC 1680 – constructive res judicata

Civil - res judicata - Section 11 and Order 1 Rule 8 of CPC - appeal for quashing disciplinary
proceedings on ground that he was not afforded reasonable opportunity to meet allegations
against him and action taken against him was malafide - High Court held suit was not barred
by res judicata and conductor could not be dismissed by an authority subordinate to that by
which he was appointed - conductor did not raise this plea in High Court - Apex Court opined
he could have raised such plea before High Court - such plea barred by res judicata as it was
an important plea which was within his knowledge and could have been taken up in High
Court - Order of High Court set aside.

ii. Former suit or issue (Expl I)

Mathura Prasad v. Dossibai N.B. Jeejeebhoy AIR 1971 SC 2355 – pure question of law
unrelated to facts, giving rise to a right may be re-opened in subsequent case – res judicata
not apply.

iii. Same parties or representatives – between co-plaintiffs or co-defendants also – res

judicata and minor – res judicata and representative suit (Expl VI)

Mahboob Sahab v. Syed Ismail AIR 1995 SC 1205 – res judicata apply to co- defendants in
former suit if certain conditions fulfilled.

iv. Same parties litigating under same title.

v. Court that decided former suit - competent to try subsequent suit also (Expl II, VIII)

Sulochana Amma v. Narayanan Nair AIR 1994 SC 152

Held: Interpretation of Statutes - Explanation--To be so read as to harmonise and clear up any
ambiguity in the same Section. Interpretation of Statutes--Explanation to Section is part and
parcel of enactment and normally should be so read as to harmonise with and to clear up any
ambiguity in the same Section. C.P.C. S. 11, Expl. VIII. "It is obvious from the objects
underlying Explanation VIII, that by operation of the non obstante clause finality is attached
to a decree of civil Court of limited pecuniary jurisdiction also to put an end to the vexatious
litigation and to accord conclusiveness to the issue tried by a competent Court, when the
same issue is directly and substantially in issue in a later suit between the same parties or
their privies by operation of Section 11. The parties are precluded to raise once over the same
issue for trial. ......It is settled law that Explanation to a Section is not a substantive provision
by itself. It is entitled to explain the meaning of the words contained in the section or clarify
certain ambiguities or clear them up. It becomes a part and parcel of the enactment. Its
meaning must depend upon its terms. Sometime, it would be added to include something
within it or to exclude from the ambit of the main provision or condition or some words
occurring in it. Therefore, the explanation normally should be so read as to harmonise with
and to clear up any ambiguity in the same section."

vi. Matter substantially and directly in issue heard and finally decided by court (Expl V)

State of Maharashtra v. M/s. National Construction Co. AIR 1996 SC 2367 – former suit
dismissed for technical defect – res judicata not apply.

 Res judicata and writ petitions:

Daryao v. State of U.P AIR 1961 SC 1457 – principles of applicability of res judicata to writ
petitions

The case debated when would the dismissal of writ petition by the High Court be bar to the
petition in Supreme Court in relevance to res judicata - It was held that there was no
substance in the plea that the judgment of the High Court could not be treated as res judicata
because under Article 226 of the Constitution of India, it could not entertain a petition under
Article 32 of the Constitution

Ghulam Sarwar v. Union of India AIR 1967 SC 1335 – res judicata not apply to writ
petitions for habeas corpus
(i) Constitution - res judicata - Articles 226 and 32 of Constitution of India - writ of habeas
corpus under Article 226 filed by detenue dismissed - whether such dismissal disentitle
detenue from filing petition under Article 32 of same relief - in case principle of res judicata
made applicable to habeas corpus petitions people's right to liberty will be curtailed -
petitioner being challenging constitutional validity of Act for first time no res judicata
applicable.

(ii) Preventive detention - Articles 14 and 359 of Constitution of India - validity of

Presidential Order made under Article 359suspending fundamental rights - such Order can be
challenged in case it violates Article 14 of Constitution.
  Res subjudice and Res judicata:
- Res judicata applies to a matter adjudicated upon and res subjudice applies to a matter
pending trial.
- Res judicata applies to trial of suit/issue which has been decided in former suit.
Res subjudice applies to pending suits only, not issues.
- Res judicata bars trial itself of suit/issue decided in former suit. Res subjudice bars
-proceeding with trial of suit subsequently filed
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SYNOPSIS
PECUNIARY JURISDICTION OF CIVIL COURT

 Meaning of jurisdiction:
Power of court to hear and decide a case

 Kinds of jurisdiction:
-Original and Appellate - Civil and Criminal - Municipal and Foreign
 Pecuniary jurisdiction
 Subject matter jurisdiction
 Territorial jurisdiction

PECUNIARY JURISDICTION – Section 6, 15 of the Code:

Sec 15: Suit shall be instituted at the court of the lowest grade competent to try it.
Sec 6: Courts have jurisdiction over suits wherein value of subject-matter of the suit does not
exceed the pecuniary jurisdiction of the court.

Suit Valuation Act 1885 & State statutes:

Value of subject-matter of suit is value of the relief claimed in the plaint Court-fees
calculated based on value of suit

Ramesh Goel v Dwinderpal Singh 2008 (1) Cal LT 429

Property - Civil - Benami Transaction (Prohibition) Act, 1988 (the Act) - Sections 3, 3(1),
3(2), 4, 4(1), 4(2) and 4(3); Trust Act - Sections 7 and 82; Civil Procedure Code (CPC), 1908
- Order 1, Rule 10 - Order 7, Rules 10A and 11; Constitution of India - Article 227 - Trial
court in suit for partition wherein Petitioner being pendente lite transferee, was impleaded as
Defendant u/o 1 r. 10 CPC, passed impugned orders rejected application of Petitioner u/o 7 r.
11 r/w o. 7 r. 10A CPC for rejection of plaint alleging that relief claimed in suit relating to
properties mentioned in Schedule "I" of plaint was barred u/s 4 of the Act - Held, suit could
not have been rejected u/o 7 r. 11 CPC, as suit was required to be heard on merit after taking
evidence in light of decision of Supreme Court in case of Nand Kishore Mehra v. Sushila
Mehra reported
ICICI Bank Ltd v Limtex India Ltd AIR 2011 Cal 111

Civil - Jurisdiction - Order 7 Rule 10 of Civil Procedure Code, 1908 (C.P.C) - Section 18 of
Recovery of Debts due to Banks and Financial Institutions Act, 1993 - Trial Judge rejected
Application of Defendant for declaration of valuation of suit under Order 7 Rule 10 of Civil
Procedure Code on ground that suit before Civil Court was not maintainable - Hence, this
Application - Whether, Trial Judge was justified in rejecting Application under Order 7 Rule
10 of C.P.C. - Held, Civil Court limited jurisdiction to entertain suit valued Rs. 10 lac and
Civil Court had no jurisdiction to entertain claim as made in prayer (f) of Plaint - Further, suit
valuation as per Clause (f), Plaintiff/opposite party had virtually claimed adjustment of Rs. 18
lac against Petitioner which amount had been appropriated in respected of dues of bank from
fixed deposit account of Plaintiff herein - Therefore, Section 18 of 1993 Act clearly bars
jurisdiction of Court to entertain such claim and Tribunal had jurisdiction to entertain such
claim between parties - Moreover, High Court also have no jurisdiction to entertain said
action as claimed in Plaint according to provisions of 1993 Act, suit would have been filed
before Debts Recovery Tribunal and Tribunal had jurisdiction to try suit filed by Plaintiff -
Thus, Trial Judge had committed errors of law in rejecting Application under Order 7 Rule 10
of C.P.C. and order passed by Trial Court was hereby set aside - Application allowed.

Ratio Decidendi

"Court shall pass order of declaration of valuation of suit within its limited jurisdiction."
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SYNOPSIS: ORDER I &
ORDER II

GENERAL SUMMARY OF ORDER I

i. The primary object of joinder of parties is that all suits must be decided finally and
conclusively in the presence of all concerned parties on merits.
ii. A party may be added as plaintiff or defendant if the right to relief arises out of the
same act/transaction and there is common question of law/fact (Rules 1, 3)
iii. If party is joined as plaintiff or defendant without the above two requirements, it is
misjoinder of parties.
iv. If joinder of parties embarrasses or delays trial, court may order separate trials for
the parties (Rules 2, 3A)
v. No person can be joined as plaintiff without his consent (Rule 10(3)
vi. Plaintiff is the best judge of his own interest and has the right to choose his
adversary without interference of the court.
vii. It is the duty of the court to ensure justice and for that end, the court may add /
delete / substitute / transpose a party, suo motu or on application of a party, at any
stage of the suit, without consent of the plaintiff (Rule 10(1), 10(2))
Razia Begum v. Sahebzadi Anwar Begum (AIR 1958 SC 886) - The appellant
 instituted a suit against the third respondent, for a declaration that she was his
legally wedded wife - Though, the respondent filed a written statement admitting
the claim, but at the same time, respondent 1 and 2 filed as suit for being added
as a party to the suit as defendants as they were wife and daughter of the third
respondent It was questioned whether the respondent 1 and 2 as parties to the
case was legal - It was held that according to the averments in the plaint only the
third respondent but the other members of his family including respondents 1 and
2, were interested in denying the appellant's status as a legally wedded wife,
hence respondents 1 and 2 were proper parties to the suit

viii. Where a party is added as defendant, plaint is to be amended (Rule 10(4)

ix. Where a party is added as defendant, the proceedings / suit/ case against him shall
be deemed to start from the date of service of summons on the new defendant for
the purposes of determining period of limitation as per the Limitation Act. (Rule
10(5)
x. The court cannot add / delete / substitute / transpose a party if it alters the cause of
action or results in de novo(completely new) cause of action.
xi. Objection regarding misjoinder or non-joinder of parties must be taken at earliest
possible opportunity. If not so taken, it is considered to be waived (Rule 13)
xii. Suit cannot be dismissed for misjoinder or non-joinder of parties, the plaint may be
returned for amendment (Rule 9). Suit may be dismissed for non-joinder of
necessary party (Rule 9)
xiii. Necessary party is a party without whom effective decree cannot be passed in the
suit. Proper party is a party whose presence helps the court to adjudicate on the suit
more effectively but without whom effective decree can be passed.
Ramesh Hiranand v. Municipal Corporation, Greater Bombay (1992) 2 SCC 524
- Civil - parties - Order 1 Rule 10 of CPC, 1908 - matter related to joining of
necessary parties - Order 1 Rule 10 provides that only necessary or proper party
may be added - necessary parties is one without whom no Order can be made
effectively - proper party is one in whose absence effective Order can be made but
whose presence is necessary for complete and final decision on question involved in
proceedings - addition of parties not question of initial jurisdiction of Court but of
judicial discretion which has to be exercised in view of all facts and circumstances
of particular case.
REPRESENTATIVE SUITS

- Order I Rule 8, 8A contains provisions relating to representative suits. Rule 8 is

exception to general rule of Order I.

- Decree passed in representative suit binding on the parties to the suit as well as
on all the persons whose interest was represented in the suit, even if they are not
parties to the suit. (res judicata – Section 11 Explanation VI)

Conditions to be fulfilled for a suit to be tried as a representative suit:

 i. Numerous parties
no limit on number of parties but should be capable of ascertainment, such
inhabitants of a village.
ii. Same interest
Same interest need not necessarily amount to same cause of action
T.N. Housing Board v. T. N. Ganapthy (AIR 1990 SC 642)
iii. Permission of the court
has to be sought at the earliest possible opportunity to allow the suit to be tried as
representative suit.
iv. Notice to all persons bound by decree
Such notice is mandatory. If notice is not given to all interested persons, decree not
binding on non-parties.

If suit not properly conducted, any person on whose behalf representative suit filed,
can apply to court to be added as party to suit- (Rule 8(3)

If party not proceeding with case with due diligence, court may substitute original
party with another having same interest – (Rule 8(5)

No abandonment or withdrawal of suit or claim in suit by plaintiff under Order 23

or compromise with defendant is allowed without notice to all interested persons
and leave of court.

Representative suit is not abated on death of party conducting the suit, other
interested person is added as party to suit which continues.

The court may allow persons or group of persons to present their opinion and
participate in the suit if the group of persons is interested in a question of law
directly and substantially in issue in the suit and is necessary in public interest –
(Rule 8A)
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ORDER II

Conditions to be fulfilled for suit to be barred under Order II Rule 2:

a. The subsequent suit must be based on same cause of action as the former decided
suit.
b. The plaintiff entitled to more than one relief for the same cause of action.
c. The plaintiff omitted to sue for one or more the relief in the former suit, for which
the subsequent suit is filed.
State of Maharashtra v. 9National Construction Co. (AIR 1996 SC 2367)
Civil - bank guarantee - Code of Civil Procedure, 1908 - bank guarantee is ordinarily contract
quite distinct and independent of underlying contract whose performance it seeks to secure -
Bank issuing guarantee is not concerned with underlying between parties to contract - duty of
Bank under performance guarantee is created by document itself - once documents are in
order then Bank giving guarantee must honour same and make payment - ordinarily in
absence of allegation of fraud or like Court will not interfere to withhold payment.

Kewal Singh v Lajwanti (AIR 1980 SC 161)

Tenancy - eviction - Section 11 and Order 2 Rule 2 of CPC, 1908, Sections 14A (1) and 25B
of Delhi Rent Control Act, 1958 and Article 14 of Constitution of India - petition against
Order of High Court upheld Order of eviction - plaintiff-respondent proved that premises
required for her bona fide necessary - classification under Section 25B is reasonable
classification and cannot discriminatory or arbitrary - Section 25B constitutionally valid - no
infirmity in Order passed by High Court - appeal dismissed.

Joinder and Misjoinder of Causes of Action:

Several causes of action may be joined in single suit in certain circumstances.
i. One plaintiff, One defendant, Several causes of action
Plaintiff can join several causes of action in single suit against single defendant IF plaintiff is
entitled to relief and defendant is liable for all the causes of action. If above condition not
fulfilled, suit is bad for misjoinder of causes of action. Suit is not to be dismissed but returned
for amendment.
Jay Industries v. Nakson Industries (AIR 1992 Delhi 338),
ii. Several Plaintiffs, One Defendant, Several Causes of action
Several plaintiffs can join several causes of action in single suit against single defendant IF
all the plaintiffs are jointly entitled to relief and the defendant is liable on all the causes of
action. Order I Rule 1 to be complied with to add several persons as plaintiffs. If the above
conditions not fulfilled, suit is bad for misjoinder of plaintiffs and causes of action. Suit
cannot be dismissed on this ground but returned for amendment
iii. One Plaintiff, Several Defendants, Several Causes of action
The plaintiff can join several causes of action in single suit against several defendants IF all
the defendants are jointly liable on all the causes of action. Order I Rule 3 to be complied
with to add several persons as defendants. If above conditions not fulfilled, suit is bad for
misjoinder of defendants and causes of action and suit may be dismissed on this ground.
iv. Several Plaintiffs, Several Defendants, Several Causes of action
Several plaintiffs can join several causes of action in single suit against several defendants IF
all the plaintiffs are jointly entitled to relief and all the defendants are jointly liable on all the
causes of action. Order I Rule 3 to be complied with to add several persons as defendants. If
above conditions not fulfilled, suit is bad for misjoinder of defendants and causes of action
and suit may be dismissed on this ground.

Misjoinder of defendants and misjoinder of causes of action together results in

Multifariousness and suit is liable to be dismissed on the ground of multifariousness.
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SYNOPSIS : LEGAL REPRESENTATIVE & MESNE PROFIT
 LEGAL REPRESENTATIVE – Section 2(11)
 Person in law representing estate of deceased – legal heir, coparcener etc
 Any person who intermeddles with estate of deceased and intends to sue or be sued
in representative character.
 Even a stranger can be considered as LR. Example, liquidator of bankrupt company,
receiver appointed by court, executor/administrator etc.

Andhra Bank Ltd v Srinivasan AIR 1962 SC 232

Civil - international law - Order 11 Rule 1, Order 21 Rule 22 and Order 22 Rule 4 of Code of
Civil Procedure, 1908 - defendant dies - legal representatives were non-resident foreigners
for purpose of jurisdiction - steps taken to bring them on record to defend suit on behalf of
deceased - in such case no scope for application of rule of private international law -
competence of suit originally filed remains unimpaired - Court before it was filed competent
to try it - held, High Court erred in deciding competence of City Civil Court to try suit filed
before it.

Satya Ranjan Roy v Sarat Chandra Biswas AIR 1926 Cal 825

Civil Procedure Code (Act V of 1008), Section 2(11) - Legal representative--Person taking
away property of deceased, whether executor de son tort--Suit against estate-Executor de son
tort, whether can be impleaded as party in presence of legal representative.

MESNE PROFIT – Section 2(12)

Profit from property by
 person in wrongful possession of property
 actually received or might have received with ordinary diligence
 with interest
 does not include profit from improvements made by person in wrongful possession
There is no fixed principle and various factors are considered depending on the circumstances
of each case to determine mesne profit from a property.

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SYNOPSIS: FOREIGN JUDGMENT

Foreign judgment defined in Section 2(6) of CPC as judgment of foreign court.

Section 13 declares foreign judgment to be conclusive on the matter directly adjudicated

upon between the same parties or parties under whom they claim under the same title.
Exceptions when foreign judgment not enforceable between the parties in India:
 a) It is not pronounced by court of competent jurisdiction
Competent jurisdiction of court to be determined as per principles of international law.
Jurisdiction conferred when:
- Person is subject of foreign country
- Person is resident of foreign country when action commenced
- Person is temporarily present in foreign country when summons served.
- Person sued as plaintiff in earlier case in foreign country
- Party voluntarily appears on summons or submits to jurisdiction of court.

b) It is not given on merits of the case

Case: International Woollen Mills v. Standard Wool (U.K) Ltd. AIR 2000 P&H 182 Every
ex-parte decree does not necessarily mean that it was not given on merits of the case.

c) Where proceedings are founded on incorrect view of international law or refusal to

recognize law in India
Case: Anubha v. Vikas Aggarwal AIR 2003 Del 175

d) Where proceedings are opposed to natural justice

e) It has been obtained by fraud

Case: Maganbhai v. Maniben AIR 1985 Guj 187

f) It sustains a claim founded on breach of any law in India.

Foreign judgments may be enforced in India through:

- execution proceedings under Section 44-A of CPC or
- suit upon foreign judgment.
Case: Badat & Co. v. East India Trading Co. AIR 1964 SC 538
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