BASIC LIFE CYCLE OF CIVIL SUIT

1. INITIATION OF SUIT
Presentation of the plaint in the court is the first step or starting point of all the pleading in a case in India.
The whole judicial system under the civil law set in motion by the filing the plaint. Every suit is commenced
when the plaintiff files a plaint to the court. Plaint is filed as a pleading. The case is registered by the court
and logged in its records. It is possible that court decides to consolidate the suit with an ongoing trial as well.

2. ISSUANCE OF NOTICE/ SUMMONS

After a Plaint is filed the Court may either accept the Plaint or they may reject the Plaint if the Plaint is
accepted the Court may call the Party i.e., Defendant against whom the dispute is filed and Court calls party
by issuing Summon. Defendant to whom the summons is issued may appear in person or through the legal
representative. If the Summons are addressed within the jurisdiction of the Court then the same is addressed
under Section 27 of the Code and if the Defendant doesn’t reside in the jurisdiction of the Court but the
same resides in the same Country than the Summons are addressed under Section 28 of the Code but if the
Defendant is residing outside the Country than the Summons are addressed under Section 29 of the Code.
The Summons is also addressed when Plaintiff or Defendants want to produce a witness in the Court, the
procedure relating for calling for witness is mentioned under Section 31 of the Code. The procedure for the
Service of Summons is mentioned under Order V of the Code.

3. EX – PARTE ORDER IF DEFENDANT IS ABSENT

The defendant needs to appear in the court either personally, or by a representative on the date mentioned
in the summons. If the summons was for final disposal, then the defendant needs to present evidence,
documents, and any witnesses to support his case. If the defendant does not appear then ex-parte order will
be passed by the court.

4. WRITTEN STATEMENT / WRITTEN WS ORDER

In the simple language Written Statement is a Document in which the Defendant mentions his/her side of
facts of the case and mentions his defense to the Plaint. Order VIII of the code deal with Written Statement.
Before Amendment in 2002, there was no limitation period for filing the Written Statement but after the
amendment, it is mandatory to file Written Statement within 90 days, after the limitation period is expired it
is at the discretion of the Court whether to accept the Written Statement. Under this discretion, the Court
will give additional days to file Written Statement but those days won’t exceed 90 days.

5. HEARING ON INJUNCTION APPLICATION IF APPLICABLE

6. LIST OF DOCUMENTS
After the Framing of Issue, the Court will ask t
he Parties to submit a List of Documents on which they are relying upon. The parties submit the list in the
form of Affidavit.

7. FRAMING OF ISSUES BY THE COURT

The Court after the Suit is filed and after the Written Statement is filed by the Defendant then the Court may
ask the parties to produce Draft Issues and after examining the draft issues the Court may frame Final issues.
Order XIV of code deal with Framing of Issues.

Modification of issues
The court may amend or remove any issues before passing a decree as it seems fit. Though an application
can also be filed with the court by either party for amendment of issues.

8. LIST OF WITNESS

9. EVIDENCE BY BOTH THE PARTIES

 The plaintiff has the right to begin, then he/she must submit the evidence. Unless the defendant agrees to
allegations made by the plaintiff, but disagrees with the relief sought then defendant has the right to begin.
The plaintiff must state his case in front of the judge. The plaintiff must submit the evidence that was earlier
marked. If any evidence was not marked earlier then it will not be considered by the court. The plaintiff will
be cross-examined by the defendant's lawyer. The witnesses from plaintiff's side also must appear in the
court, who are also cross-examined by the defendant's lawyer.

The defendant also presents his side of the story supported by the witnesses and evidence from his side. The
evidence needs to be marked earlier by the court, otherwise it will not be considered by the court. The
plaintiff's lawyer will then cross-examine the defendant.

10. ARGUMENTS BY THE PARTIES

Once the evidence has been submitted and cross-examination is conducted by the plaintiff and defendant,
both sides are allowed to present a summary of their case and evidence to the judge in the Final argument
session.

11. JUDGEMENT AND DECREE

After the concerned court has heard the matter, the Court will pass Judgment/Decree. The provision related
to Judgment and Decree is in Section 33 read with Order XX of the Code. The party in whose favour the
judgement is passed is known as decree holder, and the party against whom the judgement is passed is
called the judgement debtor.

12. APPEALS
After the Judgment is pronounced and if the concerned party are not satisfied with the Judgment/Decree
passed than they can either apply for Review (Section 114 read with Order XLVII) within Thirty Days from the
date of pronouncement of Judgment/Decree or the aggrieved party can apply for Revision (Section 115) to
the higher court within thirty days of pronouncement of Judgment, or the aggrieved party can also go for an
Appeal (section 96 to 110 along with Order XLI to XLV) to the Higher Court within 60 or 90 days from the
pronouncement of the Judgment/ Decree.

13. EXECUTION OF THE ORDER

In this stage, decree-holder compels the judgment-debtor to out the mandate of the decree or decree or
order. It is the process by which a decree-holder recovers the fruits of the judgment. The execution is
complete when judgment creditor or decree-holder gets money or other thing awarded to him by judgment,
decree, or order.
 BASICS OF PLEADINGS
ORDER II RULE 1 – FRAME OF SUIT

ORDER II RULE 2 – SUIT SHALL INCUDE WHOLE CLAIM

ORDER IV- INSTITUTION OF SUIT

ORDER VI – PLEADINGS

ORDER VI RULE 1 – WHAT IS PLEADING?

ORDER VI RULE 2 – FUNDAMENTALS OF PLADING

ORDER VII RULE 7 – RELEIF TO BE SPECIFICALLY STATED

ORDER VII RULE 8 – RELEIF FOUNDED ON SEPARATE GROUNDS

ORDER VII RULE 11 – REJECTION OF PLAINT

ORDER VII RULE 12 – PROCEDURE FOR REJECTING THE PLAINT

ORDER VII RULE 13 - WHERE REJECTION OF PLAINT DOES NOT PRECLUDE PRESENTATION OF FRESH PLAINT

Order VI of the Code deals with the Pleadings. According to Rule 1, Pleading means plaint or written statement.
According to P. C. Mogha, pleading are statements in writing draw up and filed by each party to a case stating what
his contention will be at trial and giving all such details as his opponents needs to know for his defence.

PLEADING:

 Plaint
 Written Statement

This rule declares that the pleading is the plaint filed by the plaintiff and the written statement filed by the defendant
and thus the stage of pleading would mean the institution of plaint till the submission of a written statement.

Therefore, pleading is statement of parties to communicate their contention to be adjudicated in trial. This process is
the primary process in the Civil Procedure.

Object of Pleading: The object of pleading was explained by the Supreme Court in Ganesh Trading Co. v. Moji Ram,
AIR 1978 SC 484. Pleading has following objects:

a) To give each side, intimation of the case of the other so that they are not taken by surprise.
b) To enable the court to determine the issues between the parties.
c) To diminish expenses and delay in conduct of suits.

In Thorp v. Holdsworth, the court held that the whole object of pleading is to narrow down parties to definite issues

ORDER IV: INSTITUTION OF SUIT

Suit to be commenced by plaint. —

(1) Every suit shall be instituted by presenting [plaint in duplicate to the Court] or such officer as it appoints in
this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in
sub-rules (1) and (2).

REQUIREMENTS OF PLAINT: ORDER VII RULE 1

Particulars to be contained in plaint. —The plaint shall contain the following particulars: —
 (a) the name of the Court in which the suit is brought;
(b) the name, description, and place of residence of the plaintiff;
(c) the name, description, and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed, or
relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees,
so far as the case admits.

BASIC REQUIREMENT OF FILING A SUIT

Cause of Action: The suit must disclose a valid cause of action which is sine qua non (essential condition) for filing
the suit.

KUNJAN NAIR VS NARAYANA NAIR

The expression “cause of action” came to be interpreted by this Court in Kunjan Nair Sivaraman Nair v. Narayanan
Nair. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense, cause of
action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the
wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of
the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which
would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the court. Every fact
which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact,
comprises in “cause of action.”

FUNDAMENTALS OF PLEADINGDS

Order VI Rule 2 lays down fundamental principle of pleading. This rule provides for the general caution a litigant must
exercise while drafting his pleading and is thus known as the golden rule of pleading. It provides that:

1. Every pleading must contain only material facts on which the party pleading relies i.e., unnecessary facts
having no bearing upon the cause of action must not be stated (also known as Facta Probanda). It is for the
court to apply the law to the facts pleaded. Thus, existence of any custom or usage is question of fact and it
must be pleaded but a plea about maintainability of suit raises question of law and need not be pleaded.
However, a mixed question of fact and law should be specifically pleaded. Rule 13 further provides that
presumption raised in one’s favour is not required to be pleaded as these are matter of evidences.
VINOD KUMAR VS SURJIT KAUR: A Party must plead all the material facts on which he relies at the trial. If
any material fact is omitted, the statement of claim is bad and it would mean no pleading and no cause of
action for the suit. If material facts are not pleaded, a court cannot permit to lead evidence.
2. The pleading must not contain any evidence of the facts, by which they would be proved, which is required
only after settlement of issues (also known as Facta Probantia).
3. Plaintiff’s cause of action and defendant’s defence depends on material facts. These facts are to be
distinguished from a particular which only provides the details of the case. Their purpose is to amplify, refine
and embellish material facts. Rule 4 provides the cases in which particulars are to be given. It provides that
all necessary particulars like misrepresentation, fraud, and breach of trust, wilful default or undue influence
must be stated in the pleadings. The pleading should contain facta probanda and not facta probantia.
4. The pleading of the parties must not state any law through which such facts must be appraised by the court,
but a mixed question of law and fact may be stated in the pleadings.
5. That all such material facts must be stated in concise form i.e., in brief and to the point, further it is provided
that, every pleading shall be divided into paragraphs, numbers consecutively and every allegation should be
contained in separate paragraphs. Dates, sums, and numbers should be expressed in figures as well as in
words.
 6. ORDER 7 RULE 7 Relief to be specifically stated. —Every plaint shall state specifically the relief which the
plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other
relief which may always be given as the Court may think just to the same extent as if it had been asked for.
And the same rule shall apply to any relief claimed by the defendant in his written statement.
7. ORDER 7 RULE 8 Relief founded on separate grounds. —Where the plaintiff seeks relief in respect of several
distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as
may be separately and distinctly.

ORDER II: FRAME OF SUIT

 ORDER 2 RULE 1 Frame of suit. —Every suit shall as far as practicable be framed to afford ground for final
decision upon the subjects in dispute and to prevent further litigation concerning them.
 ORDER 2 RULE 2 Suit to include the whole claim. — (1) Every suit shall include the whole of the claim which
the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of
his claim to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. —Where a plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or
relinquished.
(3) Omission to sue for one of several reliefs. —A person entitled to more than one relief in respect of the
same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court,
to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

DOCTRINE OF RES JUDICATA

Res means “subject matter” and judicata means “adjudged” or decided and together it means “a matter adjudged.”
In simpler words, the thing has been judged by the court, the issue before a court has already been decided by
another court and between the same parties. Hence, the court will dismiss the case as it has been decided by
another court. Res judicata applies to both civil and criminal legal systems. No suit which has been directly or
indirectly tried in a former suit can be tried again.

RES JUDICATA ORDER 2 RULE 2

1. This refers to plaintiff's duty to bring 1. This requires the Plaintiff to claim all
forward all the grounds of attack in reliefs flowing from the same cause of
support of his claim. action.

2. This refers to both the parties i.e., 2. This refers to only to the Plaintiff and
Plaintiff as well as Defendant and bars a suit.
precludes a suit as well as defence.

Constructive Res-Judicata and Order II Rule 2 of the Code of Civil Procedure in Alka Gupta v. Narender Kumar
Gupta, (2010) 10 SCC 141, Supreme Court observed that Plea of res judicata is a restraint on the right of a plaintiff to
have an adjudication of his claim. The plea must be clearly established; more particularly where the bar sought is
based on constructive res judicata. The object of Order 2 Rule 2 of the Code is two-fold. First is to ensure that no
defendant is sued and vexed twice regarding the same cause of action. Second is to prevent a plaintiff from splitting
of claims and remedies based on the same cause of action. The effect of Order II Rule 2 of the Code is to bar a
plaintiff who had earlier claimed certain remedies regarding a cause of action, from filing a second suit regarding
other reliefs based on the same cause of action. It does not however bar a second suit based on a different and
distinct cause of action.
Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised,
whereas Order II Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action
but not claimed.

REJECTION OF A PLAINT

ORDER 7 RULE 11 Rejection of plaint. — The plaint shall be rejected in the following cases: —

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9
ORDER 7 RULE 12. Procedure on rejecting plaint. —Where a plaint is rejected, the Judge shall record an order to
that effect with the reasons for such order.
ORDER 7 RULE 13. Where rejection of plaint does not preclude presentation of fresh plaint. —The rejection of the
plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting
a fresh plaint in respect of the same cause of action.

AMENDMENT OF PLEADINGS
 TRANSFER APPLICATION

Sections 22 to 25 enact the law as regards transfer and withdrawal of suits and appeals from one court to another
court. Section 22 read with Section 23 enables the defendant to apply for transfer of a suit while Section 24
empowers High Court and District Court and Section 25 empowers Supreme Court to transfer any suit or appeal
either upon application made by the party or Suo motu.

Transfer of Suit

Who may apply? To what court application lies? General powers of Transfer Power of SC to Transfer
Section 22 Section 23 Section 24 Section 25
Defendant District Court & High Court

SECTION 22: POWER TO TRANSFER SUITS WHICH MAY BE INSTITUTED IN MORE THAN ONE COURT.

Section 22 allows whom to make an application for transfer of a suit? Defendant.

Section 22 provides that the defendant may apply to the court for transfer of suit to another court in case a suit may
be instituted in any one of two or more courts. Before transfer is ordered under Section 22, following conditions
must be satisfied:

1) Notice is given to the other party.

2) The application must be made at earliest possible opportunity either at before or settlement of issues.

Hearing of Objections: - After Notice is served to the other party, the court must decide that application of transfer
after hearing of objections of the opposite party.

Suo-Motu Transfer: - Over and above an application by a party to the suit, High Court & District Court has power to
transfer the suit or appeal even suo-motu under Section 24. However, Section 25 does not provide for suo-motu
transfer of the suit or appeal by the Supreme Court.

The court after considering such objection raised by the other party, shall determine in which court the case shall be
transferred.

SECTION 23: TO WHAT COURT APPLICATION LIES

This Section indicates in which court application can be made:

1. Subordinate to same Appellate Court- Where the several courts having jurisdiction are subordinate to the
same Appellate Court, application shall be made to the Appellate Court.
2. Subordinate to different Appellate Court- Where such courts are subordinate to different Appellate Court,
but to the same High Court, the application shall be made to the said High Court.
3. Subordinate to different High Courts- Where such courts are subordinate to different High Courts, the
application shall be made to the High Court within the local limits of whose jurisdiction the court in which
the proceedings first commenced is situated. This is called First Commencement Rule.

Governing factor as to rule to transfer of an application under Sections 22 & 23.

 1. Balance of convenience is a factor to be look into.
a. Convenience or inconvenience of the plaintiff and his right to choose forum.
b. Convenience or inconvenience of the defendant.
c. Convenience/inconvenience of the witness required for the proper trial of the suit.
d. Nature of the issues involved in the suit.
Indian Overseas Bank v. Chemical Construction: It was held that balance of convenience is prima facie
consideration for transfer of a suit. Balance of convenience is neither convenience of plaintiff alone nor
of the defendant alone, but of both. Convenience of witness required for proper trial of the suit, and the
convenience of the particular place of trial having regard to the nature of the evidence on main points
involved in the suit and doctrine of forum convenience are relevant factors.

2. Prior notice to the parties i.e., served notice to the parties and it is based on principle of natural justice.

In transfer cases involving allegations against the PO, only the remarks of the judges should be called for before
making the order. No comments/remarks on the merits of the case.
Inherent powers under Section 151 CPC cannot be exercised for transfer of a case.
When an application for transfer is dismissed as frivolous, vexatious or mala fide, courts have the power to award
substantial or exemplary costs.
An order of transfer is not appealable. It is open for revision under section 115 of the CPC

TRANSFER ALLOWED

1. Reasonable apprehension in the mind of the litigant that he might not get justice in the court where the suit
is pending.
2. To avoid multiplicity of proceedings or conflicting decisions.
3. When judge is interested in one party and prejudiced to the other.
4. When common questions of facts and law arise between the parties in the two suits.
5. When two different suits are filed by same parties against each other on the same cause of action.
6. When transfer avoids delays and expenses.

TRANSFER REJECTED

1. Mere allegation that opposite party is a man of influence in the locality

2. Mere fact that the court is at a very long distance from the residence of the applicant.
3. Presiding officer belongs to a community rival to the applicant.
4. Mere fact that judge has decided similar point in a previous case.
5. Refusal to grant adjournments
6. Prejudice of the Judge against the pleader not affecting the merits of the case.
7. Allegations of apprehension of fair trial without furnishing particulars.
8. Judge making adverse remarks regarding merits of the case.

MANEKA GANDHI VS. RANI JETHMALANI: - Although the discretionary power of the court to transfer the
cases cannot be imprisoned within a straight jacket of any cast iron formula unanimously applicable to all
situations, nonetheless the power of transfer a case must be exercised with due care and caution.

AN ORDER TO TRANSFER IS NOT APPEALABLE; IT IS OPEN TO REVISION.

 SUMMARY SUITS
ORDER 37 – PROCEDURE OF SUMMARY SUIT

In the context of Indian law, the term “summary suit” refers to a type of legal proceeding under the Code of Civil
Procedure (CPC). Summary suits are intended to provide a speedy and relatively simple means of resolving certain
types of civil disputes, without the need for a full trial.

Under the CPC, a summary suit can be instituted in cases where the plaintiff’s claim is based on a negotiable
instrument (such as a promissory note, bill of exchange, or cheque) or on an agreement that provides for the
payment of a debt or liquidated demand in money. To be eligible for a summary suit, the plaintiff’s claim must be for
a specific amount of money, and must not be disputed by the defendant.

The process for a summary suit is relatively streamlined compared to a regular civil suit. After the plaintiff files the
suit and serves notice on the defendant, the court may proceed to a judgment without requiring a full trial, if the
defendant does not dispute the claim or raise any other objections. This can save both time and money for the
parties involved, and can help to expedite the resolution of the dispute.

WHICH ORDER OR SECTION RELATES TO SUMMARY SUIT?

The Provisions of Order XXXVII of CPC deals with summary suits.

Order XXXVII Rule 1 Sub-rule 2 provides classes of suits where it can be instituted.

 Bills Of Exchange
 Hundies
 Promissory Notes
 Suit Where The Plaintiff Seeks Only To Recover A Debt

COURTS

 HIGH COURT
 CITY CIVIL COURT
 SMALL CAUSE COURT
 CIVIL JUDGE JUNIOR DIVISON
 CIVIL JUDGE SENIOR DICISION
 OTHER COURTS PUBLISHED BY THE HC IN THE OFFICIAL GAZETTE

WHAT ARE THE MAJOR DIFFERENCES BETWEEN A SUMMARY SUIT AND ORDINARY SUIT?

The main differences between a summary suit and an ordinary suit are:

Nature of Claim: A summary suit can only be filed for claims that are based on a negotiable instrument or an
agreement that provides for the payment of a debt or a liquidated demand in money. On the other hand, an
ordinary suit can be filed for any civil claim, whether it is based on a contract, tort, or any other cause of action.

Procedure: The procedure for a summary suit is more streamlined and expedited compared to an ordinary suit. In a
summary suit, the court may proceed to a judgment without requiring a full trial, as long as the defendant does not
dispute the claim or raise any other objections. In an ordinary suit, the court typically follows a more elaborate and
time-consuming procedure that involves a full trial with witness examination, document production, and cross-
examination.

Timeframe: Because the procedure for a summary suit is more simplified and expedited, it generally takes less time
to resolve a summary suit compared to an ordinary suit. This can be beneficial for parties who are looking for a faster
resolution of their dispute.
Evidence: In a summary suit, the court relies primarily on the written evidence submitted by the parties, such as the
negotiable instrument or agreement in question. In an ordinary suit, the court may consider a wider range of
evidence, including witness testimony and expert reports.

WHAT IS THE LIMITATION PERIOD TO FILE A SUMMARY SUIT?

The limitation period to file a summary suit in India is governed by the Indian Limitation Act, 1963. As per the Act,
the limitation period for filing a summary suit is three years from the date on which the cause of action arose.

WHAT DECREE MAY BE EXPECTED IN SUMMARY SUITS?

The plaintiff is designated to a decree of a sum not surpassing the amount mentioned in the plaint including interest
and cost under the following conditions:

Such can be expected in case the defendant does not present himself before the court or does not make an
application for leave to defend or challenge the amount so claimed or in case where the defendant has made an
application for leave to defend but the same has been dismissed by the court.

PROCEDUE FOR DEFENDANT

 A summary suit is instituted by presenting a plaint in the Civil Court.

 Then the summons in the next stage is issued on the defendant, in the prescribed form no. 4, accompanied
by a copy of the plaint and Annexures.
 Before entering an appearance before the Court, the defendant is required to enter his appearance within
10 days of receipt of summons.
 On default of the appearance of the defendant within the stipulated time it is assumed that he has admitted
the allegations made in the plaint and the plaintiff gets entitled to a final order granting him the sum as
mentioned in the plaint along with interest at the specified date and costs if the Court thinks it appropriate.
(Rule 2)
 The plaintiff shall serve the defendant a summons for judgment if he presents himself before the court in the
prescribed Form no. “4A)
 Then, the defendant may apply for leave to defend the suit within 10 days from the date of service of
summons.
 If a defendant has not made an application for leave or such an application has been dismissed or if the
defendant doesn’t comply with the conditions based on which the leave was granted the plaintiff becomes
entitled to the judgment forthwith.
 The Court shall not refuse permission to the defendant to defend the suit unless it believes that the
disclosure by the defendant does not show that he has any substantial defense to raise or that it is frivolous.
 Also, where the defendant admits part of the amount claimed by the plaintiff, then the court shall permit the
defendant to defend only when such admitted amount is deposited by the defendant in the court.

ONCE THE COURT ALLOWS LEAVE TO DEFEND IT WILL BE CONVERETED INTO A “REGULAR SUIT.” THE CHARACTED
OF THE SUIT WILL CHANGE WHEREIN CPC WILL BE APPLICABLE.
CONDONATION OF DELAY CAN BE FILED, IF YOU CANNOT FILE LEAVE TO DEFEND WITHIN 10 DAYS.

TEST(S) FOR GRANTING LEAVE TO DEFEND

The courts dealing with summary procedure are not straight away at discretion whether to grant leave to defend or
not. Each case must be decided on its own merits and facts and circumstances occurring therein.

In case of Punjab & Sindh Bank v. M/s. Ram Prakash Jagdish Chandler: The Delhi High Court has held that where a
defence has never been taken by the defendants before the filing of the suit, such defendant does not raise a
"triable issue" before the Court, leave to defend cannot be granted.
Once the Court concludes that there is a triable issue i.e., plea which is at least plausible, it must grant leave to
defend without inquiring the defendant either to pay the amount claimed for or so furnish required security thereof.
In other words when a prima facie defence is made out, the Court generally grants leave.

Again, whether the defence raises a triable issue or not has to be ascertained by the Court from the pleading before
it and the affidavits of the parties and it is not open to it to call for evidence at that stage the leave to defend may be
granted. But where the triable issue is not dependant on facts to be investigated, and is simply a question of law, no
leave should be given to the defendant and the point may be decided at once.

In the case of IDBI Trusteeship Services Ltd v. Hubtown Ltd: Supreme Court laid down conditions when
leave to defend must be granted. The judge must ensure that justice is being done on the factual matrix of
the case. Unconditional leave is granted in cases where the defendant presents a substantial defense. The
vexatious defense would result in refusal to grant leave. The court stated that if the defendant shows he
has a fair or reasonable defense, though not a good defense, the plaintiff will not be entitled to judgment.

In an application under Order XXXVII, rule 4, the Court has to determine the question, on the facts of each case, as to
whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside
the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and
also in regard to pre-decree matters viz. to give leave to the defendant to appear to the summons and to defend the
suit.
 TEMPORARY INJUNCTION
ORDER 39 RULE 1 AND RULE 2 – PROCEDURAL
ORDER 39 RULE 2A – VOILATION – CIVIL PRISON – 3 MONTHS CIVIL PRISON AND ATTACHMENT
ORDER 39 RULE 3 – AD INTERIM INJUNCTION
SECTION 94(c) – SUBSTANTIVE

IS INJUNCTION A RIGHT OR JUDICIAL DISCRETION?

Injunction is not a right it is discretion. You have a right to ask for injunction and it is discretion of the court to grant.
Injunction is an equitable relief. Both the parties been considered equally, greater relief and cause to affect each of
them. The parties are on equitable level. The court considers Balance of convenience because injunction is a harsh
relief. Court must apply judicial mind because the court is curtailing the rights. Irreparable loss may be caused to the
party when injunction application is rejected which cannot be compensated in terms of money.

A temporary or interim injunction is that which, restrains a party temporarily from doing the specified act and can be
granted only until the disposal of the suit or until the further orders of the Court. It is regulated by the provisions of
Order XXXIX of the Code of Civil Procedure, 1908 and may be granted at any stage of the suit.

SECTION 94 – SUPPLEMETAL PROCEEDINGS

Section 94(c) - (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the
civil prison and order that his property be attached and sold;

The granting of temporary injunction is a matter of discretion of the Court. The discretion is to be exercised judicially
according to well-settled principles.
TEMPORARY INJUNCTION

Rule 1 of Order XXXIX provides that where in any suit it is proved by affidavit or otherwise:
(a) that any property in disputed in a suit is in danger of being wasted, damaged or alienated by any
party to the suit or wrongfully sold is of a decree, or
(b) that the defendant threatens or intends to remove or dispose of his property with a view to
defrauding his creditors, or
(c) that the defendant threatens or dispossess the plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit, or
(d) where a court is of the opinion that the interest of justice so requires [Manohar Lai v. Rai Bahadur
Rao Raja Seth Hiralal]

It is not the plaintiff alone who can apply for an interim injunction. A defendant also may make an application for
grant of an injunction against the plaintiff.

Rule 2 of Order XXXIX provides injunction to restrain or continuance of breach:

(1) In suit for restraining the defendant from committing a breach of contract or otherwise injury of any kind,
whether compensation is claimed in the suit or not the plaintiff may, at any time, after the commencement
of the suit and either before or after judgment, apply to the Court for a temporary injunction to restrain the
defendant from committing the breach of or injury complained of or any breach of contract or injury of a like
kind arising out of the same contract or relating to the same property.
(2) The Court may by order grant such injunction on such terms as to the duration of the injunction, keeping an
account, giving security or otherwise, as the Court thinks fit.

SCOPE
 It provides that when the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in suit, the Court may grant a temporary injunction to restrain
such an act or make other order for the purpose of preventing the dispossession of the plaintiff or for the
purpose of preventing the causing of injury to the plaintiff in relation to any property in dispute.
 If the defendants are creating third party interest/rights as he is trying to dispose of part of the property, the
plaintiff can claim the injunction.
  Temporary injunction is a provisional remedy that is invoked to preserve the subject matter in its existing
condition. Its purpose is to prevent dissolution of the plaintiff's rights. The main reason for use of a
temporary injunction is the need for immediate relief.
 It is well-settled principal law that interim relief can always be granted in the aid of and as ancillary to the
main relief available to the party on final determination of his rights in a suit or any other proceeding.
Therefore, a court undoubtedly possesses the power to grant interim relief during the pendency of the suit.
Temporary injunctions are thus injunctions issued during the pendency of proceedings.
 An injunction is a judicial proceeding whereby a party is required to do, or to refrain from doing, any act. It is
a remedy in the form of an order of the Court addressed to the person that either prohibits him from doing or
continuing to do a particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory
injunction).

EX-PARTE INTERIM INJUNCTION

 As per Rule 3 of Order XXXIX of the C.P. Code the Court has the power to grant an exparte interim injunction
in exceptional circumstances based on sound judicial discretion to protect the plaintiff from apprehended
injury.
 As per Rule 3A of Order XXXIX of Civil Procedure Code where an injunction has been granted without giving
notice to the opposite party, the Court shall make an endeavor to finally dispose of the application within
30 days from the date on which the injunction was granted and where it is unable so to do, it shall record
its reasons for such inability.
 The requirement of recording reason for grant of ex parte injunction, cannot be held to be mere formality.
The requirement is consistent with the principle, that a party to a suit, who is being restrained from
exercising a right which such party claims to exercise either under a statute or under common law, must be
informed why instead of following requirement of rule 3. The procedure prescribed in proviso is followed.
 The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to
the other side, under exceptional circumstance. Such ex parte order has far reaching effect, as such a
condition has been imposed that Court must record reason before passing such order.
 If it is held that the compliance with the proviso aforesaid is optional and not obligatory, the introduction of
proviso by the parliament shall be a justice exercise and that part of rule 3 will be purposeless for all practical
purposes.
 Ex parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice
of motion.

Rule 3 of Order XXXIX provides that:

"The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by
the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite
party:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite
party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated
by delay, and require the applicant--

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting
the injunction has been made, a copy of the application for injunction together with—

i. a copy of the affidavit filed in support of the application;

ii. a copy of the plaint; and
iii. copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an
affidavit stating that the copies aforesaid have been so delivered or sent."

Therefore, this rule requires the applicant to issue notice to the opposite party before injunction is granted. Though,
the Court has power to grant ex parte injunction without issuing notice or hearing the party who will be affected by
such order, the said power can be exercised under exceptional circumstances.
Before granting of the temporary injunction, the following considerations are required to be satisfied:

1. There is a prima facie case in favour of the plaintiff and against the defendant.
2. That irreparable injury is likely to be caused to the plaintiff which cannot be compensated for in
terms of money.
3. That the balance of convenience lies in favour of the plaintiff and against the defendant.

"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the
evidence which is led in support of the same were believed while determining whether a case is prima facie one or
not, the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question
and not whether that was the only conclusion which could be arrived at on that evidence."

In other words, the Court must be satisfied that there is a bona fide dispute raised by the applicant and on the facts
before it there is a probability of the applicant being established to the relief claimed by him.

SEEMA ARSHAD ZAHEER VS. MUNICIPAL CORPORATION OF GREATER MUMBAI

 The Hon’ble Supreme Court has indicated the salient features of prima facie case as The discretion of the
court is exercised to grant a temporary injunction only when the following requirements are made out by the
plaintiff:
 Existence of a prima facie case(means a factual matrix before the court makes out a controversial matter
which needs adjudication) as pleaded, necessitating protection of the plaintiff's rights by the issue of a
temporary injunction;
 When the need for protection of the plaintiff's rights is compared with or weighed against the need for
protection of the defendant's rights or likely infringement of the defendant's rights, the balance of
convenience tilting in favor of the plaintiff; and (the court evaluates comparative hardship)
 Clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.
 In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be
exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean
hands.

Section 151 talks about the inherent powers of the court. What the court can grant under
section 94, Order 39 Rule 1, Order 39 Rule 2 the court cannot grant it under Section 151
because there is a separate provision for temporary injunction.