Image Source- https://bit.ly/3co963r

Table of Contents

Definitions (Sec. 2)

Decree, Judgement, Order

Decree 

The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree always follows judgement and is based upon a judgement. It is divided into five types unlike judgement which is final in itself. A decree may be final or preliminary. It is a formal declaration or adjudication and is conclusive in nature. A decree is of three kinds namely, preliminary decree, final decree and partly preliminary & partly final. A decree may be delivered with an order. The decree contains the outcome of the suit and conclusively determines the rights of the parties with regard to the issues in dispute in the suit. After passing the decree, the suit stands disposed of since the rights of the parties are finally determined by the court.

Deemed Decree 

A decree shall be deemed to include the rejection of a plaint and any question within Section 144 of Code of Civil Procedure,1908 but shall not include:

Any such sentence(adjudication) from which it appears that an appeal lies as an appeal from an order, or any such order of discharge(dismissal) of default.    

Kinds of Decrees 

According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into three categories:

Preliminary Decree

In general sense, the word preliminary means preparation for the main matter, initial, introductory, preparatory. In a legal sense, a preliminary decree is a decree where further proceedings have to take place before the suit can be completely disposed of. It decides the rights of the parties in respect to all or any of the matters of discussion but it does not completely dispose of the suit. In such a decree the rights and liabilities of the parties are stated leaving the actual result or decision to be worked out in future proceedings. A preliminary decree is passed in those cases where the proceedings are to be carried out in two different stages. The first stage is when the rights of the parties are adjudicated and the second stage is when those rights are implemented or executed.

Final Decree 

In general sense, the word ‘final’ means last, ultimate, conclusive or decisive. In legal sense, a final decree is a decree which completely disposes of the suit and settles all the questions in discussion between the parties and nothing is left further for deciding thereafter. It is only said to be final when such adjudication completely disposes of the suit.

Partly preliminary and partly final Decree

A decree is said to be partly preliminary and partly final when the court decides two questions by the same decree. For instance, if the court passes a decree in favour of one party along with a direction of inquiry for the other party, the former part of the decree is final while the latter part is a preliminary decree for which further proceedings have to take place. For example, in a suit of possession of a property with company ‘C’, if the court passes a decree of possession of the property in favour of the plaintiff and directs an enquiry into the company ‘C’, then the former part of the decree is final decree while the latter part is the preliminary decree.

The necessity of a Decree 

The Code of Civil Procedure requires the passing of a decree in all the suits. A decree is based upon judgement and it also follows a judgement which is the reason why it is an indispensable and essential requisite. The decree is indispensable or an absolute requisite. It is an essential part of the ultimate outcome of the suit. An appeal can be made against a decree and not against a judgement. If the decree is absent an appeal cannot be ‘put in motion’.

Contents of a Decree 

A decree always follows the judgement, coincide with it and contains:

  1. The suit’s number – Every suit has a particular number and it should be mentioned in the decree. 
  2.  The names, description and registered addresses of the parties – Every decree shall have the names of all the parties of that particular suit, the proper description of the parties of the suit, and the registered addresses of all the parties of the suit.
  3. The particulars of the parties claims or defence – Every decree shall contain the details of the claims and the defences the parties are claiming as an outcome of the said suit.
  4. The relief or the remedy granted to the aggrieved party – The decree should in particular mention the relief granted to the particular party as a remedy and not a reward.
  5. The total amount of cost incurred in the suit-
    1.   by whom; or
    2.   out of what property; and
    3.   in what portions are they paid or are to be paid.
  6. The judgement’s date of pronouncement or delivery date of the judgement – The decree should mention the date on which the judgement was delivered followed by the decree.
  7. The judge’s signature on the decree – The judge’s signature is an essential and indispensable element of any decree. The signature of the judge delivering the judgement is an essential requisite.

Drawing up of a Decree 

Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall be drawn within 15 days of the judgement. An appeal can be favoured or preferred without filing a copy of a decree if it is not drawn within 15 days of the judgement.

Decrees in Special cases

  • In a lawsuit for the recovery or process of regaining or repossession of an immovable property(real estate), the decree shall include a description of such property so that it is sufficient to recognise or identify it.
  • In a decree for movable property(personality), it must mention the exact amount of money to be paid as an alternative in case the delivery is not made due to any reason either it be reasonable or appropriate.
  • In a decree for payment of money, the Court may order that the payment of decretal amount i.e., the  amount mentioned in the decree shall be:
  1. postponed which is delayed to a future date; or
  2. made by installments with or without interests.
  • In a suit for the recovery or process of regaining or repossession of immovable property, the Court may pass a decree- for possession or gaining of property.

for past rents or mense profits. (mesne profits are the profits of an estate received by a tenant in wrongful possession and recoverable by the landlord) that is a final decree in respect of rent or mesne profits in accordance with results of such enquiry as mentioned.

Rule 12A of the Code of Civil Procedure,1908 states that a decree for specific performance of a contract for sale or lease of an immovable property which can also be termed as real estate shall specify the exact period within which the amount of money or other sum is to be paid by the purchaser or lessee.

Rule 13 of the Code of Civil Procedure,1908  states that the final decree shall be passed or delivered in accordance with the result of preliminary enquiry i.e., in a lawsuit for an account of any property either movable or immovable and for its due administration under the decree of Court, before passing a final decree, the court should pass a preliminary decree ordering accounts to be taken and enquiries to be made. 

Rule 14 of the Code of Civil Procedure,1908 states a decree in a pre-emption suit, it is a suit where the displacement of a lower jurisdiction’s laws when they conflict with those of a higher jurisdiction, where the purchase money has not been paid into Court, shall specify a particular day on or before which the purchase money has to be paid and direct that on payment to Court, the defendant shall deliver property to the plaintiff, but if the payment is not made on a specific day, the lawsuit shall be dismissed with costs. In cases the Court has settled upon rival claims to pre-emption, the decree shall direct:

The claim or defence of each pre-emptor shall take effect proportionately if the claims decreed are equal in degree.

The claim or defence of the inferior pre-emptor will not take place till the superior pre-emptor fails to make the payment if the claims decreed are different in degree.

In a lawsuit for dissolving of partnership or taking of partnership accounts, the Court can pass a preliminary decree before passing a final decree declaring the exact shares of all the parties, fixing of a particular day on which the partnership shall become dissolved and directing the accounts to be taken and other necessary actions to be done. In a lawsuit for accounts between a principal person and agent, the Court can pass a preliminary decree before passing a final decree directing the accounts that have to be taken and it can also provide special directions in regards to the mode of taking accounts as well. In a decree passed in a lawsuit for partition of property either movable or immovable or for separate possession of share in the property, The decree shall declare the rights of several parties interested in that property but shall direct partition or separation to be made by collector and in other cases of immovable property in case the estate is assessed to the payment of revenue to the government. 

The Court shall pass a preliminary decree declaring all the rights of the parties in estate and giving necessary directions and then the final decree is passed, if separation or partition cannot conveniently be made without further inquiry.

 A decree where the defendant has been allowed leave or start with a  counterclaim against the initial claim of the plaintiff shall state with what amount is due to the plaintiff and what amount is due to the defendant thereafter.

Judgement 

The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A judgement contains facts of the case, the issues involved, the evidence brought by the parties, finding on issues (based on evidence and arguments). Every judgement shall include a summary of the pleadings, issues, finding on each issue, ratio decidendi and the relief granted by the court. On a daily basis, numerous judgements are pronounced and various cases are disposed of. Judgements play a very important role in the working of our judicial system because they act as precedents for cases to come in the near future. A judge in the judgement pronounced, always states the reasons for such a decision.

Pronouncement of a judgement

The word pronouncement means to make an official public announcement. Pronouncement of a judgement means that after the hearing is completed i.e. after the Court has heard the pleadings of the parties, the judgement shall be announced by the Judges in an open Court, either at once or at some future day, after providing due notice to the parties or their learned counsels.

If a judgement is not pronounced immediately then it must be pronounced within 30 days from the date of the conclusion of hearing. However, sometimes it so happens that due to exceptional and some extraordinary reasons like a bank holiday, strike or some other situation it may be delivered within 60 days from the conclusion of the hearing. It is not mandatory for a judge to read out the whole judgement and it would be enough if only the final order is pronounced. The judge shall put the date on which the judgement was pronounced along with his signature. Rule 2 Order XX of Code of Civil Procedure, 1908 provides a judge with the right to pronounce the judgement which is already written but is not pronounced by his predecessor.

After the Amendment Act of 1976, the time limit was provided between the hearing of the arguments and the pronouncement of the judgement. Prior to this amendment no time limit was provided as such. Such a time limit was provided because there was indefinitely continuous imposition from all over India.

Copy of the judgement

Once the judgement is pronounced the copies of that particular judgement should be immediately made available to the parties on payment of costs as specified, by the party applying for such copy, of such charges as may be specified in the rules and orders made by the High Court (H.C.) Such a rule is specified in Order XX Rule 6-B of the Code of Civil Procedure, 1908.

Contents of the judgement

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

Judgements of a Court of Small Causes are satisfactory if they contain the points for determination and the decision thereon.

Judgments of other Courts shall contain:

  • Summary of the pleadings which is a concise statement of the case;
  • Issues which are the points for determination;
  • Findings on each issue and the decision thereon;
  • Ratio decidendi (reasons for such a decision); and
  • The remedy, which is the relief granted.

Alteration of a judgement

Once a judgement is dated and signed by the judge it can only be altered or amended if:

There are arithmetical or clerical errors. (clerical errors refer to the errors made by clerks and arithmetical errors refer to errors made in numbers such as addition, subtraction, multiplication and division). There are errors due to accidental slips or omissions (these errors take place when some essential element is left unnoticed) (Section 152) on review (Section 114).

Foreign Court, Foreign Judgement (Sec. 13)

The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for enforcement of foreign judgments and decrees in India. CPC, 1908 had defined the following as-

Section 2(5) “foreign Court” means a Court situated outside India and not established or continued by the authority of the Central Government.

Section 2(6) “foreign judgment” means the judgment of a foreign Court.

Nature and Scope of Foreign Judgments

Section 13 embodies the principle of res judicata in foreign judgments. It embodies the principle of Private International law that a judgment delivered by a foreign court of competent jurisdiction can be executed and enforced in India.

Object of Recognizing Foreign Judgments

The judgment of a foreign court is enforced on the principle that where a foreign court of competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim in the country where the judgment needed to be enforced. The rules of private international law of each state differ in many respects, but by the comity of nations certain rules are recognized as common to civilized Jurisdictions. Through part of the judicial system of each state these common rules have been adopted to adjudicate upon disputes involving a foreign element and to enforce judgments of foreign courts, or as a result of International conventions. Such a recognition is accorded not as an act of courtesy but on consideration of basic principles of justice, equity and good conscience. An awareness of foreign law in the parallel jurisdiction would be a useful guideline in determining our notions of justice and public policy. We are a Sovereign Nation within our territory but “ it is not derogation of sovereignty to take accounts of foreign law”.

“We are not provincial as to say that every solution of the problem is wrong because we deal with it otherwise at home”.Therefore, we shall not brush aside foreign judicial processes unless doing so, “would violate some fundamental principle of justice & deep-rooted traditions of common weal”.

Jurisdiction of Foreign Courts

In Private International Law, unless a foreign court has jurisdiction in the international sense, a judgment delivered by that court would not be recognized in India. But it considers only the territorial competence of the court over the subject-matter and defendant. Its competence or jurisdiction in any other sense is not regarded as material by the court in this country.

Presumption as to foreign judgments

Section 14 states the presumption that an Indian court takes when a document supposing to be a certified copy of a foreign judgment is presented before it. The Indian Courts presume that a foreign Court of competent jurisdiction pronounced the judgment unless the contrary appears on the record, but by proving want of jurisdiction may overrule such presumption.

Section 14. Presumption as to foreign judgments – The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court to competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction[6].

Conclusiveness of Foreign Judgments

Section 13 lays down the fundamental rules which should not be violated by any foreign court in passing a decree or judgment. The decree or judgment of foreign court will be conclusive except where it comes under any of the clauses (a) to (f) of Section 13.

When foreign judgment is not conclusive-A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except,—

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable

(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) Where it has been obtained by fraud;

(f) Were it sustains a claim founded on a breach of any law in force in India.

Foreign Judgments when cannot be Enforced in India

Before enforcing a foreign judgment or decree, the party enforcing it must ensure that the foreign judgment or decree must not fall under these 6 cases. If the foreign judgment or decree falls under any of these tests, it will not be regarded as conclusive and hence not enforceable in India. Under Section 13, there are six cases when a foreign judgment shall not be conclusive. Six tests are discussed below.

Foreign Judgment not by a competent court

It is a basic fundamental principle of law that the judgment or order passed by the court which has no jurisdiction is void. Thus, a judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction. Such judgment must be by a court competent both by law of the state which has constituted it and in an international sense and it must have directly adjudicated upon the matter which is pleaded as Res judicata.

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar, it was alleged by the respondent that since he was not a subject of the foreign country, and that he had not submitted to the jurisdiction of the Foreign Court (Singapore Court), the decree could not be executed in India. The Appellant, in defense of this argument, stated that the Respondent was a partner of a firm which was doing business in Singapore and had instituted various suits in the Singapore Courts. Therefore, the Respondent had accepted the Singapore Courts jurisdiction. The Court held that it was the firm which had accepted the jurisdiction of the foreign Court and the Respondent, in an individual capacity, had not accepted the jurisdiction. Thus, the High Court held that the decree against the Respondent was not executable.

PROPOSITION

Under Section 13(a) of CPC, the following proposition may be laid

  • In case of actions-in-personam, a foreign court may pass an order or judgment against an Indian defendant, who is served with the summons but he remains ex parte. But it may be enforceable against such Indian defendants, by fulfilling any of the following conditions.
  • If the person is a subject of the foreign country in which the judgment or decree has been obtained against him on prior occasions.
  • If the person is a resident in foreign country when the action is commenced.
  • If a person selects the foreign Court for taking action in the capacity of a plaintiff, in which he is sued later
  • If the party on being summoned voluntarily appears before the foreign court
  • If by an agreement a person has contracted to submit himself to the Court in which the judgment is obtained.

Foreign Judgments not on Merits

In order for a foreign judgment to operate as Res Judicata, it must have been given on merits of the case. A judgment is said to have been given on merits when after taking evidence and after applying his mind regarding the truth or falsity of the case.

The Actual test for deciding whether the judgment has been given on merits or not is to see whether it was merely passed as a matter of course, or by way of penalty of any conduct of the defendant, or is based upon a consideration of the truth or falsity of the plaintiff”s claim.

In the case of Gurdas Mann v. Mohinder Singh Brar,he Punjab & Haryana High Court held that an ex parte judgment and decree which did not show that the plaintiff had led evidence to prove his claim before the Court, was not executable under Section 13(b) of the CPC since it was not passed on the merits of the claim.

PROPOSITION

Under Section 13(b) of CPC the following proposition may be laid

A judgment or decree passed by a Foreign Court against an Indian defendant, who has remained ex-parte, may not be enforceable against him, unless it can be shown that the said judgment was passed after investigation into the plaintiff’s claim.

Foreign Judgments against International or Indian Law

A Judgment which is contrary to the basic fundamental rules of International law or a refusal to recognize the law of India where such law is applicable is not conclusive. Where a suit instituted in England on the basis of contract made in India, the English court erroneously applied English law, thus, the judgment of the court is covered by this clause as the general principle of Private International Law is that the rights and liabilities of parties to a contract are governed by the place where the contract is made (lex loci contractus).[12]

In the case of I & G Investment Trust v. Raja of Khalikote, a suit was filed under the English Jurisdiction to avoid the consequences of the Orissa Money Lenders Act. The Court held that the judgment was passed on an incorrect view of the international law. The Court further observed that, although the judgment was based on the averment in the plaint that the Indian law did not apply, however, there was no “refusal” to recognise the local laws by the Court.

PROPOSITION

Under Section 13(c) of CPC, the following proposition may be laid

A judgment passed by a foreign Court upon a claim for immovable property, situated in the Indian territory may not be enforceable since it violates International Law. A judgment passed by the foreign Court, where before a contrary Indian law had been shown, but the Court had refused to recognize such law, then that Judgment or decree may not be enforceable, except where the proper law of contract is the foreign law.

Foreign Judgments opposed to the principle of Natural Justice

It is the essence of a judgment of court that it must be obtained after due observance of the judicial procedure i.e., the court rendering the judgment must observe the minimum requirements of natural justice. It must be composed of impartial persons, who must act in a fair and justified manner, without bias, and in good faith, it must give reasonable notice to the parties to the dispute and each party should be given equal opportunity to present their case. A judgment which suffers from such infirmities on the part of a judge will be regarded as a nullity and the trial “coram non judice”

In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram, the Supreme Court held that just because the suit was decreed ex-parte, although the defendants were served with the summons, does not mean that the judgment was opposed to natural justice.

PROPOSITION

Under Section 13(d) of CPC, the following proposition may be laid The foreign court must follow the principle of natural justice while delivering the judgment. Judgement must be impartial, given fairly, moreover, the parties to the dispute should be given appropriate notice of the initiation of legal proceedings. Equal opportunity of presenting their case, in order to avoid any allegation of not fulfilling the principles of natural justice in case the judgment or decree comes to the Indian court for enforcement. Unless this is done the judgment or decree passed by a foreign Court may violate the Principles of Natural Justice.

Foreign judgment obtained by fraud

It is a well settled principle of Private International Law that if foreign judgments are obtained by fraud, it will not operate as res judicata.

It has been said “Fraud and Justice never Dwell together” (fraus et jus nunquam cohabitant); or “ Fraud and deceit ought to benefit none” (fraus et dolus nemini patrocinari debent).

In the case of Satya v. Teja SingH, the Supreme Court held that since the plaintiff had misled the foreign court as to its having jurisdiction over the matter, although it could not have had the jurisdiction, the judgment and decree was obtained by fraud and hence inconclusive.

In S.P. Chengalvaraya Naidu v. Jagannath, Supreme Court held that it is a well settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law.

PROPOSITION

Under Section 13(e) of CPC, the following proposition may be laid -Where the plaintiff misleads the Foreign court and the judgment or decree is obtained on that basis, the said Judgment may not be enforceable, however, if there is some error in the judgment then the Indian courts will not sit as a Court of appeal to rectify the mistake or error.

Foreign Judgments founded on breach of Indian Law 

When a law in force in India is wrongly construed so as to form the reasoning behind a judgment delivered by a foreign court, in such cases the enforceability of the foreign judgment in Indian courts will be under question.

China Shipping Development Co. Limited v. Lanyard Foods Limited, wherein the High Court held that a petition for winding up of an Indian company would be maintainable on the basis of judgment of foreign Court. In this case, the foreign company delivered cargo to the Indian company in compliance with requests made by the Indian company and in the process the foreign company had incurred certain liabilities towards third parties and it had to pay certain amount in legal proceedings and therefore, in terms of the letter of indemnity issued by the respondent Indian company, the foreign company claimed the amount from the respondent Indian company, which denied its liability and therefore the foreign petitioner company initiated legal proceedings against the Indian company in the English Courts as provided in the Letter of Indemnity. 

The respondent Indian company did not file defence and therefore the English Court passed an ex-parte order awarding a certain amount in favor of the petitioner foreign company on consideration of evidence and on the merits of the claim filed by the foreign company. By a notice issued under sections 433 and 434 of the Companies Act, 1956, the petitioner foreign company called upon the respondent Indian company to pay the amount due under the order of the English Court.

After the respondent Indian company failed to honour the amount, the petitioner Foreign Company filed a petition for winding up of the Indian company. In the above circumstances since the records of the case manifestly revealed that the respondent Indian company was unable to pay its debts, the petition for winding up was admitted vide order dated 4.4.2007 under sections 433 and 434 of the Companies Act, 1956.

PROPOSITION

Under Section 13(f) of CPC, the following proposition may be laid -A judgment passed by a foreign court, which breaches any law in force in India may not be enforceable, except where it is based on a contract having a different “proper law of the contract”.

Enforcement of Foreign Judgments

A foreign Judgment which is conclusive and does not fall within section 13 (a) to (f), may be enforced in India in either of the following ways.

By instituting execution proceedings

A foreign Judgment may be enforced by proceedings in execution in certain specified cases mentioned in Section 44-A of the CPC.

Section 44A – Execution of decrees passed by Courts in reciprocating territory[20].-(1) Where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Explanation I: “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section, and “Superior Courts”, with reference to any such territory, means such courts as may be specified in the said notification.

Explanation II: “Decree” with reference to a superior Court means any decree or judgment of such court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalties, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.

Moloji Nar Singh Rao vs Shankar Saran, Supreme Court held that a foreign judgment which does not arise from the order of a superior court of a reciprocating territory cannot be executed in India. It ruled that a fresh suit will have to be filed in India on the basis of the foreign judgment.”

Therefore Under Section 44A of the CPC, a decree or judgment of any of the Superior Courts of any reciprocating territory are executable as a decree or judgment passed by the domestic Court. The judgment, once declared, will be executed in accordance with section 51 of the Code. Thereafter, the court may order measures such as attachment and sale of property or attachment without sale, and in some cases arrest (if needed) in enforcement of a decree. This is done by the methods discussed below.

By instituting a suit on such foreign judgment

Where a judgment or decree is not of a superior court of a reciprocating territory, a suit has to be filed in a court of competent jurisdiction in India on such foreign judgment. The general principle of law is that any decision of a foreign court, tribunal or any other quasi-judicial authority is not enforceable in a country unless such decision is embodied in a decree of a court of that country. In such a suit, the court cannot go into the merits of the original claim and it shall be conclusive as to any matter thereby directly adjudicated between the same parties. Such a suit must be filed within a period of 3 years from the date of judgment[23].

In Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd, the Bombay High Court observed that in case of a decree from a non-reciprocating foreign territory, the decree-holder should file, in a domestic Indian court of competent jurisdiction, a suit on that foreign decree or on the original, underlying cause of action, or both.

However, in both the cases, the decree has to pass the test of Section 13 CPC which specifies certain exceptions under which the foreign judgment becomes inconclusive and is therefore not executable or enforceable in India.

Foreign Award

An award passed by foreign arbitrator is enforceable in a country where it was made and can also be enforced in India. Courts may refer to CPC or any other statute while considering the procedure to be followed for enforcement of foreign awards under Foreign Awards (Recognition and Enforcement) Act (45 of 1961)

Effect of Foreign Judgment

A foreign judgment is conclusive for any matter adjudicated between the parties. Such judgment is conclusive and would create Res judicata between the same parties or between parties under whom they or any of the claims.

Limitation period for Enforcement of Foreign Judgments

As per the provisions of the Code, foreign judgments from reciprocating territories are enforceable in India in the same manner as the decrees passed by Indian courts. The Limitation Act, 1963 prescribes the time limit for execution of a foreign decree and for filing of a suit in the case of judgment passed by foreign court.

  • Three years, commencing from the date of the decree or where a date is fixed for performance; in case of a decree granting a mandatory injunction; and
  • Twelve years for execution of any other decree commencing from the date when the decree becomes enforceable or where the decree directs any payment of money or the delivery of any property to be made at a certain date, when default in making the payment or delivery in respect of which execution is sought, takes place.

A judgment obtained from a non-reciprocating territory can be enforced by filing a new suit in an Indian court for which a limitation period of 3 years has been specified under the Limitation Act, 1963 commencing from the date of the said judgment passed by foreign court.

Other definitions: Affidavit, Suit, Plaint, Written Statement

Affidavits – Order 19

Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by the person who is aware of the facts and circumstances which have taken place. The person who makes and signs is known as ‘Deponent’. The deponent makes sure that the contents are correct and true as per his knowledge and he thereby concealed no material therefrom. After signing the document, the affidavit must be duly attested by the Oath Commissioner or Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the sign of the deponent is not forged. The affidavit shall be drafted as per the provisions of the code. It must be paragraphed and numbered properly.

Even though the “affidavit” has not been defined in the code, it basically means “a sworn statement in writing made specifically under oath or affirmation before an authorized officer or Magistrate.”

Essentials

There are some basic essentials which are required to be fulfilled while submitting the affidavit in the court:

  • It must be a declaration by a person.
  • It shall not have any inferences, it shall contain facts only.
  • It must be in the first person.
  • It must be in writing.
  • It must be statements which are taken under oath or affirmed before any other authorized officer or a Magistrate.

Contents of affidavit

As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware of as true to his personal knowledge. However, interlocutory applications can be filed wherein he can admit his belief.

Evidence on affidavit

As per section 3 of the Evidence Act, affidavits are not considered as evidence. When there is a need to prove the facts, oral evidence is normally taken into consideration by the court. However, Rule 1 Order 19 is invoked by the Court when it finds that it is necessary to make an order for any particular fact which may be proved by affidavit. If a person provides evidence under the affidavit then the opposing counsel has the right to cross-examine or reply-in-affidavit.

Further, the person who is making an affidavit shall put on those facts only to which he has true personal knowledge. If he gives a statement, not to his personal knowledge then in such case he shall mention the true source. The counsel shall advise the deponent to make sure that he puts facts which he knows rather than what he believes.

The court can reject the affidavit if it is not properly verified and not in conformity with the rules of the code. At the same time the court can also give an opportunity to the party to file the affidavit properly.

In the interlocutory applications like interim injunctions, the appointment of receiver, attachment of property wherein the rights of the parties are not determined conclusively, can be decided on the basis of the affidavit.

False affidavit

Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an offence. Giving a lenient view will undermine the value of the document and it will harm the proceedings and will provide no justice to the parties. Criminal contempt of court proceedings can be initiated by the court against the person who files false affidavits in the court of law. Strict actions are taken against public officials who files false affidavits.

As per section 193 of the IPC:

  • a person who intentionally gives false evidence or fabricates false evidence during a judicial proceeding, he shall be punished with seven years of imprisonment and fine;
  • and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Meaning of suit

The word suit has not been defined anywhere in the Code, but it is a proceeding which is commenced by presentation of a plaint. In Hansraj Gupta and Ors. vs. Official Liquidators of the DehraDun-Mussoorie Electric Tramway Co.Ltd., the Privy Council has defined the expression “suit” as a civil proceeding instituted by presentation of a suit.

In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court has stated suit is to be understood to apply on any proceeding in a court of justice by which an individual pursues that remedy which the law affords.

Plaint

A Plaint is a legal document that contains the content of any civil suit which shows the Plaintiff’s claim after filing suit. The plaintiff is the first step of the Plaintiff in the form of a legal document for the commencement of suit and it shows what a Plaintiff wants from that suit. The concept of a plaintiff is mentioned in the Civil Procedure Code. Through the help of the plaintiff, the plaintiff narrates or describes the cause of action and related information which is considered as essential from the viewpoint of the suit.

In the case of the plaintiff, the cause of action consists of two divisions, first is the legal theory (the factual situation based on which the plaintiff claims to have suffered) and second is the legal remedy that the plaintiff seeks from the court. A plaint is considered an important concept because it is the foremost and initial stage to initiate any lawsuit and helps to find a civil court of appropriate jurisdiction.

Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order VII of CPC, there are many different rules which deal with different constituents of plaint. Rules 1 to 8 deal with the particulars of the plaint. Rule 9 of CPC deals with how the plaint will be admitted and after that Rule 10 to 10-B talks about the return of the plaint and the appearance of parties. And the main Rules i.e 11 to 13 deal with the rejection of the plaint and in which circumstances the plaint can be rejected.

Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.” This section clearly shows that plaint is very much necessary for the establishment of a suit before the civil or commercial court.  

Necessary Contents of A Plaint

A plaint is a legal document that contains a lot of necessary contents in the absence of which, it cannot be considered as a plaint. The contents necessary for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC. These are mentioned below:

  • Plaint should contain the name of the commercial or civil court where a suit will be initiated.
  • Plaint should contain details of the plaintiff such as the name, address, and description.
  • Plaint should contain the name, residence, and description of the defendant.
  • When a plaintiff has some defects or problems in health or any type of disability, the Plaint should contain a statement of these effects.
  • Plaint should contain the facts due to which cause of action arises and where the cause of action arises it should also be mentioned.
  • Plaint should not only mention facts due to which cause of action arises but also those facts which help in recognizing the jurisdiction.
  • Plaint should also contain about that relief which the plaintiff seeks from the court.
  • When the plaintiff is ready to set off a portion of his claim, the Plaint should contain that amount which has been so allowed.  
  • Plaint should contain a statement of the value of the subject-matter of suit not only for the purpose of jurisdiction but also for the purpose of court-fees.At last, the content that should be on plaint is the plaintiff verification on oath.

This shows that the plaint is a necessary component for the successful initiation of suits in commercial or civil courts and plays a very important role throughout the suit. Some additional particulars which were not mentioned above include the following: Plaintiff shall state the exact amount of money to be obtained from the defendant as given under Rule 2 of order VII whereas Rule 3 of order VII of CPC states that when the plaint contains subject matter of immovable property, then the property must be duly described.

Important Concepts

Res Sub-Judice and Res Judicata (Sec. 10,11)

Nature, Scope and Objective

The principle of res sub-judice prevents the court from proceeding with the trial of any suit in which the matter in issue is directly or substantially the same with the previously instituted suit between the same parties and the court where the issue is previously instituted is pending has the power to grant the relief sought.

This rule is applicable to the trial of the suit and not the institution. It does not restrict the court from passing interim orders like injunction or stay. However, it applies to revisions and appeals.

The purpose behind this rule is to prevent multiplicity of cases in courts. It is also sought to prevent the plaintiff from getting two separate decisions from different courts in his favour or two contradictory judgements. It also ensures to protect the litigant from unnecessary harassment. The policy of law is to restrict the plaintiff to one legislation, thus obviating the possibility of two conflicting verdicts by one and the same court in respect of the same relief.

Conditions

Section 10 of the Civil Procedural Code, 1908 deals with the conditions required to apply the principle of res sub judice. The conditions in the process of application of res sub-judice are:

Where the matter in issue is same

Section 10 clearly states that the matter in issue in both the suits must be directly or substantially be the same.In other words there must be two suits one that is previously instituted and another that is subsequently substituted. The issues of both the suits should be the same to get the benefit of this principle, it is not sufficient if only one or two issues are common. In the circumstances where the entire issues are not the same, the court may exercise its power under Section 151 and stay the trial in a subsequent suit or the trial of the suit may be consolidated. The power of courts to stay the trial under Section 151 is discretionary in nature and can be exercised only when there is an abuse of process of court and if it defeats the ends of justice.

According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:

Matter directly and substantially in issue– Here “directly” means immediately i.e. without any intervention. The word “substantially” implies essentially or materially.

Matter collaterally and incidentally in issue– It is just contrary to the matter directly or substantially in issue.

  • Where the parties in suits are same

The two suits should have the same parties or their representatives.

  • Where the title of the suit is same

The title of both the suits for which the parties are litigating should also be same.

  • Where the suit must be pending

The former suit must be pending in the court while the latter suit is instituted. The word pending is for the previously instituted suit, where the final decision has not been arrived at.

  • In a competent court

Section 10 also specifies that the former suit must be pending before a court which is competent to carry out the trial. If the former suit is pending before an incompetent court, no legal effects can flow from it.

Illustrations:

‘X’ and ‘Y’ decide to enter into a contract for the sale of machines. ‘X’ is the seller and ‘Y’ is the purchaser. Y defaulted in paying the amount of the sale to X. X first filed a suit for recovery of the entire amount in Bangalore. Subsequent to this, X filed another suit at Bombay High Court demanding Rs. 20,000 as outstanding balance. In X’s suit Y took the defence that X’s suit should be stayed since both the suits are on similar issue. However, the Bombay court held that since X’s first suit and the second suit have similar issues similar to the first suit, the subsequent suit is liable to be stayed.

‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the agent then filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’ for accounts and his negligence in Odisha; while the case was pending in Patna. In this case, Patna court is precluded from conducting trial and can petition Odisha Court to direct a stay of proceedings in Patna Court.

The moment the above conditions are satisfied, a court cannot proceed with the subsequently instituted suit since the provisions contained in Section 10 are mandatory and the court cannot exercise its discretion. The order of stay can be made at any stage of the proceedings.

However, Section 10 takes away the power of the court to examine the merits of the case thoroughly. If the court is satisfied with the fact that the subsequent suit can be decided purely on legal point, it is open for the court to decide in such a suit.

Test

The test of applicability for Section 10 is whether the decision in a former given suit would operate as res judicata(decided case) in the subsequent suit. It this happens, then the latter suit must be stayed. This can also be inferred from S.P.A Annamalay Chetty vs. B.A Thornbill.

Suit pending in foreign court

The explanation clause of Section 10 clearly provides that there is no limitation on the power of an Indian court to try a subsequent instituted suit if the previously instituted suit is pending in a foreign suit. This also means that the cases can be carried on simultaneously in two courts.

Inherent power to stay

The word inherent has very wide meaning which includes an inseparable part of something or an attribute or quality which is permanent and essential. It is something which is intrinsic and attached to a person or object. Therefore, inherent powers are the powers of the courts which are inalienable i.e., something which can be separated or taken away from the courts and they exercise it in order to provide complete justice to the parties.

Even where the provisions of Section 10 do not strictly apply, a civil court has inherent power under Section 151 to stay a suit to achieve justice. Additionally courts can also consolidate different suits between the same parties in which the matter of issue is substantially the same. In Bokaro and Ramgarh Ltd. vs. State of Bihar and Another(1962) the matter in issue was regarding the ownership of a property. The court in this case used its power and consolidated different issues having the same matter.

Consolidation of suits

The objective behind Section 10 is to avoid two contradictory decisions in the same matter by different courts. To overcome this the courts can pass an order of consolidation of both the suits. In the case of Anurag and Co. and Anr. vs. Additional District Judge and Others, it was explained that consolidation of suits is ordered under Section 151 for meeting the ends of justice as it saves the party from a multiplicity of cases, delays and expenses. The parties are also relieved from producing the same evidence at two different places.

Effect of contravention

Any decree passed in contravention of Section 10 is not null and therefore cannot be disregarded completely. It is to be clearly understood here that it is only the trial and not the institution of the subsequent suit which is barred under this section. But this right which is given in favour of parties can be waived by them. Hence, if the parties in a suit decides to waive their rights and ask the court to proceed with the subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.

Interim orders

Interim orders are the temporary orders which are passed for a limited duration just before the final order. An order of stay under Section 10 does not take away the power of the court to pass interim orders. Therefore, the courts can pass such interim orders as it thinks fit like attachment of property, injunction etc.

Res Judicata meaning

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 example

‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the ground as the area of the land was less than the mentioned on the lease. The Court found that the area was greater than shown in the lease. The area was excess and the principles of res judicata will not be applied.

In a case, ‘A’ new lawsuit was filed in which the defendants requested that the Court dismiss the lawsuit with a plea of res judicata. She was barred from bringing a claim of res judicata because her previous claim was dismissed for fraud. The Court said that the defence of res judicata must be proved by evidence.

Principle of Res Judicata

The principle of res judicata seeks to promote the fair administration of justice and honesty and to prevent the law from abuse. The principle of res judicata applies when a litigant attempts to file a subsequent lawsuit on the same matter, after having received a judgment in a previous case involving the same parties. In many jurisdictions, this applies not only to the specific claims made in the first case but also to claims that could have been made during the same case.

Prerequisites for Res Judicata

  • A judicial decision by proficient court or tribunal,
  • Final and binding and
  • Any decision made on the merits
  • A fair hearing
  • Earlier decisions right or wrong are not relevant.  

Nature and Scope of Res Judicata

Res judicata includes two concepts of claim preclusion and issue preclusion. Issue preclusion is also known as collateral estoppel. Parties cannot sue each other again after the final judgment on the basis of merits has reached in civil litigation. For example, if a plaintiff wins or loses a case against the defendant in the case say A, he cannot probably sue the defendant again in case B based on the same facts and events. Not even in a different court with the same facts and events. Whereas in issue preclusion it prohibits the relitigation of issues of law that have already been determined by the judge as part of an earlier case.

The scope has been decided in the case of Gulam Abbas v. State of Uttar Pradesh. In this case the court incorporated the rules as evidence as a plea of an issue already tried in an earlier case. Judgment of this case was difficult as the judges should apply res judicata. It was decided that res judicata is not exhaustive and even if the matter is not directly covered under the provisions of the section it will be considered as a case of res judicata on general principles.   

Rationale

The principle of res judicata is founded upon the principles of justice, equity, and good conscience and it applies to various civil suits and criminal proceedings. The purpose of this principle was to inculcate finality into litigation.

Failure to Apply

When a  court fails to apply Res Judicata and renders a divergent verdict on the same claim or issue and if the third court faces the same issue, it will apply a “last in time” rule. It gives effect to the later judgment and it does not matter about the result that came differently the second time. This situation is typically the responsibility of the parties to the suit to bring the earlier case to the judge’s attention, and the judge must decide how to apply it, whether to recognize it in the first place.

Doctrine of Res Judicata

The double jeopardy provision of the Fifth Amendment to the U.S. Constitution protects people from being put on a second trial after the case has been judged. So the doctrine of res judicata addresses this issue and it bars any party to retry a judgment once it has been decided.

Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata also known as “ rule of conclusiveness of judgment”. The doctrine of res judicata has been explained in the case of Satyadhyan Ghosal v. Deorjin Debi. The judgment of the court was delivered by Das Gupta, J. An appeal was made by landlords who attained a decree for ejectment against the tenants who were Deorajin Debi and her minor son. However, they have not been yet able to get possession in execution soon after the decree was made. An application was made by the tenant under Section 28 of the Calcutta Thika Tenancy Act and alleged that they were the Thika tenants. This application was resisted by the landlords saying they were not Thika Tenants within the meaning of the Act.

The tenants moved to the High Court of Calcutta under the Civil Procedure Code. The court applied the principle of res judicata to achieve the finality in litigation. The result came that the original court, as well as the higher court, can proceed for any future litigation on the basis that the previous decision was correct.

The doctrine of res judicata says –

  • That no person should be disputed twice for the same reason.
  • It is the State that decides there should be an end to a litigation
  • A judicial decision must be accepted as the correct decision.

Constructive Res Judicata

The rule of constructive res judicata in Section 11 of the Civil Procedure Code is an artificial form of res judicata. It provides that if a plea has been taken by a party in a proceeding between him and the defendant he will not be permitted to take pleas against the same party in the following proceeding with reference to the same matter.  It is opposed to public policies on which the principle of res judicata is based. It would mean harassment and hardship to the defendant. The rule of constructive res judicata helps in raising the bar. Hence this rule is known as the rule of constructive res judicata which in reality is an aspect of augmentation of the general principles of res judicata.

In the case of State of Uttar Pradesh v. Nawab Hussain, M was a sub-inspector and was dismissed from the service of D.I.G. he challenged the order of dismissal by filing a writ petition in the High Court. He said that he did not get a reasonable opportunity of being heard before the passing of the order. However, the argument was negative and the petition was dismissed. He again filed a petition on the ground that he was appointed by the I.G.P. and had no power to dismiss him. The defendant argued that the suit was barred by constructive res judicata. However, the trial court, the first appellate court as well as the High Court held that the suit was not barred by the doctrine of res judicata. The Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff, M and he could have taken this argument in his earlier suit.

Res Judicata and Estoppel

Estoppel means the principle which prevents a person from asserting something that is contrary to what is implied by a previous action. It deals in Section 115 to Section 117 of the Indian Evidence act. The rule of constructive res judicata is the rule of estoppel. In some areas the doctrine of res judicata differs from the doctrine of estoppel –

  • Estoppel flows from the act of parties whereas res judicata is the result of the decision of the court.
  • Estoppel proceeds upon the doctrine of equity, a person who has induced another to alter his position to his disadvantage can not turn around and take advantage of such alteration. In other words, res judicata bars multiplicity of suits and estoppel precludes multiplicity of representation of cases.
  • Estoppel is a rule of evidence and is enough for the party whereas res judicata expels the jurisdiction of a court to try a case and prevents an enquiry at the threshold (in limine).
  • Res judicata forbids a person averring the same thing twice in the litigations and estoppel prevents the person from saying two opposite things at a time.
  • According to the principle of res judicata, it presumes the truth of decision in the former suit while the rule of estoppel precludes the party ton deny what he or she has once called truth.

Res judicata and Res Subjudice

The doctrine of res judicata and res subjudice varies in some factors –

  • Res sub judice applies to a matter that is pending trial whereas res judicata applies to a matter adjudicated or arbitrated.
  • Res subjudice prohibits the trial of a suit that is pending decision in a previous suit whereas res judicata prohibits the trial of a suit that has been decided in a former suit.

Res judicata and Issue Estoppel

A person who has once been tried by a court of proficient jurisdiction for an offence and convicted of that offence cannot be tried again for the same offence as long as acquittal operates. This is given under Section 300(1) of the Civil Procedure Court. A party cannot proceed to reopen the case if the matter is finally decided by a competent or proficient court. This principle applies to criminal proceedings and it is not allowed in the stage of the same proceedings to try a person for an offence for which he has been acquitted.

Res Judicata and Stare Decisis

Res judicata means a case that has already been decided or a matter settled by a decision or judgment. Res judicata and stare decisis both are related to matters of adjudication (arbitration). Stare decisis rests on legal principles whereas res judicata is based on the conclusiveness of judgment. Res judicata binds the parties while stare decisis operates between strangers and bins the courts to take a contrary view on the law already decided. Stare decisis is mostly about legal principle while res judicata relates to controversy.

What is Res Judicata and Collateral Estoppel?

The doctrine of collateral estoppel says that an issue or case that has been litigated cannot be litigated again. For collateral estoppel to apply, the following requirements are required.

The issue in the first and second case is the same; The party against whom the doctrine is invoked had the full opportunity to litigate the issue; That party actually litigated the issue; The issue litigated must have been necessary to the final judgment.

The doctrine of res judicata bars the re-litigation of a claim that has already been litigated. There are four factors that must be satisfied for res judicata to apply:

  • A previous case in which the same claim was raised or could have been raised;
  • The judgment in the prior case involved the same parties or their privies;
  • The previous case was resolved by a final judgment on the merits;
  • The parties should have a fair opportunity to be heard.

For example, Abela sued John who is a supervisor for sexually harassing her and due to that, she had to quit her job. Abela provided the evidence by producing emails written by him. But John argued that the emails were not real but the judge said that the emails were real and could be submitted as evidence. After a few months after the trial, Abela filed a lawsuit against her employer as he did not take any action about the complaint. If the emails that were submitted by Abela, were not genuine the issue would fall under collateral estoppel. The issue of authenticity of the emails was already decided in the previous case and hence the court cannot redecide the issue.

Res Judicata landmark cases

Brobston v. Darby Borough

In the case of Brobston v. Darby Borough,  Brobston was the plaintiff who was injured while driving a vehicle on a public highway in the Borough of Darby. Due to a transit company that was occupying the street, the steering wheel of the machine was pulled by the driver’s hand. This resulted in injury to the complainant.

 A suit was filed against the street railway in the Court of Philadelphia to recover damages. It was proved that negligence was there on the part of both the parties also known as contributory negligence. The judgment was passed in favour of the defendant. Later action was again brought against the same defendant based on the same cause of action and against the same transit company. The judgment in the first proceeding was brought to the attention of the court. The plaintiff admitted that Brobston was the same person who was the plaintiff in the action brought earlier in Philadelphia.

The action was brought for injuries occurring at the same place and the verdict of the court was in favour of the defendant. The facts and cause of action were the same but the only difference was the name of the defendant. The legal question involved was what are the rights of the plaintiff in this case. The court refused the facts which were proven by the counsel. Hence a nonsuit was entered because of the earlier judgment. The plaintiff should have been permitted to call the witness but no merit was seen.

These conditions were entered in the record to enable the Court to pass the legal question involved. The plaintiff had the right to recover under the circumstances. The counsel made an offer to prove the facts which the court had refused to do. A complaint was made that the plaintiff must have been permitted to call the witness to establish the matters. The facts were essential for the legal determination of liability before the court and consent of both the parties were needed.

Henderson v. Henderson

Henderson v Henderson was a case in which the English Court confirmed that a party can not raise a claim in litigation which was raised in the previous suit. In 1808, two brothers Bethel and Jordan Henderson became business partners and they operated in both Bristol and Newfoundland. In 1817, their father died on a date that was not recorded. The wife of Jordan Henderson was appointed as the administrator and she brought legal proceedings in the Court. She also brought separate proceedings and claimed that he had failed to provide an account as executor of the will. The Court of Appeal held that there was no estoppel by convention and that the proceedings were an abuse under the rule in Henderson v Henderson. The Court of Appeal held that just one of Mr Johnson’s claims should be struck out for a reflective loss.

Johnson v. Gore Wood and Company

Johnson v Gore Wood and Company is a leading UK case in which the House of Lords decided the case relating to litigating issues that had already been determined in the previous litigation.  Mr Johnson was a director and majority shareholder in a lot of companies, including Westway Homes Limited and Gore Wood & Co were a firm of lawyers who acted for the companies and also occasionally worked for Mr Johnson in his personal capacity.

In 1998, Gore Wood was acting for the company and served notice to acquire land from a third party upon the lawyers for that third party. The third-party alleged that this was not service, and refused to convey the land. Legal proceedings followed and ultimately the company succeeded. However, because the third party was penurious and was funded by legal aid, the wood company was unable to regain the full amount of its losses and legal costs.

Accordingly, the wood company issued proceedings against Gore Wood for negligence and alleged that their losses would have been entirely prevented if Gore Wood had properly served the original notice on the third party instead of the third party’s lawyers.

Gore Wood ultimately settled those claims, and the settlement agreement included two provisions that were later proved that they were important. Firstly, it included a clause stating that any amount which Mr Johnson wished to subsequently claim against Gore Wood in his personal capacity would be limited to an amount, excluding interest and costs. The confidentiality clause contained an exception which permitted the settlement agreement to be referred which Mr Johnson brought against Gore Wood.

Mr Johnson then issued proceedings against Gore Wood in his personal name, and Gore Wood made applications to dismiss some or all of the claims on the basis that it was an abuse of process to seek to litigate again the issues which had already been compromised in the agreement.

Res Judicata landmark cases in India

Daryao v. State of Uttar Pradesh

In the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res judicata is of universal application. The Supreme Court of India placed the doctrine of res judicata on a still broader foundation. In this case, petitioners filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution. But the suit was dismissed. Then they filed independent petitions in the Supreme Court under the writ jurisdiction of Article 32 of the Constitution. The defendants raised an objection regarding the petition by asserting that the prior decision of the High Court would be operated as res judicata to a petition under Article 32. The Supreme Court dismissed and disagreed with the petitions.

The court held that the rule of res judicata applies to a petition under Article 32 of the Constitution. If a petition is filed by the petitioner in the High Court under Article 226  of the Constitution and it is dismissed on the basis of merits, it would be operated as res judicata to bar a similar petition in the Supreme Court under Article 32 of the Constitution.

Devilal Modi vs. Sales Tax Officer

In the leading case of Devilal Modi vs. STO, B challenged the validity of an order of assessment under Article 226. The petition was dismissed on the basis of merits. The Supreme Court also dismissed the appeal that was made against the order on the basis of merits. B again filed another writ petition in the same High Court against the same order of assessment. This time the petition was dismissed by the High Court. The Supreme Court held that the petition was barred by the principle of res judicata.

Avtar Singh v. Jagjit Singh

A peculiar problem arose in the case of Avtar Singh v. Jagjit Singh. A filed a civil suit, a contention regarding the arbitration of the Court was taken by B. The objection was sustained and the plaint was returned to the plaintiff for the presentation. The Revenue Court did not have any jurisdiction when A approached the Revenue Court so he returned the petition. Once again A filed a suit in the Civil Court. B contended that the suit was barred by the doctrine of res judicata.

Mathura Prasad v. Dossabai N.B. Jeejeebhoy

In the case of  Mathura Prasad v. Dossibai N.B. Jeejeebhoy, it was held that res judicata constitutes between the parties to the previous case and cannot move again in collateral proceedings. Generally, a decision by a competent court operates as res judicata even on point of law. However, a question of law which is not related to facts that gives rise to the right, will not operate as res judicata. When the cause of action is different or the law is different, the decision has been already altered by an authority. The decision made will be declared as valid and res judicata will not operate in the subsequent proceeding.

Exceptions to res judicata

Cases where Res Judicata does not apply-

The principle of res judicata does not apply in the Writ of Habeas Corpus as far as High Courts are concerned. Article 32 gives power to the Supreme Court to issue writs and some power is given to High Courts under Article 226. The Courts need to give proper reasoning while applying the doctrine of res judicata. There are some exceptions to res judicata which allow the party to challenge the validity of the original judgment even outside the appeals. These exceptions are usually known as collateral attacks and are based on jurisdictional issues. It is not based on the wisdom of the earlier decision of the court but the authority to issue it. Res judicata may not be applicable when cases appear that they need relitigation.

Instalment Supply private limited vs. Union of India

In cases of income tax or sales tax, the doctrine of res judicata does not apply. It was discussed in the case of Instalment Supply private limited vs. Union of India where the Supreme Court held that assessment of each year is final for that year and it will not govern in the subsequent years. As it determines the tax only for that particular period.

Bandhopadhya and others v. Union of India and others

In the case of P. Bandhopadhya and others v. Union of India and others, The appeal was made in the Bombay High Court and the appellants asserted that they will be entitled to receive an amount as damages. The Supreme Court bench held that the appellants were not entitled to receive damages which were pensionary benefits under the Pension Rules 1972. They were entitled to receive benefits as the case was barred by the principle of res judicata.

In the case of Public Interest Litigation, the doctrine of res judicata does not apply. As the primary object of res judicata is to bring an end to litigation so there is no reason to extend the principle of public interest litigation.

Dismissal of special leave petition in limine does not operate as res judicata between the parties. A fresh petition will not be filed either under Article 32 or under Article 226 of the Constitution.  

Beliram and Brothers v. Chaudhari Mohammed Afzal

In the case of Beliram and Brothers v. Chaudhari Mohammed Afzal, it was held that a minors suit cannot be brought by the guardian of the minors. However, it was brought in collaboration with the defendants and the decree obtained was by fraud within the Indian Evidence Act, 1872 and it will not operate res judicata.

Jallur Venkata Seshayya v. Thadviconda Koteswara Rao

In the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao, a suit was filed in the Court so that certain temples are called public temples. A similar suit was dismissed by the Court two years ago and the plaintiff contended that it was negligence on the part of the plaintiffs (of the previous suit) and therefore the doctrine of res judicata can not be applied. However, the privy council said that the documents were suppressed which means that the plaintiff in the earlier suit had bona fide intention( something that is genuine and there is no intention to deceive).

Can Res Judicata be waived?

In the case of P.C. Ray and Company Private Limited v. Union of India it was held that the plea of res judicata may be waived by a party to a proceeding. If a defendant does not raise the defence of res judicata then it will be waived. The principle of res judicata belongs to the procedure and either party can waive the plea of res judicata. The court can decline the question of res judicata on the ground that it has not been raised in the proceedings.

How to defeat Res Judicata?

The doctrine of res judicata would not apply to the case until the conditions are met. The essential condition for the applicability is that the succeeding suit or proceeding is founded on the same cause of action on which the former suit was founded. The principle of res judicata can be defeated when the party has filed the suit on a reasonable ground for example in case a public interest litigation has been filed there is no reason not to extend the doctrine of res judicata. The PIL has been filed with a bona fide intention and the litigation cannot end.

Criticism to Res Judicata

Res judicata can also be applied to judgment that may be contrary to law. The doctrine of res judicata has been used for a long time and it encloses the general effect of one judgement upon another trial or proceeding. It includes matters not only those of bar but also those matters which should be litigated. For example, if a case has been dismissed on a specific ground by a court of law or equity and it is not deemed as a final judgment and technically res judicata will apply but it is not justified. If the chancellor has denied equitable relief on a principle but it was held by the court that the plaintiff is barred from proceeding as a legal remedy. Most of the equity cases involve res judicata and do not get beyond collateral estoppel. As it raises the difficulty of overlapping more than the failure to litigate issues.

The title to real estate and the right to collect rent depended upon one and the same construction of a will. In an interpleader over the rents, A got the decree. B appealed, without supersedeas, and secured a reversal, but, before his appeal was decided, A had sued him in ejectment, invoking the decree, and recovered a judgment for the real estate. B did not appeal from this judgment, but, after the reversal of the decree, he sued A in ejectment for the land, relying upon the reversal.

Restitution (Sec. 144)

Doctrine of restitution

The doctrine of restitution implies to brings the aggrieved party to the original position where the benefit of the erroneous judgment of the court is received by the other party who was not entitled to such benefit.  Restitution is not a new concept and Section 144 merely gives statutory recognition to this principle. Section 144 of CPC deals with the application for restitution.

Section 144 states that:

When a decree or order of the Court has been:

varied/reversed in any appeal, revision or other proceedings;

is set aside/ modified in any suit instituted for that purpose.

The Court that passed the decree/order will grant restitution on receiving an application of the party entitled to the benefit

The court in the case of Mahjibhai Mohanbhai Barot vs Patel Manibhai Gokalbhai held that an application for restitution is an application for execution of a decree.

The Supreme Court in the case of Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Das held that the party who received the benefit of the erroneous judgment is by law under an obligation to make restitution to the other party for his loss.   

The same view was reiterated by the court in the case of Binayak Swain vs Ramesh Chandra Panigrahi, the doctrine of restitution means that, on reversal of a decree or order, an obligation is imposed by law on the party who has received the benefit of the erroneous decree to make restitution to the other party for his loss. This obligation automatically arises when the decree or order is reversed or modified by the Court. It necessarily carries with it the right of restitution for all the things that have been done under the erroneous decree. The Court while making restitution is under a duty to restore the parties, as far as possible, at the time when the erroneous action of the Court displaced them.

The Apex Court in the case of Union Carbide Corporation v. Union of India held that restitution is a principle of equity and is subject to the Court’s discretion. Section 144 of CPC doesn’t grant any new substantive right to the party not already obtained under the general law. The Court is obliged to ensure that no one goes back with a feeling that he was impaired by an act which he did on the faith of the Court’s order.

Actus curiae neminem gravabit

The Latin maxim actus curiae neminem gravabit means the act of court should not affect anyone and is founded upon the principle of equity. The Court is obliged to ensure that no one is endured by its order and it should not pass any order to the prejudice of any person. The apex court reiterated the maxim of actus curiae neminem gravabit in the case of Odisha Forest Development Corporation v. M/s Anupam Traders.    

Conditions

In applying for restitution, the following conditions must be fulfilled:

The decree/order must have been varied or reversed in any appeal, revision or is set aside or modified. The party in respect of the reversed or modified decree/order must be entitled to benefit by way of restitution or otherwise. The relief claimed by the party must be properly consequential of the variation, reversal, setting aside or modification of the decree/order.

The Orissa High Court in Banchhanidhi Das vs Bhanu Sahuani laid down certain principles to be followed for the application of restitution:

There should be an erroneous judgment passed by the court. The party to the record must have received the benefit of the erroneous judgment. The party applying for restitution must show that as a consequence of the erroneous judgment or decree, a party received the benefit.

The erroneous judgment or decree must have been reversed in appeal.

Who may apply?

A person may apply for restitution who:

Was a party to the order or decree being varied, reversed, set aside, or modified. Is entitled to any benefit by way of restitution or otherwise in respect of the order or decree being varied, reversed, set aside, or modified.    

Against whom restitution may be granted?

The court may grant restitution against the party who has wrongly received the benefit under the erroneous decree or order of the court. The party receiving the benefit is under an obligation to make restitution to the party for what he has lost.

Who may grant restitution?

The court which has passed the original decree or order may grant restitution on an application being made to it by the party who is entitled to benefit from such reversed or varied decree or order.

What remedies can the court can grant?

The court under Section 144 can make any orders as a consequence of a decree or order being varied, reversed, modified, set aside for the refund of costs and for payment of interest, damages, compensation, and mesne profit.

Nature of proceeding

The nature of proceeding under Section 144 is execution proceedings. The process to get an order or decree into effect is called execution proceedings.

Extent of restitution

Section 144 is not exhaustive but inclusive. Even if a matter does not fall within the scope of Section 144, the court has the power to grant restitution on its discretion.   

Inherent power to grant restitution

Under Section 151, a court has an inherent power to make such order as may be necessary for meeting the ends of justice or to prevent the abuse of the process of Court other than the power to grant restitution under Section 144. The power of the court to grant restitution is not confined only to Section 144, the court has an inherent power to grant the remedy of restitution where Section 144 does not apply. There are different circumstances in which the court can order to restore the status quo ante (previously existing state of affairs) to meet the ends of justice.

It was held in K.N. Krishnappa vs T.R. Gopalkrishna Setty that under Section 151 C.P.C, the inherent powers of the Court can be invoked for restoring the parties to the position in which they were, prior to the execution.

Bar of Suit

Section 144(2) bars a separate suit instituted for obtaining any remedy if restitution or other relief could be obtained by making an application under Section 144(1).

Caveat (Sec. 148A)

Meaning of Caveat

The caveat in Latin means “let a person be aware” and in law, it may be understood as a notice given asking not to act in a certain manner without informing the person who gave such a notice. Under the Civil Procedure Court, the provision of caveat is dealt with in Section 148A. Even Though CPC does not define caveat in the case of Nirmal Chand v. Girindra Narayan, the court defined caveat as a warning given by an individual to the court that no order or judgment shall be passed without giving notice or without hearing the caveator. The person who files a caveat is called the Caveator and the person who has instituted a suit or is likely to do so is called caveatee. The main object of caveat is to ensure that the court does not pass ex parte orders and that the interests of the caveator are protected. Caveat also reduces the burden of court and brings an end to the litigation as it reduces the multiplicity of proceedings. As the purpose of the caveat was to save the cost and convenience of the court, in Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma, the court held that no caveat can be lodged by a total stranger to the suit.

When to lodge a Caveat?

According to Section 148A, when people apprehend that some case against them is filed or is about to be filed in any court of law in any manner, they have a right to lodge a caveat. The Caveat may be lodged in the form of a petition under the following circumstances:

During an ongoing suit or litigation and in that the application is already been made or is expected to be made; The suit is about to be instituted and in that suit, an application is expected to be made.

Thus, firstly it is always about an application in a suit of the proceeding and secondly that suit or proceeding can be in the present which is already instituted or it can be in the future where a suit is not instituted yet but the same is expected. In all such situations the right to lodge a caveat arises.

Who may lodge a caveat?

Section 148A further provides that a caveat may be filed by any person, whether a party to the suit or not, as long as the person filing the caveat has the right to appear before the court in regard to the suit in question. Thus caveat can be filed by a third party as well, if they in any manner are connected to the suit in question. However, as it is already discussed that a caveat cannot be lodged by a person who is a total stranger to the case and the same principle was laid down in Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma. To conclude, this clause is substantive in nature and caveat may be filed by any person claiming a right to appear before the Court.

Where can a caveat be lodged?

As and when the caveator anticipates some legal proceedings to be filed against him in the near future, he can file a petition for a caveat in any Civil Court of original jurisdiction, Appellate Court, High Court as well as Supreme Court. Civil Courts include Courts of Small Causes, Tribunals, Forums, and Commissions. However, in Deepak Khosla v. Union of India & Ors, the court held that Section 148A of the code applies to civil proceedings only and caveat cannot be made against petitions made under the Criminal Procedure Code or petition made under Article 226 of the Constitution of India.

How to file a caveat?

A caveat under Section 148A shall be signed by the caveator or his advocate. Where the caveator is represented by an advocate, it should be accompanied by his Vakalatnama. The caveat presented shall be registered in a caveat register maintained by the courts in the form of a petition or any other form that may be prescribed. The register of caveat contains the date of caveat, name, and address of caveator, name of the plaintiff, the name of the defendant and date and a number of proceedings filed as anticipated by the caveator. A caveat is always filed with a copy, the postal proof and an application explaining to the court that a copy of the caveat has been sent to all the parties and thus the court need not do the same. Even though the court fees of filing a caveat varies for different courts, it is generally a nominal amount of less than INR 100. The rules and format of the caveat are similar for most of the courts.

While filing a petition of caveat in Delhi High Court, follow the below-mentioned steps:

Support the caveat petition with an affidavit. Both petition and the affidavit should be signed by the caveator; Apart from this, a vakalatnama, impugned order (if any), and proof of service of notice of caveat is also to be submitted to the Court.

What does a caveat contain?

A caveat or a notice given to the court that certain actions may not be taken without informing the caveator should contain the following information:

  • Name of the caveator;
  • Address of the caveator where the notice would be sent;
  • The name of the court where such caveat is filed;
  • The number of the suit and the number of the appeal if applicable;
  • Brief details about suit or appeal likely to be filed;
  • Name of the probable plaintiffs or appellants and the respondents.

If subsequent to the filing of a caveat, any application is made in any suit or legal proceeding, the court is required to give notice about such an application to the caveator. When a notice has been served on the applicant, the applicant at the expense of the caveator is required to provide the caveator with a copy of the application made by him along with any document that may have been submitted with the application. If the court or applicant ignores the caveat and does not inform the caveator, the decree or judgment passed becomes null and void.

The Reserve Bank of India Employees association & anr. V. The Reserve Bank of India & Ors, a caveat petition was filed by the appellants apprehending an injunction order by the respondent. For the caveat filed, the plaintiffs were served with a notice and all other relevant papers or documents. They were also informed that the application will be moved on 28-10-1980. However, the application was not heard on the said date, rather heard later on 30-10-1980. The petitioners argued that as the court failed to provide the plaintiff with the notice of the order, the judgment would be void and null, in accordance with clause (3) of Section 148A. The court disagreed with the appellants and held that caveat gives the right to be informed about hearing of the case and not takes away the right of a court to deliver a judgment or order on the merits of the case. Mere lodging of caveat does not deprive the court of its power to deliver orders or judgments.

However, the precedent set in the above case was overruled in C.G.C Slddalingappa v. G.C Veeranna, wherein the applicant on filing a caveat was served with a notice. However, the case was decided on a later date without giving notice to the appellant about the same. The court held that the provision regarding notice under Section 148A(3) is mandatory and non-compliance of the same defeats the very object of 148A, thus the order passed is void and null.

Right and duties

When a caveat is filed, it gives certain rights and duties to the caveator, applicant as well as the court. Let’s consider all these rights and duties separately:

Rights and duties of the caveator

Clause (2) of the section provides that when a caveat has been lodged under sub-section (1), the caveator shall serve a notice of the caveat to the person by whom the application has been made or is expected to be made under sub-section (1). The caveator at the time of lodging the suit says that either there is a suit in the present and in which I expect an application is going to be made or there is an application existing in the suit and I want to be represented, or he says that a suit is going to be filed in the future and in that suit an application will be made and in that application I want to be represented. So whenever such an application comes, the caveator has the right to be informed. However, before he becomes entitled to notice, he has to give a notice saying that I have lodged a caveat to the person from whom he is expecting such an application to be made. In other words, the caveator has to serve notice by registered post, on the applicant who is going to file this application or who has already filed an application, saying that whenever you file an application, you are bound to give notice.

Rights and duties of court

The duty of the court arises, once the caveat is lodged and notice is served upon the applicant. Clause (3) of the Section provides that after a caveat has been lodged and thereafter any application is filed in any suit or proceeding, the court has to serve a notice to the caveator. This means that once the caveator has filed the caveat saying I want to be represented and after that, an actual application has been filed within the next 90 days, in that case, the court will serve a notice to the caveator, informing him that the application that was expected by him has been filed and the caveator thereby has the right to be heard before the court.

Rights and duties of the applicant

In addition to the court giving notice, the applicant is also required to serve a notice to the caveator, informing that an application in regard to the caveat filed has been made. Clause (4) of the section, directs the applicant to provide a copy of the application made by him along with any other document or paper that may have been fled by him in support of his application to the caveator. The Court will not move forward with the application unless an affidavit is submitted by the applicant that a notice has been served to the caveator.

Limitation of time

As provided by the section in clause 5, the caveat stays in force for a period of 90 days. If within these 90 days an application is filed, then the court, as well as the applicant, has to give notice to the caveator. However, if no caveat is filed within these 90 days, then no one has the duty to inform the caveator, i.e. if the application is filed after the expiration of such period the caveat stands null and void. If the caveator still wants to be informed then a fresh caveat needs to be lodged for the next 90 days.

Common mistakes made while filing a caveat

Some of the common mistakes made while filing caveat are as follows:

The caveat is often filed in support of an application, it is important to remember that caveat can be made only against an application; Caveator forgets to serve a notice to the applicant, which is mandatory under Section 148A of CPC. Caveators often claim that the order or judgment was incorrect because the notice was given, even after the expiration period. It is important to remember that after 90 days, a fresh caveat needs to be filed.

Inherent power of Courts (sec – 148-153B)

Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable, essential or characteristic attribute. Inherent powers of courts are those powers which may be applied by the court to perform full and complete justice between the parties before it. It is the duty of the Courts to serve justice in every case, whether given in this code or not, brings with it the important power to do justice in the absence of a definite or separate provision. This power is said to be the inherent power that is maintained by the court, though not conferred. Section 151 of the Civil Procedure Code deals with the inherent powers of the court.

Provisions of Section 148 to 153B of CPC

The law relating to inherent powers of Court is mentioned in Section 148 to Section 153A of the Civil Procedure Code, which deals with the exercise of powers in different situations. Following are the provisions of Inherent powers of Courts:

  • Section 148 and Section 149 deals with grant or enlargement of time;
  • Section 150 deals with the transfer of business;
  • Section 151 protects the inherent powers of the courts; and
  • Section 152, 153 and Section 153A deals with amendments in judgments, decrees or orders or in separate proceedings.

Enlargement of time

Section 148 of the CPC states that where any term is fixed or awarded by the Court for the doing of any act provided by CPC, it is the discretionary power of the Court that the Court may enlarge such period from time to time, even though the term originally fixed or awarded may have departed.

In simple words, when a term is fixed by provision for the doing of any act, the Court has the power to extend such period up to 30 days. This power is exercisable in the deficiency of any specific provision to the contrary which reduces or rejects or withholds the period. The power is limited to the extension of the time fixed by it and is of a discretionary nature.

Payment of court fees

According to Section 149 of CPC, “Where the entire or a portion of any fee commanded for any certificate by the law for the time being in force relating to court-fees has not been met, the Court may, in its discretion, at any step, permit the person by whom such fee is payable, to pay the whole or part as the case may be, of such court-fee; and upon such payment, the document, in regard of which such fee is payable, shall have the same force and result as if such fee had been paid in the initial situation.”

It permits the court to allow a party to make up for the lack of court fees due on a complaint or notice of appeal etc., even after the expiry of the limitation period for filing of the lawsuit or appeal, etc. Payment of the expected court fee is compulsory for any document imputable with court-fee to be presented in the court. If the necessary court fee is paid within the time set by the court, it cannot be negotiated as time-barred. Such payment made within the time fixed by the court retrospectively validates a faulty document. The power of the court is discretionary and must be exercised only in the importance of justice.

Transfer of business

According to Section 150 of CPC, “Save as otherwise granted, where the business of any Court is assigned to any other Court, the Court to which the business is so assigned shall have the same authority and shall make the same duties as those sequentially presented and forced by or under this Code upon the Court from which the business was so assigned.”

For example- When the business of a court A is transferred to any other court B, the court B will exercise the same power or perform the same duties given or commanded by CPC upon the transfer court.

Section 151 of CPC

Section 151 deals with “Saving of inherent powers of Court.” This Section states that ‘Nothing in CPC shall be considered to restrict or otherwise affect the inherent power of the Court to make such orders as may be important for the ends of justice or to limit abuse of the method of the Court.’ It is not obligatory for the court to wait for the law made by parliament or order from the higher judiciary. Court has discretionary or inherent power to make such an order which is not given in terms of laws for the security of justice or to check misuse of the method of the Court.

The scope of exercising of Section 151 of CPC can be represented by some cases as follows:

  • The court may recheck its orders and resolve errors;
  • Issuance of provisional sanctions when the case is not included by order 39 or to place alongside an ‘ex parte’ order;
  • Illegal orders or orders passed without jurisdiction can be set-aside;
  • Subsequent events in the case can be taken into consideration by the court;
  • Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;
  • The court can erase remarks made against a Judge; and
  • The court can improve the suit and re-hear on merit or re-examine its order.

Ends of justice

In the case of Debendranath v Satya Bala Dass, the meaning of “ends of justice” was explained. It was held that “ends of justice” are solemn words, also there’s words that are not merely a polite expression as per juristic methodology. These words also indicate that Justice is the pursuit and end of all law. However, this expression is not vague and indeterminate notion of justice according to laws of the land and statutes.

The Court is allowed to exercise these inherent powers in cases like- to recheck its own order and correct its error, to pass injunction in case not included by Order 39, and an ex parte order against the party, etc.

Abuse of process of the court

Section 151 of the CPC provides for the exercise of inherent powers to check the infringement of the process of the court. Abuse of the powers of the court which happens in unfairness to the party needs to get relief on the ground that the act of a court shall not prejudice anyone. When a party practices fraud on the court or on a party to a proceeding, the remedies have to be provided on the basis of inherent power.

The word ‘abuse’ is said to occur when a Court uses a method in doing something that it is never expected to do is the perpetrator of the said abuse and there is a failure of justice. The injustice done to the party must be given relief on the basis of the doctrine of actus curiae neminem gravabit (an act of the court shall prejudice no one). A party to a case will become the perpetrator of the abuse in cases when the said party does acts like obtaining benefits by functioning fraud on the Court or a party to the proceedings, prompting the multiplicity of proceedings, etc.

Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.” According to Section 152 of CPC, the Court has the power to change (either by own actions or on the application of any of the parties) written or arithmetical mistakes in judgments, decrees or orders or faults arising from an unexpected lapse or imperfection.

Section 153 deals with the “General authority to amend.” This Section empowers the court to amend any fault and error in any proceedings in suits and all required improvements shall be made for the purpose of arranging raised issues or depending on such proceeding.

Section 152 and 153 of the CPC makes it clear that the court may set correct any blunders in their experiences at any time.

Power to amend decree or order where an appeal is summarily dismissed and place of the trial to be deemed to be open Court are defined under Section 153A and 153B of CPC,1908.

Limitation

The exercise of inherent powers carries with it certain barriers such as:

They can be applied only in the deficiency of particular provisions in the Code; They cannot be applied in dispute with what has been expressly given in the code;

They can be applied in rare or exceptional cases; While operating the powers, the court has to follow the method shown by the legislature; Courts can neither exercise jurisdiction nor entrust in them by law; To abide by the principle of Res Judicata i.e., not to open the issues which have already been decided finally; To pick a mediator to make an award afresh; Substantive rights of the parties shall not be taken away; To limit a party from taking proceedings in a court of law; and To set apart an order which was valid at the moment of its issuance.

Execution of Judgement and Decree (Order 21)

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means implementing or enforcing or giving effect to an order or a  judgment passed by the court of justice. In simple words “execution” means the process of enforcing or giving effect to the decree or judgment of the court, by compelling the judgment-debtor to carry out the mandate of the decree or order and enable the decree-holder to recover the thing granted to him by judgment.

Illustration:

X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be called the decree-holder,  Y is the judgment-debtor, and the amount of Rs 20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him. Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by execution through the judicial process. The principles governing the execution of a decree or order are given in Section 36 to Section 74 (substantive law) and Order 21 of the code which provides for procedural law.  

Execution proceedings under CPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of the code relating to the execution of orders and decree and stated that the Code contains elaborate provisions which deal with all questions regarding executability of a decree in all aspects.

The Court further observed that numerous provisions of Order 21 take care of various situations providing effective remedies to judgment-debtors, decree-holders and claimant objectors. In the cases, where provisions are not capable of giving relief inadequate measures and appropriate time, to an aggrieved party, then filing a regular suit in the civil court is the solution. The Court further explained that the judicial quality of the remedy under Civil Procedure Code is considered to be superior as compared to other statutes therefore, the judges are expected to do better as they are entrusted with the administration of justice

Courts which can execute decrees

Section 38 of the Code states that a decree can be executed either by the Court of the first instance or by the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of the expression “court which passed a decree” with the object of enabling a decree-holder to recover the fruits of the decree. The courts which fall within the said expression are as follows:

The court of the first instance;

The court which actually passed the decree in case of appellate decrees;

The court which has jurisdiction to try the suit at the time of execution, if the court of first instance ceased to exist; The court which at the time of execution had jurisdiction to try the suit, if the court of first instance has ceased to have jurisdiction to execute the decree.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to execute a decree even in the case of any area being transferred from the jurisdiction of the court of first instance to the jurisdiction of any other court. In such cases, the court to the jurisdiction of which such area has been transferred will also have jurisdiction to execute the decree, provided that the said court had jurisdiction to try the said suit when the application for execution was made.

Transfer of decree for execution

Section 39 provides that when a decree-holder makes an application to the court of the first instance to send the decree for execution to another court, the court of first instance may do the same if any of the following grounds exist:

If the judgment-debtor carries on business, or resides or personally works for gain, within the jurisdiction of such Court; if the property of judgment-debtor does not come under the jurisdiction of the Court of the first instance but it comes under the local limits of the jurisdiction of such Court;

If the decree directs delivery or sale of immovable property situated outside the jurisdiction of the Court which passed the same; If the Court which had passed the decree considers that the decree should be executed by another court, but it shall record the reasons in writing for doing the same.

Section 39(2) states that the Court of the first instance may suo motu send it for execution to any subordinate Court of competent jurisdiction.

The Section further states that if the execution of the decree is against a person or property outside the territorial jurisdiction of the court passing the decree, then such Court has no power to execute the decree.

In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of Section 39 are not mandatory because the court will have discretion in the matter which can be exercised by it, judicially. The decree-holder would not have any vested or substantive right to get the decree transferred to another court.

Execution of foreign decrees in India

The Code lays down the procedure for execution of foreign judgments and decrees in India. While enforcing a foreign judgment or decree in India it should be ensured that the judgment or decree is a conclusive one, given on the merits of the case and by a court having competent jurisdiction.

What is a foreign judgment and a foreign decree?

Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As per section 2(5) of CPC, a foreign court implies a court which is situated outside India and which is not established or continued by the authority of the Central Government.

A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or judgment of such court and which directs that a sum of money is payable. However, such sum of money shall not be a sum payable in respect of taxes or other charges of a like nature or in respect of any penalty or fine. It should not include an arbitral award, even if such an award is enforceable as a decree or judgment.

Foreign judgment or decree needs to be conclusive

A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays down the test for conclusiveness of a foreign judgment or decree, which says that a foreign judgment would be conclusive in all cases except the following:

  • When a court of competent jurisdiction has not pronounced it;
  • When it has not been pronounced on the merits of the case;
  • When it has been based on a wrong view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
  • When the proceedings carried out while obtaining the judgment are opposed to natural justice; When such judgment has been obtained by fraud;
  • When it sustains a claim that had been based on a breach of any law in force in India.

Thus, a foreign judgement or decree shall pass the seven tests mentioned above. Otherwise, such foreign judgment or decree cannot be enforced in India as such judgment or decree will not be regarded as conclusive if it fails any of these tests.

Mode of enforcement of a foreign judgment or decree

Two ways in which a decree or foreign judgment can be enforced in India are as follows:

Where the decree or judgment has been given by a court in a reciprocating territory;

Where decree or judgment has been given by a court in a non-reciprocating territory.

Execution of foreign decree of a reciprocating territory in India

According to Section 44A of the CPC, a decree of any superior court of a reciprocating territory shall be executed in India as that has been passed by the district court.

“Reciprocating territory“ signifies, any territory or country outside India which the Central Government has declared to be a reciprocating territory, by notification in the Official Gazette, and “superior courts“, with reference to any reciprocating territory, means such courts that would be specified in the said notification.

Therefore, a judgment which has been pronounced by a court of a reciprocating territory can be enforced in India as an Indian decree by filing an execution application. A certified copy of a decree of any superior court of a reciprocating territory should be filed in a District Court, once this is done, the decree shall be executed as if it had been passed by the District Court of India and the provisions governing execution which are laid down in Order 21 of the CPC will be applicable to the decree.

While filing the execution application the original certified copy of the decree shall be filed along with a certificate from the superior court stating the extent to which the decree has been satisfied or adjusted.

Execution in case of decrees from non-reciprocating territories

In the cases where a judgment or decree has not been pronounced by a court of a reciprocating territory, it can be executed only when a fresh suit on that foreign judgment is filed in a court of  India which has competent jurisdiction to entertain the same.

The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine Construction & Engineering Ltd., observed that when a decree has been pronounced by a court of a non-reciprocating foreign territory, it can not be executed unless a fresh suit has been filed by the decree-holder on that foreign decree or on the original cause of action, or both. The suit must be filed within a period of three years from the date of the judgment or decree. The person seeking execution shall show that the foreign decree passes the tests of Section 13.

The court further observed that Section 13 of the Code provides substantive law and Section 44A of the Code is an enabling provision and it enables a decree-holder to put a decree obtained from a court of a reciprocating territory into execution. Section 13 clearly expresses the principles of private international law, that a court will not enforce a foreign judgment of a competent court.

Execution of Indian decrees in a foreign territory

Section 45 of the Code is related to the execution of decrees outside the territory of India. It states that a Court has the power to send a decree for execution to a Court outside India which has been established by the Central Government’s authority. It should be ensured that the State has, by notification in the Official Gazette, declared the said section can apply to such Court. A plain reading of the aforesaid  provision yields the following features:

The decree which has to be executed should be of an Indian Court and it should be for execution in a foreign territory.

The Central Government should have established the transferee court in such foreign territory. The State Government should have declared by notification in the Official Gazette that this section will apply to the said foreign Court.

The provision, therefore, prescribes the prerequisite conditions for the execution of an Indian decree outside the country. Therefore, in the absence of either of the aforesaid conditions in Section 45, an Indian Court has no jurisdiction to send its decree for execution to a Court not situated in India.

Execution of decree at more than one place

There is no provision in the Code which prevents a decree-holder from executing a decree simultaneously at more than one place against the property of the judgment-debtor.

In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court observed that “simultaneous execution proceeding in more than one place is possible but the power shall be used in a restricted manner, in exceptional cases by imposing proper terms so that the judgment debtors do not face any hardship because of several executions are being allowed to be proceeded with at the same time.” Therefore, simultaneous execution proceedings are not without jurisdiction or illegal.

Moreover, as per Section 39 of the Code, simultaneous execution of a decree is permissive in nature as it provides for execution of a decree either by the Court of first instance or by the Court to which it is sent for execution.

Procedure in execution

Section 51 to 54 of the Code talks about the procedure in execution.

Section 51

The section states the jurisdiction and power of the court in executing a decree. An application for execution of the decree can either be oral or written. The court may execute decree as per the mode of implementation prayed by the decree-holder or as the court deems fit.

Mode of executing decree

  • By delivery of any property (movable or immovable) specifically decreed.
  • By sale of the property with or without the attachment of the property. If the property is situated within the jurisdiction of the court then it has the power to attach the property.
  • By arrest and detention. However, this mode should not be exercised without giving a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be imprisoned.

Execution by appointing a receiver

If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in the execution of a decree then clause(e) comes into play.

Section 52

This section deals with the cases where the decree is passed against the legal representative of the judgment-debtor (deceased). So long as the property of the deceased remains in the hands of a legal representative, a decree can be executed against the property, if it is for the payment of money out of the property of the deceased and if the decree has been passed against the party as the legal representative of the deceased person.

In a situation where the property which is in the possession of the judgement-debtor came in the hands of the legal representative and it has not been duly applied by him, the court will enforce the execution of the decree against him as if the decree was to the extent passed against him personally.

Section 53

The Section states that when a property is liable for payment of a debt of a deceased ancestor and it is in the hands of a son and descendant, then the property will be deemed to be of the deceased which has as his legal representative come into the hands of the son or other descendants.

Section 54

When a decree has been passed for partition or for the separate possession of a share of an undivided estate for the payment of revenue to the government, this section comes into play. The partition of the estate or share needs to be made by the collector,  but if the collector denies making the partition of the revenue paying property, then the civil court can do so. To attract the provisions of this section, the plaintiff asking for the division of government revenue is not deemed as an essential condition.

Powers of the transferor court

Once a court which has passed a decree and transferred it to another court of competent jurisdiction, it would cease to have jurisdiction over that decree and it cannot execute the decree. Then, only the transferee court can entertain an application for execution.

Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has been sent for execution to another district, it may be executed by either the district court to which it was sent or by a subordinate court which has competent jurisdiction, to which the district court may refer it.

Section 42 provides for the powers of the transferee court and states that the Court to which a decree has been sent for execution shall have the same powers in execution of such decree as if it had been passed by itself.

The Court has the power to punish the persons who cause obstructions in the execution of the decree and the power shall be exercised by the court as if the decree has been passed by it. The main object of giving such powers to the transferee court is to ensure that the judgment-debtor pays the money or gives such other thing to the decree-holder as would be directed by the decree.

The Court will have the following powers, namely:—

  • To send the decree for execution to another Court under section 39.
  • To enforce execution of a decree against the legal representative of the deceased judgment-debtor under section 50.
  • To order attachment of a decree.

However, the court to which a decree is sent for execution will not have the power to order execution at the instance of the transferee of the decree and the power to grant leave to execute a decree passed against a firm against any person, other than a person referred to in Rule 50 of Order XXI.

Powers of executing court

The section states the jurisdiction and power of the court in executing a decree. An application for execution of the decree can either be oral or written. The court may execute decree as per the mode of implementation prayed by the decree-holder or as the court deems fit.

Mode of executing a decree

By delivery of any property (movable or immovable) specifically decreed.

By sale of the property with or without the attachment of the property. If the property is situated within the jurisdiction of the court then it has the power to attach the property.

By arrest and detention. However, this mode should not be exercised without giving a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be imprisoned.

Execution by appointing a receiver.

If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in the execution of a decree then clause(e) comes into play.

Jurisdiction and Place of Suing (Sec. 15 to 20)

Meaning of jurisdiction

In general meaning, Jurisdiction is the power of the Court to take the cognizance of an offence and to determine the cause of action.

According to Black’s Law dictionary Jurisdiction means “A court’s power to decide on a case or issue a decree.”

The jurisdiction was defined in the case of Hirday Nath vs  Ram Chandra. The High Court of Calcutta stated that jurisdiction may be defined as judicial power of Court to hear and determine the cause and adjudicate upon it.

Jurisdiction is decided mainly on the basis of:-

  • Pecuniary value
  • Local limits of Court
  • The subject matter of Court

So the Court before taking the cognizance of offence, the following points needs to be taken into consideration:-

  • The pecuniary value of the suit
  • The nature of the case
  • The territorial limits of the court

It is not only sufficient that forum must have an authority to deal with the matter or that the court has a pecuniary jurisdiction or the court has a local jurisdiction but the court must be competent enough to grant the relief in such matter.

Jurisdiction of Civil Court (Section 9)

The word civil is not defined in section 9 itself. According to Dictionary “civil rights is private rights and remedies that are different from the criminal and political”. The word “nature”  indicates the identity or essential character of a person or thing. So, we can draw the definition of suits of civil nature means that the suit in a dispute relating to private rights and the suit must not be related to a political or criminal matter.

The civil court shall have jurisdiction to try all the suits except the suit which is impliedly or expressly barred.

A suit which is related to the right to property or suit in which office is contested is of civil nature suit, notwithstanding that such right may depend entirely on the decisions of questions as to religious ceremonies or rites. It is immaterial whether the fees to the office are attached or not, or whether such an office is attached to a particular place or not.

The suit which is expressly barred means the suit which is barred by any statute or any other law for the time being in force. The legislature has an option to bar the jurisdiction of the civil court with respect to a particular class of suit keeping itself with the ambit of the power conferred on the Constitution of India. The establishment of the tribunal has taken away the jurisdiction of the civil court with regard to the subject matter that is allotted to the tribunal on the first instance, however, if any questions related to law raised, or any provision of the act so created the tribunal can be looked into by the civil court.  The civil court has no jurisdiction over the matter in which court under the Code of Criminal Procedure, Revenue Court has exclusive jurisdiction, or matter is dealt with special tribunal dealt under special statutes. example Motor Accidents Claims Tribunal, Cooperative Tribunal.

A suit is impliedly barred when it is barred by either the general principle of law or general conduct of law. The basic purpose of barred impliedly is that the court should not deal with the matter which causes injurious to the public or which is against the public will.

In the case of P.M.A Metropolitan vs Moran Mar Marthoma [2],

The Supreme Court observed that:-

  • The phrases used in section 9 has a positive and negative meaning
  • The earlier part has a wider sense as it covers all the matter of civil nature; on the other hand, the latter part has a wider sense as it excludes the matter which is impliedly or expressly barred.
  • The two explanations mentioned in Section 9 expresses the legislative intentions.
  • It cast an obligation on the court to exercise the jurisdiction for the enforcement of private rights
  • No court is at discretion to refuse the matter which falls under this section
  • It is mandatory to take the cognizance of matter because the word “shall” is used which means that it is a mandatory section.

In the case of  Shankar Narayanan Potti vs K. Sreedevi

The Supreme Court held that the ‘Civil Court has inherent jurisdiction in all types of civil matter as per Section 9 of CPC unless the suit is expressly or impliedly barred.”

This means that Legislature can exclude the jurisdiction of the civil court by inserting a provision or clause in any Act itself.

In the case of State of A.P VS Manjeti Laxmikanth Rao, the court held that for the purpose of constructing the test to determine the exclusion of civil court it is necessary to look into the intent of the legislature to exclude the jurisdiction. It means that the test is done to determine whether there is any reason for the exclusion of jurisdiction and if there is any reason, to further find out whether the just reason is justified or not. Although justification is not subjected to judicial review. Once the court satisfies itself of the reason, then it needs to determine whether the Act which excludes the jurisdiction provides an alternative remedy for the same or not. An alternative remedy must be in regard to such function which civil court must exercise in absence of such exclusion and would be empowered to pass any order which the civil court in similar circumstances would have passed.

In the case of Bar Council of West Bengal vs A. Austin. The High Court of Calcutta states that when the statute which bars the jurisdiction does not provide an alternative remedy then the jurisdiction of the civil court cannot be excluded.

In the case of Balawwa vs Hasanabi

If a part of the suit is excluded from the jurisdiction of civil court then it is not necessary that the entire suit cannot be instituted in the civil court.

In the case of Shri Panch Nagar Parak vs Purushottam Das. If there are no express provisions in any statute the court needs to look into the purpose, scheme and relevant provisions of the Act in order to determine implied exclusion of the jurisdiction of a civil court. Section 15 to 20 deals with the place of suing.

There are three kinds of jurisdiction to determine the place of suing:-

  • Territorial jurisdictions
  • Pecuniary jurisdictions
  • Subject matter jurisdiction

Whenever the suit is brought before the court the first question is to determine whether the court has jurisdiction to deal with the matter. If the court has all these (territorial, pecuniary, or subject matter jurisdiction then only the court has the power to deal with the case. In the case, if the court does not have any of the above-mentioned factors then it will be considered as lack of jurisdiction or the irregular exercise of jurisdiction. when the court who does not have jurisdiction decide the case and give a decision then such decision will be considered as void or voidable depending upon the different circumstances.

Pecuniary jurisdiction ( Section 15)

Every suit shall be instituted in the court of lowest grade competent to try it. The word competent denotes that the court must have the power to hear the case with regards to pecuniary jurisdiction. The court of lowest grade who has a jurisdiction with regards to pecuniary value shall deal with the case at first instance.

The issue arises:- who will determine the value of the suit?

Ordinarily, the plaintiff makes the valuation of the suit for the purpose of determining the pecuniary jurisdiction of the court unless it prima facie appears to the court that the valuation was not done correctly.  When the court finds that the valuation was either done overvalued or undervalued, then the valuation will be done by the Court and the court will direct the party to approach the appropriate forum.

The jurisdiction of the court is decided by the plaintiff valuation but not the amount for which decree is passed.

Lets us understand from an example, if the court has a pecuniary jurisdiction of Rs 15000 and the suit for recovery of accounts is filed on the valuation of suit done by the plaintiff. The valuation was of Rs 15000. Later the courts find that Rs 20000 is due, in this case, the court is not deprived of its jurisdiction to pass a decree for that amount.

It is the valuation done by the plaintiff to determine the jurisdiction of the court. But this does not mean that the plaintiff is set free to file for any arbitrary value and to choose the court in which he wants to file a suit.

When the court finds that valuation is done improperly for the purpose of avoiding the jurisdiction of the appropriate court, the court may require the plaintiff to prove that valuation was done in a proper manner.

Territorial Jurisdiction (Section 16 to 20)

It is divided into:-

  • Suits related to immovable property ( Section 16 to 18)
  • Suits related to Movable property ( Section 19)
  • Other suits( Section 20)

Section 16 states that the suit related to immovable property shall be instituted where such immovable property is situated.

It talks about the institution of the suit with respect to:-

  • Recovery of immovable property with or without profit or rent
  • Partition of immovable property
  • Foreclosure, sale or redemption in case of charge or mortgage upon immovable property
  • Compensation for a  wrong caused to immovable property
  • Determination of any interest or rights related to immovable property
  • Recovery of movable property under attachment or distraint, for all the above-mentioned purpose.

When the suit is filed for the relief or compensation for wrong caused to immovable property held by a defendant or any other person on the behalf of a defendant where the relief can be obtained through his personal attendance then suits may be instituted in a court within whose local jurisdiction:-

  • the property is situated, or
  • the defendant voluntarily and actually resides or carries on business or personally for gains.

Section 17:-Cases in which the immovable property is situated within the local limits of the jurisdiction of different courts.

When the suit is filed for obtaining the compensation or relief for the wrong caused to immovable property situated within the jurisdiction of two or more courts, the suit may be filed in any court within whose local jurisdiction a portion of the property is situated. But in respect for the value of subject matter of the suit, the entire claim is cognizable by such court.

Section 18– A place of an institution when the jurisdiction of courts is uncertain

When there is uncertainty with regards to the local limits of the jurisdiction of courts, and any of the courts has satisfied that there is a ground for uncertainty, record the statement and may proceed with the case to entertain and dispose of the case. The decree passed by such court will have the same effect as if the property was situated within the local limits of its jurisdiction.

In a case where the court taking the cognizance of case does not record the statement and objection is brought before Appellate or Revisional Court, the Appellate or Revisional court shall not allow the objections unless it is satisfied that at the time of institution of suit there was no reasonable ground for uncertainty as regards to jurisdiction of Court and there has been a failure of justice.

Section 19– Suits with regard to movable property when Applicable where the suit is for the wrong caused to the person or property.

Conditions

If the wrong was done within the local limits of the jurisdiction of one courtand the defendant voluntarily resides or carries on his business or works for personal gain within the local limits of the jurisdiction of another court then the plaintiff has an option to file at either court.

Lets us understand through an example.

A, residing in Delhi, beats B in  Bangalore. B may institute the suit either in Delhi or Bangalore.

A residing in Bangalore, publishes a defamatory statement of B in Delhi. B may sue A in Bangalore or Delhi.

Other suits to be instituted where defendants reside or cause of action arises (Section 20) when Applicable when there is a breach of contract or commercial transactions.

Conditions

If the breach of contract was done or cause of action arises within the local limits of the jurisdiction of one court and defendant voluntarily resides, carries on his business or works for personal gains  within the local limits of the jurisdiction of another court the plaintiff has an option to file at either court

Example

C is a tradesman in Bangalore, D carries on business in Hyderabad. D, by his agent in Bangalore, buys goods from C and requests C to deliver them to Amarchand Company. C delivers the goods in Bangalore accordingly. C may sue for the price of goods either in Bangalore where the cause of action arises or in Hyderabad where D carries on his business.

Objections to jurisdiction( Section 21)

If objection related to the place of suing:-

  • pecuniary limits
  • competence of the executing court with regards to local limits of its jurisdiction

is not brought in the Court at the first instance, before settlement or in a case where the issues are settled, then no objection will be allowed by the Revisional or Appellate Court unless there is a failure of justice.

Non- Applicability

  • Territorial jurisdiction
  • Pecuniary jurisdiction

In the case of Karan Singh vs Chaman Paswan

When the court commits an error in entertaining the suit with regard to pecuniary or territorial jurisdiction then the decision given by such court will not be void but will be considered as the illegal exercise of jurisdiction.

Bars on a suit to set aside a decree on objection as to the place of suing (Section 21A)

No suit shall be brought up challenging the validity of decree passed in a former suit between the same parties or between the parties litigating under the same title on any ground based on an objection as to a place of suing.

Institution of Suit (Sec. 26)

Pleadings: (Order 6)

What are the Pleadings?

Before understanding amendment of pleadings, there is a need to explain what is Pleadings and its Rule. Pleadings are the statements which are the backbone of every civil suit. No civil suit will come into existence if there are no Pleadings. Pleadings have been defined under Order 6 Rule 1 of CPC which states that Pleading shall be Plaint or Written Statements. Plaint is the statements filed by the Plaintiff in a Civil Court to prove his claim whereas Writtefeen statements are the statements defined in Order 8 Rule 1 of CPC which states that dndant should file written statements in 30 days from the date of issuance of the summons. Written statements are filed by the defendant for his defense. Plaint has not been defined in CPC but it can be termed as pleadings of Plaintiff from which civil suit is initiated.  Pleadings should be properly drafted and it should not contain any vague or unambiguous statements. Pleadings are those material facts which helps plaintiff to define the cause of action and the defendant to establish his defense in a civil suit.

What rules to be followed while drafting of pleadings?

Pleading should contain the facts but no law should be applied in pleadings. Only the court has the power to apply the law on the basis of fact stated in the Pleadings. In the case of Gouri Dutt Ganesh Lal Firm v. Madho Prasad,1 honorable court stated that Pleadings should be defined in four words – “Plead Facts, not laws”.

Pleadings should contain material facts. Parties should avoid using immaterial or irrelevant facts in the Pleadings. In the case of Virender Nath v. Satpal Singh2, the court stated that material facts are those facts which helps Plaintiff to define his cause of action or defendant to strong his defense.

Parties should not give the evidence in the pleadings from which facts are proved.

Pleadings should contain the material facts in the brief form. Parties should avoid using irrelevant or immaterial statements while drafting the Plaint.

Order VI Rule 17 Code of Civil Procedure :

Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

In which stage of civil suit pleading can be amended?

The Provision related to Amendment of Pleadings gives power to the civil court to allow parties to alter, amend or modify the pleadings at any stage of proceedings1.  Provision for Amendment of pleadings has been stated in Order 6 Rule 17 of the Code of civil procedure. But the court will allow amendment only if this amendment is necessary to determine the controversy between the parties. The purpose of this provision is to promote ends of justice and not to defeat the law.

The Proviso of Order 6 Rule 17 states that court will not allow application of amendment after the trial has been commenced unless court comes to the conclusion that party did not raise the relevant facts before the commencement of the trial. This proviso gives discretionary power to the court to decide on the application of pleadings after the commencement of the Trial. An institution of the suit is necessary for applying for amendment of pleadings.

This provision was deleted by the Civil Procedure (Amendment) Code, 1999. This omission was made to ensure consistency in new changes in the civil code. But later, it was restored by the Civil Procedure (Amendment) Code, 2000. This amendment has given power to the court to allow application of the pleadings with some limitation.

In the case of Gurdial Singh v. Raj Kumar Aneja, the court stated that any person who is applying for the amendment of pleadings should state that what is to be altered, amended or modified in the original pleadings.

In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors5,  the court stated that Amendment of pleadings consists of two parts :

In the first part, the word ‘may’ gives discretionary power to the court to allow or disallow application of pleadings.

In the second part, the word ‘shall’ gives obligatory direction to the civil court to allow the application of pleadings if this amendment is necessary for the purpose of determining the real questions in controversy between the parties.

Why do courts allow amendment of Pleadings?

The primary objective for the court to allow application for  Amendment of Pleadings is secure the ends of the justice and prevent injustice to other parties. Also, this amendment is necessary for the purpose of determining the real questions in controversy between the parties.  Amendments of pleadings help the parties to correct its mistakes in the pleadings. In the case of Cropper v. Smith, the court stated that the object behind amendment of pleadings is to protect the rights of the parties and not to punish them for the mistake made by them in the pleadings.

What can be amended in pleading?

  • Plaint filed by the Plaintiff
  • Written Statements filed by the Defendant 

Importance of the Doctrine of Relation back in Amendment of Pleadings

When the court allows the application of the Amendment of Pleadings then it relates back to the date of suit. But in the case of Sampath Kumar v. Ayyakannu6,  the court stated that in some special cases, the court can direct that amendment of pleadings will not relate back to the date of suit.

Amendment of Pleadings when granted:

In the case of Kishan Das  Vithoba Bachelor, the court stated that there are two necessary conditions to be satisfied before granting leave for amendment of pleadings:

  • This grant of leave should not leads to the injustice to other party.
  • This Amendment of pleadings is necessary for determining the real question of controversy between parties.

In the case of  Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarawagi And Co. Pvt. Ltd. And Anr, the honorable Supreme Court stated certain conditions when amendments of Pleadings can be allowed they are:

  • When nature of the case will change by allowing application for amendment of appeal
  • When a new cause of action arise by allowing application of an amendment
  • When Amendments of Pleadings defeats the law of limitation.

Other points on which Amendments of Pleadings is granted:

  • When the application of amendment is filed to avoid multiplicity of suits.
  • When parties in the plaint or written statements are wrongfully described.
  • When the plaintiff omits to add some properties to the plaint.

Amendment of Pleadings when refused:

  • Application of amendment of Pleadings is rejected by the court when this amendment is not necessary for determining the real question of controversy between parties.
  • Application of amendment of pleadings is rejected when it leads to the introduction of a totally new case. In the case of the Modi Spg. Mills v. Ladha Ram & sons7 Supreme Court held that “ the defendant cannot be allowed to change completely the case made in certain paragraphs of the written statement and substitute an entirely different and new case”.
  • When the Plaintiff or defendant is negligent
  • When proposed alteration or modification is unjust
  • Application for Amendments of Pleadings is refused when it violates the legal rights or cause injustice to the other party
  • Leave to amend is refused when it leads to the needless complications in the case.
  • Leave to amend is refused when there has been excessive delay by the parties in filing the suit.
  • Application of Amendment is refused when it changes the nature of the disputes
  • The court will not grant application of amendment of pleadings if it is made with mala fide intention.
  • Where several opportunities are given to parties to apply for amendment of pleadings. But they failed to make an application.

Step by Step procedure for filing an application for Amendment of Pleadings:

Step 1 – Firstly the Plaintiff or Defendant who wants to amend its pleadings can write an application for the  amendment of pleadings to the concerned civil court

Step 2 –  After drafting the application applicant needs to produce the application before the concerned civil judge.

Step 3 – He has to pay a required court fee under court fees Act, 1870.

Step 4- Applicant needs to tell the purpose of the alteration in his application.

Step 5 – Judge will read the application and if he thinks fit that this alteration or amendment is necessary for the purpose of determining the real questions in controversy between the parties Than he will grant permission for amendment for pleading.

Step 6 – After getting the order from the court, the applicant needs to file new pleadings within the prescribed time and if no time has been prescribed by the court then he needs to file it in 14 days from the date of order.

Step 7 – He also needs to give a copy of altered pleadings to the opposite party

Can the pleadings be amended if the suit is debarred by the Limitation Act

In the case of  L.J. Leach & Co. Ltd. v. Jardine Skinner & Co, the Supreme Court stated that court can decline the application of amendment of pleadings if it is debarred by the Limitation Act. But the court has discretionary power to allow this application to secure ends of justice. The limitation can be ground for rejecting the application but the court can allow if the court thinks that amendment is necessary.

In the case of South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors9,  the court stated that it is settled principle that court can disallow the application of amendment if on the date of the filing of Application it is barred by the limitation. But this not mean that court cannot order grant for Application. For securing the interest of justice, the court has discretionary power to allow application of amendment of pleading.

In the case of Pankaja & Anr v. Yellappa (D) by LRs & Ors,  the court held that there is no settled principle that which states that court can reject the application of amendment if on the date of filing the application it is barred by limitation. The court stated the discretion to allow or not to allow application depends on the factual background of the case. If facts & circumstance of the case clearly establishes that this amendment is necessary to determine the cause of action and to avoid further litigation then the court should allow this application.

In the case of Ragu Thilak D. John v. S. Rayappan,  the court stated that it is disputed fact that application of amendment will be allowed or not when it is barred by the Limitation. But in many cases, the issue of limitation is made an issue in the suit, In those cases, application of amendment is allowed for disposing of the case.

In the case of Vishwambhar v. Laxminarayan12,  the court held that application for amendment of Pleading is to the relate back to a filling of the date of application not to the date of filing of the suit.  

Why is Order 6 Rule 17 criticized?

  • Application of the Amendments delays Justice. Arun Mohan, senior lawyer-author of the book called “Justice, Courts, and delays” tells in his book that almost 80% of the application for the amendment is filed with the sole objective of delaying the proceedings.
  • One of the big challenges faced by the Indian courts is the backlog of the cases. Civil court is already burdened with lot many cases and amendment of pleadings puts more burden on the civil courts.

Order 6 Rule 17 is the most misused law.

  •  It is a hindrance to speedy disposal of the matter
  •  It has more possibilities & chances of violation of legal rights on the other side.
  •  Sometimes it is difficult to find the real question of controversy between parties
  • The controversy between the Amendment of proceedings and the Limitation is still not settled. In different cases, there are different interpretations of this rule.
  •  Many applicants with the mala fide intention are filing the application for amendment. It is not easy for the civil court to establish mala fide intention of the parties.

What happens when an applicant fails to amend in a prescribed time?

Provisionon : Order VI Rule 18 Civil Procedure

Failure to amend after order : If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.

Order VI rule 18 states that when a party had application for amendment and it is allowed by the court through an order. But the party does not amend it within the time prescribed in the order or if no time is prescribed, within the fourteen days from issuance of order then the party will be not permitted to amend.

Plaint and Written Statement (Order 7,8)

Plaint

A Plaint is a legal document that contains the content of any civil suit which shows the Plaintiff’s claim after filing suit. The plaint is the first step of the Plaintiff in the form of a legal document for the commencement of suit and it shows what a Plaintiff wants from that suit. The concept of a plaint is mentioned in the Civil Procedure Code. Through the help of plaint, the plaintiff narrates or describes the cause of action and related information which is considered as essential from the viewpoint of the suit.

In the case of plaint, the cause of action consists of two divisions, first is the legal theory (the factual situation based on which the plaintiff claims to have suffered) and second is the legal remedy that the plaintiff seeks from the court. A plaint is considered an important concept because it is the foremost and initial stage to initiate any lawsuit and helps to find a civil court of appropriate jurisdiction.

Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order VII of CPC, there are many different rules which deal with different constituents of plaint. Rules 1 to 8 deal with the particulars of the plaint. Rule 9 of CPC deals with how the plaint will be admitted and after that Rule 10 to 10-B talks about the return of the plaint and the appearance of parties. And the main Rules i.e 11 to 13 deal with the rejection of the plaint and in which circumstances the plaint can be rejected.

Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.” This section clearly shows that plaint is very much necessary for the establishment of a suit before the civil or commercial court.  

Necessary Contents of A Plaint

A plaint is a legal document that contains a lot of necessary contents in the absence of which, it cannot be considered as a plaint. The contents necessary for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC. These are mentioned below:

  • Plaint should contain the name of the commercial or civil court where a suit will be initiated.
  • Plaint should contain details of the plaintiff such as the name, address, and description.
  • Plaint should contain the name, residence, and description of the defendant.
  • When a plaintiff has some defects or problems in health or any type of disability, the Plaint should contain a statement of these effects.
  • Plaint should contain the facts due to which cause of action arises and where the cause of action arises it should also be mentioned.
  • Plaint should not only mention facts due to which cause of action arises but also those facts which help in recognizing the jurisdiction.
  • Plaint should also contain about that relief which the plaintiff seeks from the court.
  • When the plaintiff is ready to set off a portion of his claim, the Plaint should contain that amount which has been so allowed.  
  • Plaint should contain a statement of the value of the subject-matter of suit not only for the purpose of jurisdiction but also for the purpose of court-fees.
  • At last, the content that should be on plaint is the plaintiff verification on oath.

This shows that the plaint is a necessary component for the successful initiation of suits in commercial or civil courts and plays a very important role throughout the suit. Some additional particulars which were not mentioned above include the following: Plaintiff shall state the exact amount of money to be obtained from the defendant as given under Rule 2 of order VII whereas Rule 3 of order VII of CPC states that when the plaint contains subject matter of immovable property, then the property must be duly described.

Rejection of plaint

The Plaint shall be rejected in certain situations when requirements are not fulfilled. Some of the situations in which the plaint is rejected are as follows:

  • The plaint is rejected in a case where the cause of action is not disclosed. If the cause of action is not disclosed then it is not possible to prove the damage caused to the plaintiff. To seek relief against the defendant, the facts need to be mentioned clearly. In the case of Snp Shipping Service Pvt. Ltd. v. World Tanker Carrier Corporation, the plaint was rejected and the suit dismissed under Order 7, Rule 1(a) of the C.P.C.,1908.
  • The plaint is also rejected in a case where the plaintiff relief is undervalued and the plaintiff is requested by the court to correct the valuation within the given time frame but the plaintiff fails to do so.
  • The plaint is rejected in a case where all the documents are not properly stamped and the plaintiff on being required by the court to supply the required stamp paper within a time to be fixed by court fails to do so.
  • The plaint is mostly rejected due to the statement mentioned in the plaint secured by any law or statute that doesn’t give any right to the plaintiff to file the suit.
  • When a duplicate copy of the plaint is not submitted whereas it is mentioned that it is mandatory to submit the duplicate copy then in that condition plaint is liable to be dismissed.
  • The plaint is rejected when the plaintiff fails to comply with the provisions of Rule 9 of Order VII of C.P.C.

Provisions on the Rejection of Plaint under C.P.C.

As we have already said in what circumstances the plaint can be rejected and now what are the provisions that are related to the rejection of the plaint under Code of Civil Procedure. Some of the provisions regarding the rejection of a plaint are mentioned below:

  • Order VII Rule 12 of C.P.C states the procedure on rejecting the plaint so that it can be used as a precedent for future cases.
  • Order VII Rule 13 of C.P.C states that rejection of the plaint does not stop the presentation or filling of the fresh plaint.

Two modes which are mentioned to show the manner in which the plaint can be rejected:

  • The defendant has the right to file an application in the form of an interlocutory application at any stage of proceedings for the rejection of the plaint.
  • Suo moto (on its own): The meaning of the suo moto itself defines the way of rejection of the plaint. Suo moto rejection is under Order 7 Rule 11 which states Rejection of the plaint. A court can itself try a suit under Order 7 Rule 11 if the plaint fulfills the conditions discussed in the first point.

Landmark Cases on Rejection of Plaint

Many cases came in front of court related to the rejection of plaint but some of the cases given below are now considered as a landmark for other cases on the rejection of plaint:

Kalepur Pala Subrahmanyam v Tiguti Venkata: In this case, it was said that a plaint cannot be rejected in part and retained part under this rule. It must be rejected as a whole and not with the rejection of one part and acceptance of another. This judgment is considered as a landmark judgment on the rejection of the plaint.  

Sopan Sukhdeo Sable v. Asstt. Charity Commr.: In this case, it was held that where the suit was at the stage of recording of evidence and an application under Order 7 Rule 11 of the code was filed to delay the proceedings of the suit, the application under Order 7 rule 11 of the code was rejected.

Bibhas Mohan Mukherjee v. Hari Charan Banerjee: In this case, it was held that an Order rejecting a plaint is a decree and hence it is applicable and binding in other cases which involves the rejection of the plaint.

  1. ROJA vs. U.S. RAYU: Court, in this case, held that any application for the rejection of the plaint under Order 7 Rule 11 of the code of civil procedure can be filed at any stage and the court has to dispose of the same before proceeding with the trial.  

Kuldeep Singh Pathania vs. Bikram Singh Jarya: In this, the court held that for an application under Order VII Rule 11(a) of Code of Civil Procedure, only the pleadings of the plaintiff can be looked into and neither the written statement nor averments can be considered for inquiry.

Appearance and Non-Appearance of Parties (Order 9)

The appearance of parties to the suit

As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit are required to attend the court either in person or by their pleaders on the day which has been fixed in the summons. If the plaintiff or a defendant, when ordered to appear in person, do not appear before the court and neither show the sufficient cause for his non-appearance, the court is empowered under Rule 12 of Order IX as follows.

  • If the plaintiff does not appear, dismiss the suit.
  • If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when the suit is called for hearing, then the court is empowered to dismiss the suit under Rule 3 of Order IX. The dismissal of the suit under this rule does not put a bar on filing a fresh suit on the same cause of action as per Rule 4.

The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that there was sufficient behind his non-appearance. If the court is satisfied with the cause of non-appearance then it may set aside the order of dismissal and schedule a day for the hearing of the suit.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an ex-parte order can be passed against the defendant. But, the plaintiff has to prove that the summon was served to the defendant.

If service of the summons is proved then only the court can proceed for an ex-parte against the defendant and the court may pass a decree in favour of the plaintiff. This provision applies only for the first hearing and not for the subsequent hearings of the matter and the same has been held in the case of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure the end of justice even in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it has been held by the Supreme Court that -It is the duty of the court to ensure that statements in the plaint stand proven and the prayers asked before the court are worthy of being granted. This provision of passing ex parte order cannot be passed when there are more than one defendants in the case and any of them appears.

Appearance of defendant

The provisions laid down to deal with the appearance of only the defendant has been laid down from rule 7-11 of Order IX. When the defendant appears but there is non-appearance of the plaintiff, then there can be two situations:

  • The defendant does not admit the claim of the plaintiff, either wholly or any part of it.
  • The defendant admits the plaintiff claim.

If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal of the suit. But, when the defendant admits completely or any part of the claim made by the plaintiff then the court is empowered to pass a decree against the defendant on the ground of such admission and for rest of the claim, the suit will be dismissed.

Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not be adopted unless the court gets satisfied that in the interest of justice such dismissal is required, as cited by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.

Does the same provision apply to the non-appearance of the plaintiff due to death?

When the plaintiff does not appear because of death, the court has no power to dismiss the suit. Even if such order is passed it will amount to a nullity as held in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can make an application to set aside the order of dismissal. If the court is satisfied with the reason of non-appearance as a sufficient cause then the court can set aside the order dismissing the suit and fix a day for the proceeding of the suit.

Sufficient cause

For considering the sufficient cause of non-appearance of the plaintiff the main point to be considered is whether the plaintiff really tried to appear on the day which was fixed for hearing or not. When sufficient cause is shown by the plaintiff for his non-appearance, then it is mandatory for the court to reopen the suit. In absence of sufficient cause, it is upon the discretion of the court to set aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar. Sufficient cause depends upon the facts and circumstances of each and every case.

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the party arrives late and find its suit dismissed due to his non-appearance then he is entitled to have his suit or application restored with the payment of costs.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served to the defendant. One of the fundamental procedural law is that a party must be given a fair opportunity to represent his case. And, for this, a notice of the legal proceedings initiated against him is obligatory. Therefore, service summons to the defendant is mandatory and it is a conditional precedent.

When there is no service of summons or it does not give him sufficient time for effective presentation of the case then a decree cannot be passed against him as held in the case of Begum Para v. Luiza Matilda Fernandes.

Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to the defendant then the suit may be dismissed. But, no dismissal can be made even in the presence of such failure if the defendant appears on the day of hearing either in person or through his pleader. However, the plaintiff is entitled to file a fresh suit when the suit is dismissed under this rule. and, if the court is satisfied that there is a reasonable reason behind such failure to pay costs then the court may set aside the order of dismissal.

When the summon is returned unserved and the plaintiff does not apply for fresh summons for 7 days from which the summon is returned unserved by the defendant or any of the defendants, then the court can dismiss the suit against the defendant or such defendants

When the summon was not duly served to the defendant is not proved then the court can direct to issue a fresh summon to the defendant for service. When the service of the summons is proved before the court but the time prescribed in the summon is not sufficient for him to answer on the day which has been fixed, then the hearing can be postponed by the court to a future date and notice will be given to the defendant.

Ex parte appearance

Ex-parte Decree

When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte decree can be passed. The ex-parte order is passed when the plaintiff appears before the court on the day of the hearing but the defendant does not even after the summon has been duly served. The court can hear the suit ex-parte and give ex-parte decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless it is annulled on a legal and valid ground. An ex-parte can be enforced like a bi-parte decree and it has all the forces as a valid decree as held in the case of Panduranga Ramchandra v. Shantibai Ramchandra.

Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the following remedies are available to him.

  • He can apply to the court under rule 13 of Order IX for setting aside the ex-parte decree passed by the court.
  • He can appeal against that decree under section 96(2) of the Code or, prefer revision under section 115 of the code when no appeal lies.
  • He can apply for a review under Order 47 Rule 1.
  • A suit on the ground of fraud can be filed.

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the defendant. An application to set aside decree can be made to the court passing that decree. There are certain rules to be followed for setting aside an ex-parte decree and if the defendant satisfies the court with sufficient reason, then only the ex-parte decree which has been passed can be set aside.

The limitation period for making an application for setting aside an ex-parte decree is of 30 days.

The grounds on which an ex-parte decree can be set aside are:

When the summons has not been duly served. Due to any “sufficient cause”, he could not appear on the day of the hearing.

Sufficient Cause

The term sufficient cause has not been defined anywhere but as held in the case of UCO Bank v. Iyengar Consultancy, it is a question which is determined upon the facts and circumstances of the cases. The test to be applied for this is whether or not the party actually and honestly intended to be present at the hearing and tried his best to do so. There are several instances which have been considered as sufficient cause such as late arrival of the train, sickness of the council, the strike of advocates, death of a relative of party etc.

The burden of proof that there was a sufficient cause of non-appearance is upon the defendant.

Commissions (Sec. 75 to 78 Order 26)

What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act on behalf of the Court and to do everything that the Court requires to deliver full and complete justice. Such person who carries out the commission is known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a commissioner is appointed who conducts the local investigation. Similarly, to record the evidence of a witness who cannot come to the Court for evidence, the Court can issue a commission for recording of such evidence.

Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the commissioner. Section 75, provides that “the Court” can issue commission provided the limitations and restrictions applicable. Therefore, the Court who has to decide the suit can appoint the commissioner. Commissioner is appointed to carry out the functions for which the commission is issued. Court has the discretionary power to appoint the commissioner and such power can be exercised on the application of any of the parties or the Court can issue the commission suo moto.

We will understand the procedure followed by the Courts to appoint the commissioner later in this article.

Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the High Court in which advocates are selected who are competent to carry out the commission issued by the Court.

The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it. Such a person should have the requisite skills to carry out the commission.

It will be a complete waste of time and resources of the Court and the parties if a person who cannot read and understand the accounts and documents is appointed as commissioner to adjust accounts. Similarly, a person who does not have the qualifications to conduct scientific investigation should not be appointed as a commissioner for such task.

The District judge supervises the subordinate Courts who have to take special care while appointing a commissioner(1). The same person should not be appointed by the Court in all commissions and a person who hangs about the Court should not be appointed.  

What is the procedure for appointment of commissioner?

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

For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides procedure for appointment of Commissioner. The following procedure is followed by the Delhi High Court(2):

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

When can a commissioner be appointed by the Court?

A commissioner can be appointed by the Court when a commission is issued by the Court. According to Section 75 of CPC, the Court has the power to issue a commission to carry out the following functions:

To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and must be recorded in open Court. But in extraordinary circumstances, the appearance of witness is dispensed and the witness is allowed to depose evidence without appearing in Court.

Appearance is exempted if:

  • A witness is bedridden or is unable to attend the Court due to sickness or infirmity, in such circumstances the Court can exempt the appearance of witness and allow the witness to depose evidence to a commissioner appointed for the same.  Such a witness will have to submit a certificate signed by a registered medical practitioner as evidence of sickness or infirmity. (Order XXVI Rule 1, C.P.C.) In such situations the Court will exercise its powers provided under order 18 rule 4 and appoint a commissioner for examination on interrogatories(3).
  • A witness apprehends danger to his life and informs the Court about such danger and if the Court thinks that recording evidence of the witness is necessary, the Court may issue commission to record evidence of such witness. Where a party accused of fraud seeks himself to be examined with commission, the Court must not issue commission and avoid person of such demeanor to abuse the procedure.
  • The witness is a pardanashin lady whose attendance is exempted under Section 132 of the code.
  • The witness is a Civil or Military Officer of the Government, cannot attend without detriment to the Public Service. (Order XXVI Rule 4)
  • If the Court thinks that it is in the interest of justice or expeditious disposal of the case or for any other reason, the Court can issue a commission notwithstanding any of the rules provided in the order. (order 26 rule 4A)
  • A person who cannot be ordered to attend the Court in person under Order 16 rule 19 can be examined by the Court by issuing a commission. (order 26 rule 4 proviso)
  • A commission can be issued for examination of a person detained in prison. (order 16A rule 7)

The Court will issue an order of commission for examination of a witness on following grounds  if such person: (order 26 rule 4)

  • Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]
  • About to leave from the jurisdiction of the Court. [order 26 rule 3(b)]
  • A government servant and cannot attend without affecting the public service [order 26 rule 4(c)].
  • Resides outside India and the Court decides that his evidence is necessary.
  • The commission will be issued to any other Court within whose local limits such person is residing and if the person resides within the local limits of the Court issuing it, a commissioner can be appointed to carry out such commission.

The provisions of the Court relating to summoning, attendance examination of witnesses, penalties imposed on the witness will apply on the person who has to give evidence or produce documents before the commissioner. The commissioner who is executing the order of the Court, within whose local limit such person resides or by the Court beyond whose jurisdiction such person resides, will be deemed to be a civil Court.

If the commissioner is not a judge of the civil Court, the commissioner cannot impose penalties but can make an application to the Court which has issued commission to impose penalties on the person. (order 26 rule 17)

To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of the opinion that a local investigation is necessary:

  • For proper clarity of any matter in dispute, or
  • In ascertaining the market value of any property, or
  • To know the amount of mens rea or annual net profits.

While appointing a commissioner for, the Court has to examine (4).

  • The pleadings of both the parties,
  • Relief claimed,
  • The real controversy between the parties.

It is important to note that the object of a commission is not to collect evidence which can be brought to the Court by the parties but to acquire evidence from a fixed spot. It is also used to enable the Court to have more clarity regarding the facts of the case.

Commissioner should not be appointed to provide pre-trial decree against the defendant, that is, the Court should not appoint a commissioner to provide the relief claimed, directly or indirectly, by the plaintiff before the final decree is passed. It is important because such commission will prejudice the rights of the defendant to a fair trial.   

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved in the suit, the Court may issue a commission to make the examination of such accounts and may appoint a commissioner. (rule 11) The Court takes special care while making such an appointment. The Court appoints only such a person who is competent to examine such records. The reports submitted by the commissioner is considered evidence by the Court. (rule 12)

To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the Court has passed a preliminary decree for partition of the suit property, in such a situation, the Court can appoint a commissioner to carry out the decree. (rule 13) The commissioner has to divide the property in shares and distribute it among the parties according to the suit decree. Commissioner has to submit a report after such partition is completed. (rule 14)

To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can appoint a commissioner who will then be responsible for such investigation. For example, to identify the substance used as a raw material in the subject matter, the Court may issue commission to hold scientific investigation. (rule 10-A)

After conducting such investigation the commissioner has to submit the report within the time prescribed by the Court.

To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be preserved by the commissioner and if it is not sold, its value cannot be recovered. Therefore, the Court appoints a commissioner who is given the responsibility to sell the property and submit a report along with the proceeds received from the sale of such property.

To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do, but are not of judicial nature like accounting, calculation, etc. Such work takes a lot of valuable time of the Court which can be used in other important judicial functions.

Therefore, the Court appoints a commissioner to do such works on behalf of the Court. It is important to note that commissioners cannot do judicial functions. (5)

Procedure for carrying out the commission:

  • The commissioner will conduct the local investigation, examination of witnesses, adjust accounts and other functions as ordered in the commission.
  • After completion of the function, the commissioner will reduce the findings in writing and will make a report.
  • The commissioner will submit the report signed by him along with the evidence recorded in the Court.
  • The report of commissioner will form a part of the record.
  • While examining the report, the Court or the concerned parties, after prior permission, can examine the commissioner personally in open Court.
  • If the Court is dissatisfied with the proceedings of the commissioner the Court can order a further inquiry on the commission or can issue a fresh commission and appoint a new commissioner.   

To summarize, the commission can be issued in the following circumstances:

  1. To make a local investigation.
  2. To adjust accounts.
  3. To make partition.
  4. To hold investigation.
  5. To conduct sales.
  6. To perform ministerial work.

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:

  • Commissioner has the authority to examine the parties and the witnesses and any other person who the commissioner thinks can give evidence in the matter referred to him.
  • Commissioner can direct the parties to produce any documents which is required to be examined.
  • Commissioner also has the power to enter and search any land or building with the permission of the Court.
  • If the party fails to appear before the commissioner after the order of the Court, the commissioner can proceed ex parte.

Whether the commissioner will be entitled to a Remuneration?

There is no provision in the CPC which expressly provides for remuneration to the commissioner but Rule 15 of order 26 provide for the expenses which might be incurred by the commissioner. While issuing commission, the Court directs the applicant to deposit a sum of amount which can be used by the commissioner to account for the expenses which might be incurred by him while carrying out the commission. The Court has the discretionary power to make directions regarding the remuneration.  

What are the limitations on the commissioner?

Commissioner has to assist the Court in carrying out the judicial functions but he cannot do the judicial functions on behalf of the Court. For example, a commissioner cannot value the suit property because it is a judicial function and only the Court has the power to do so. A commissioner can assist the Court by producing the documents such as plans of the suit property by which the Court can ascertain the value.  

It is not the objective of issuing a commission to procure evidence for the parties. Therefore, if a party has the apprehension that the opposite party will tamper with a document which is relevant to the case, the Court should not appoint a commissioner to seize such documents.

What is the evidentiary value of the report submitted by the commissioner?

According to order 26 rule 10 (2) of the CPC, the report and the evidence submitted by commissioners forms a part of the record but if the evidence is submitted without the report of the commissioner, such evidence does not form part of the record. (6)

The report forms an important part of the case and can only be challenged on sufficient grounds.The Court has the final say on how much reliance should be placed on the report submitted by the Court.

Receiver (Order 40)

Who is a receiver under the civil procedure code?

Under order 40 of CPC, The Receiver is an independent and impartial person who is appointed by the court to administer/manage, that is, to protect and preserve a disputed property involved in a suit.

For example, in a dispute between A and B for an immovable property, if the court thinks that it is in the best interest of both the parties that possession should be taken from B and given to an independent person, the court may appoint a receiver who can manage the property till the time the suit is being decided. Such a receiver appointed by the court would be responsible for the maintenance of the property. He can collect the income accruing like rent or any other profits and utilize it to maintain the property. After deducting the expenses incurred in maintenance from the income received from the property, the receiver will have to submit the remaining income, if any, in the court.

He is not representative of either of the parties in the action, is uniformly regarded as an officer of the court working in the interest of neither plaintiff nor defendant but for the common benefit of all the parties.

What is the purpose of the appointment of a receiver?

When a party in possession of the disputed property exhausts the property or causes irreparable damages to it, the whole object of the suit gets defeated because the subject matter ceases to exist or its value gets affected. Therefore, when the court is of the opinion that the property in dispute must not go to either of the parties, pendente lite, the court appoints a receiver who is entrusted with the protection and preservation of such property. It is a form of interim protection which the court provides to the parties who makes the application till the time the court adjudicates the matter.

What is the role of a receiver?

The Receiver is regarded as an officer of the court and is the extended arm and hand of the court. He is entrusted with the responsibility to receive disputed property or money given by the court and manage such property or money till the time a decree is passed or the parties have compromised or any other period as the court deems fit. The property or fund entrusted to the receiver is considered to be custodia legis i.e. in the custody of the law. The Receiver has no power other than those entrusted to him by the court while appointing him.

Who can appoint a receiver?

According to the civil procedure code, the court before which the proceedings are pending can appoint a receiver if it appears just and convenient to the court to appoint such receiver [section 51(d)]. It is within the discretionary power of the court to appoint the receiver. For example, in a suit, the trial court can appoint a receiver. Whereas, in appeal, the appellate court can appoint a receiver.  

However, the discretion is not absolute, arbitrary or unregulated. The expression “just and convenient” does not mean the appointment is based on the whims and wishes of the judge on any grounds which stand against equity.

How does the court decide whether to appoint a receiver or not?

Court has to keep the following principles in mind before appointing a receiver:

  • Appointment of a receiver is a discretionary power.
  • It is a protective relief to the plaintiff. The object is to protect and preserve the disputed property till the time the suit is pending in the court.
  • A receiver should not be appointed unless the plaintiff shows prima facie that he has a strong case against the defendant and it is more than likely that he will succeed in the suit.
  • Appointment of a receiver is one of the hardest remedies as it deprives the defendant of his right to possession before the final decree. Therefore, the court should not resort to it merely on the ground that it will do no harm.
  • There should be strong apprehension that there is a danger to the property or the plaintiff will be in worse of a situation if the appointment of a receiver is delayed.
  • The court should appoint a receiver only when there is a possibility of wrong or injury. Also, if it is shown that the subject matter is not in the possession of any of the parties and it is in the common interest of both the parties to appoint a receiver for the protection and preservation of the property.
  • The court should look at the conduct of the party who makes the application for appointment of a receiver. The party should come to the court with clean hands and their conduct should be such that they are not disentitled to this equitable relief.

The above principles were introduced by the Madras Court in the case of T. Krishnaswamy Chetty vs C. Thangavelu Chetty And Ors., AIR 1955 Mad 430. These principles are now well established in the Indian jurisprudence.

Who can apply for the appointment of the receiver?

Generally, a plaintiff files the application for appointment of a receiver but defendants can also file such application. A third party is not allowed to file the application but if he is interested in the protection and preservation of the property, he can also make an application after taking permission from the court.

Who can be appointed as a receiver?

A person who is independent, impartial and totally disinterested should be appointed as a receiver. Such a person should not have any stake in the disputed property. Generally, parties to the suit are not appointed as receiver by the court. But in extraordinary circumstances, a party to suit can be appointed as receiver.

When can a receiver be appointed?

The court can appoint a receiver whenever the court is of the opinion that either party should not hold the property in dispute. The court can appoint a receiver before or after a decree and can remove any person from the possession or custody of the property and commit the same property in the custody or management of the receiver.

Under the code itself, the receiver can be appointed to prevent the ends of justice being defeated. [section 94(d)]. Similarly, for the execution of a decree, the court has the power to appoint a receiver. [section 51(d)].

There are provisions in special acts which provides for the appointment of a receiver by the court. For example, section 84 of the Companies Act, 2013 provides for the appointment of a receiver.  Similarly, section 69A of the Transfer of Property Act, 1882 also provides for the appointment.

What is the process of appointment of a receiver?

The process of appointment of a receiver is provided by the courts in their respective court rules. The high court has the power to make rules for the superintendence and control of the subordinate courts.

For instance,

In chapter XIX of the Delhi High Court (Original Side) rules, 1967, the following process is provided:

  • Application for appointment shall be made in writing and shall be supported by affidavit.
  • Receiver other than the official receiver has to give security.
  • The security is to be given to the satisfaction of the registrar.
  • He has to provide personal bonds with the number of surety required by the registrar. The personal bond will be double the amount of annual rental value of the property or the total value of the property which the receiver is going to administer.
  • Within a week of appointment, the receiver will have to submit a report providing the details regarding the property such as inventory of property or books of account etc.
  • The registrar will give directions on where to invest the money received by the receiver from the property. Generally, such money is submitted in scheduled banks or government bonds.

What are the powers of the receiver?

Under order 40 rule 1(d) powers of the receiver are provided as following:

  • Collection of rents and profits arising out of the property.
  • Application and disposal of such rents and profits.
  • Execution of documents as the owner himself.
  • To institute and defend the suit.
  • Such powers as the court may deem fit.

Also, there are indirect powers which a receiver enjoys being the hand of the court. For example, If a person obstructs or interferes with the receiver’s right to possession, it will amount to obstruction in a court proceeding and such a person can be made liable for contempt of court. Similarly, property in the hands of the receiver cannot be attached without the leave of the court.  

The court has the discretionary power to not confer all the rights on the receiver. Even if the court has given all the powers to him, he should take the advice of the court in all important decisions related to the property to protect himself.

Without the permission of the court, the receiver cannot:

  • Grant lease on the property.
  • Bring suits except for suit for rent. A suit will be dismissed if not permitted by the court.

What are the duties of the receiver?

Under order 40 rule (3), duties of a receiver are provided as follows:

  • Furnish security to account for what he will receive from the property as income.
  • Submit accounts (half yearly) for such period or form as directed by the court. The account basically includes the income received and expenses incurred for the protection and preservation of the property.
  • Pay the amount due to the court.
  • Take responsibility for any reduction in the value of the property because of the receiver’s willful negligence.
  • Discharge the duties personally and should not delegate or assign any of the rights entrusted to him by the court.

The receiver has to fulfil all the duties and responsibilities entrusted to him by the court. Otherwise, the court can take action against him and make him personally liable for any loss which might occur due to his negligence or wilful failure to protect and preserve the property. 

What are the liabilities of a receiver?

According to Order 40 rule (4), When a receiver fails:

  • To submit the reports as specified by the court or,  
  • To pay the amount due from him as directed by the court or,
  • Causes loss to the property due to gross negligence.
  • Any other duty which court directed him to do,

The court may order the attachment of property of the receiver to recover the loss caused due to his willful default or negligence.

The court, after recovering all the losses from the proceeds received after selling receiver’s property, will pay the balance (if any) to the receiver.

The receiver is bound in keeping down the expenses and taking care of the property in his possession as a prudent man would observe in connection with his own property under similar circumstances.

Will a receiver be entitled to remuneration?  

Receivers are entitled to remuneration as fixed by the court for the services rendered by them. Also, a receiver has to be provided for the loss or expenses incurred by him for maintaining the property.

Under order 40 rule (2), the court can fix the remuneration to be paid to the receiver for the services provided by him. The court can pass a general or specific order regarding the same.  

For example, The Delhi high court has provided in Delhi High Court (original side) rules,1967, the  for remuneration of the receiver as follows:

Rents recovered, outstanding recovered, the value realised on the sale of movable and immovable properties calculated on anyone estate:

  • On First Rs. 10,000 : 5 %
  • Above Rs. 10,000 up to Rs. 20,000 : 3 %
  • Above Rs. 20,000 up to Rs. 50,000 : 2 %
  • Above Rs. 50,000 up to Rs. 1,00,000 : 1 %
  • Above Rs. 1,00,000 : ½ %

Similarly, for taking custody of money, 1 %, for taking custody of Government securities of stocks, shares, 1 % of the estimated value.

If no remuneration is specified for any work, such remuneration can be granted, as the court may think reasonable, on the application of the receiver.

Can a collector be appointed as a receiver?

Yes, according to (Order 40 rule 5), a collector can be appointed as a receiver if the revenue generated from the property is received by the government, the court can appoint a collector as a receiver with his consent if the court thinks that management of such property by collector will promote the interests of those who are concerned.

Temporary Injunctions (Order 39)

What is a Temporary injunction?

Under the Specific Relief Act, 1963, Section 37 deals with a temporary injunction. Temporary injunctions continue for a specified period of time or until the further order of the court. They may be allowed at any stage in a suit and are managed by the Code of Civil Procedure (1908).

The essential purpose for granting this injunction is to secure the interests of an individual or the property of the suit until the final judgment is passed. The factors looked into while providing such an injunction are:

  1. If a party has a case of prima facie?
  2. If the balance of convenience is in favor of the complainant?

III. Whether the plaintiff would suffer irreparable damages before the judgment is passed?

The time period of such an injunction is dependent on the discretion of the court. This kind of injunction was also provided as under the case Union of India v. Bhuneshwar Prasad.

Some examples of cases stated in the CPC where temporary injunction can be granted are:

  • Where any property in dispute in a suit, which is probable of getting wasted, destroyed or estranged by any party to the suit, or illegally sold in execution of a decree; or
  • Where the defendant threatens to remove or dispose of his property in order to defraud his creditors; or
  • Where the defendant threatens to deprive the plaintiff of his property or threatens to cause injury to the plaintiff in connection with the property in dispute in the suit; or
  • In any case to prevent the defendant from committing a breach of a contract or any other injury;
  • Where pursuant to sections 38 and 41 of the Specific Relief Act, no perpetual injunction or mandatory injunction could be granted;
  • Where to stay, the operation of an order for the transfer, suspension, reduction of rank, obligatory retirement, dismissal, removal or otherwise termination of service of any person appointed to public service and post in connection with State affairs, including any employee of any company or company-owned or controlled by the Government of the State;
  • Where to stay any disciplinary proceedings, pending or intended or having the effect of any adverse entry against any person appointed to the public service and to post in connection with the State’s affairs, including any employee of the company owned or controlled by the State’s government; or
  • To restrict any election;
  • Where to restrain any auction intended to be made or restrain the effect of any Government auction; or stay the proceedings for the recovery of any dues recoverable as revenue on land unless adequate security is provided, and any injunction order granted in breach of these provisions shall be void.

In all cases, except where the object of granting the injunction appears to be defeated by the delay even before the injunction is granted, the Court shall issue a direct notice of the request for the same to be given to the other party:

Provided that, where it is proposed to grant an injunction without notice to the other party, the Court records the reasons for its view that the purpose of granting the injunction would be defeated by delay and requires the applicant to:

(a) deliver to or send to the other party by registered post, immediately after the order of granting the injunction,

(i) a copy of the request for the injunction together with a copy of the affidavit filed in support of the request;

(ii) a copy of the complaint; and

(iii) a copy of the documents on which the applicant relies;

(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.

However, the court must dispose of such suits within a period of thirty days from the date of granting an injunction and in instances where it is not able to do so, it must specify the reasons for its inability.

Order for injunction may be discharged, varied or set aside– The CPC also states that, at the request of any party who is dissatisfied with the order, any order for injunction may be discharged or varied or set aside by the Court; subject to the knowledge that if a party made a false or misleading statement in a request for a temporary injunction or in any affidavit support, for such a request.

Furthermore, where an injunction has been issued after giving a party the opportunity to be heard, the order shall not be discharged, varied or set aside on the request of that party unless such discharge, variation or set-aside is necessitated by a change of circumstances or unless the Court is satisfied that the order has caused that party difficulty and hardship.

Injunction to a binding corporation on its officer– An injunction to a corporation is binding not only on the corporation itself but also on all members and officers of the corporation whose personal actions it seeks to curtail.

The interlocutory orders passed with regard to injunctions as stated in the CPC are as follows:

Power to order interim sale– Upon application by any party to a lawsuit, the Court may order the sale by any person named in that order, and on such terms as it considers fit, of any movable property that is the subject of such a lawsuit or that is attached before a judgment in such a lawsuit, which is subject to rapid and natural decline or which it may, for any other just and sufficient reason may be desirable to be sold off.

Detention, preservation, inspection, etc. of the subject-matter of the lawsuit:

(1) the Court may, at the request of any party to the proceedings and under such conditions as it considers fit:

(a) make an order for the detention, preservation or inspection of any property that is the subject of the proceedings or as to which any question may arise therein;

(b) for all or any of the aforementioned purposes authorize any such person for any such purpose;

(c) authorize samples to be taken or any observations to be made or experiments to be tested for all or any of the aforementioned purposes which may seem necessary or useful for the purpose of obtaining full information or evidence.

(2) The provisions governing the execution of the proceedings shall, mutatis mutandis (making necessary alterations while not affecting the main point at issue), apply to a person authorized to enter under this rule.

Application for such orders to be made after notice:

(1) The plaintiff may request an order under Rule 6 at any time after the suit has been instituted.

(2) An application by the defendant for a similar order may be made at any time after its appearance.

(3) Before making an order pursuant to Rule 6 or Rule 7 on an application for that purpose, the Court shall, except where it appears that the purpose of making such an order would be defeated by a delay, issue a direct notice to the other party.

When a party may be put in immediate possession of land which is the subject-matter of a suit: Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a lawsuit, if the party in possession of such land or tenure fails to pay the Government revenue, or the rent due of the tenure to the proprietor, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the lawsuit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be placed in immediate possession of the land or tenure; and the Court in its decree, may award to the defaulting party the amount so paid, with interest thereon at the rate that the Court considers fit, or may charge the amount so paid, with interest thereon at the rate ordered by the Court, in any adjustment of the accounts may be directed by the decree passed in the suit.

Deposit of money, etc. in Court: Where the object of a lawsuit is money or anything else capable of delivery and any party thereof admits that it holds such money or anything else as a trustee for another party or that it belongs to or is due to another party, the Court may order the same to be deposited in court or delivered to that last-named party, with or without security, subject to the provisions of the judgment.

Summary Procedure (Order 37)

Summary suit or summary procedure is given in order XXXVII of the Code of Civil Procedure, 1908. Summary procedure is a legal procedure used for enforcing a right that takes effect faster and more efficiently than ordinary methods. [1] Its object is to summarise the procedure of suits in case the defendant is not having any defence.

A summary suit can be instituted in High Courts, City Civil Courts, Courts of Small Causes and any other court notified by the High Court. High Courts can restrict, enlarge or vary the categories of suits to be brought under this order. [2]

Classes of suits where summary procedure is applied

Summary suits can be instituted in case of certain specified documents such as a bill of exchange, hundies, and promissory notes. Summary procedure is applicable to recover a debt or liquidated demand in money arising on a written contract, an enactment or on a guarantee.[3]

What is a bill of exchange?

A bill of exchange is a written unconditional order by one party (the drawer) to another (the drawee) to pay a certain sum either immediately or on a fixed date for payment of goods and/or services received. [4] If the sum is to be paid immediately it is called a sight bill. Term bill is the bill of exchange where the sum is to be paid on a fixed date.

Hundies

A Hundie is an unconditional order in writing made by a person directing another to pay a certain sum of money to a person named in the order. It is a financial instrument evolved on the Indian sub-continent and used for trade and credit purposes.[5]

Promissory notes

A promissory note contains an unconditional promise to pay a certain sum to the order of a specifically named person or to bearer—that is, to any individual presenting the note. A promissory note can be either payable on demand or at a specific time. [6]

Liquidated demand in money

Liquidated demand is a demand for a fixed sum e.g. a debt of Rs. 50. It is distinguished from a claim of unliquidated damages, which is a subject of the discretionary assessment by the court. [7]

Institution of summary suits

In order to institute a suit under summary procedure, the nature of suit must be among the following classes:-

Suits upon bill of exchange, hundies and promissory notes

Suits for recovering a debt or liquidated demand in money, with or without interest, arising:-

  • On a written contract, or
  • On an enactment (the recoverable sum should be fixed in money or it should be in the nature of a debt other than a penalty), Or
  • On a guarantee (here the claim should be in respect of a debt or liquidated demand only)

A summary suit is instituted by presenting a plaint in an appropriate civil court.

Contents of plaint for summary procedure

Apart from facts about the cause of action, the plaint must contain a specific affirmation that the suit is filed under this order. It should also contain that no such relief has been claimed which does not fall under the ambit of rule XXXVII of the CPC. In the title of the suit, following inscription must be there under the number of the suit:-

“(Under Order XXXVII of the Code of Civil Procedure, 1908)”  [8]

Procedures after institution of Summary suit

Under summary procedures, the defendant has to get the leave to defend from the court. A burden is placed upon the defendant to disclose the facts sufficient to entitle him to defend in the application for leave to defend.

Detailed procedures

  • After institution of a summary suit, the defendant is required to be served with a copy of the plaint and summons in the prescribed form.  
  • Within 10 days of service of summons, the defendant has to enter an appearance.
  • If the defendant enters an appearance, the plaintiff shall serve on the defendant a summons for judgment.
  • Within 10 days of service of such summons, the defendant has to apply for leave to defend the suit.
  • Leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just.
  • If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to the judgment forthwith.
  • If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith.
  • Sub-rule (7) of Order 37 provides that save as provided by that order the procedure in summary suits shall be the same as the procedure in suits instituted in an ordinary manner. [9]

Can a summary suit be tried after the institution of an ordinary suit on the same cause of action?

According to section 10 of the CPC, a court cannot proceed with the trial of a suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. It is called the principle of res sub-judice.The provision contained in the section is mandatory and no discretion is left with the court.[10]

However, the word trial, in this case, has not been used in its widest sense. The concept of res sub-judice is not applicable to subsequently instituted summary suits.

The Court or the Judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment. Judgment can also be passed in favor of the plaintiff if:-

(a) The defendant has not applied for leave to defend or if such application has been made and refused, or,

(b) The defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted. [11]

When a leave to defend is granted

The following principles are applicable in the matter of grant or refusal of leave to defend in summary suits:

(a) If the defendant satisfies the court that he has a substantial defence, the defendant is entitled to an unconditional leave of appeal.

(b) If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the defendant is ordinarily entitled to unconditional leave to defend.

(c) Even if the defendant raises triable issues, if a doubt is left with trial judge about the defendant’s good faith, conditional leave to defend is granted.

(d) If the defendant raises a defence which is plausible but improbable, the trial judge may grant conditional leave to defend with conditions as to time or mode of trial, as well as payment into court, or furnishing security.

(e) If the defendant has no substantial defence and raises no genuine triable issue, then no leave to defend is granted.

(f) Where part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.[12]

Decree in summary suits

The plaintiff is entitled to a decree of a sum not exceeding the sum mentioned in plaint, together with interest and cost in following conditions:-

  • If the defendant does not enter an appearance (ex parte decree)
  • If the defendant has not applied for leave to defend
  • If the defendant has applied for leave to defend but it is refused
  • If the leave to defend is granted then the suit proceeds as an ordinary suit and decree is granted as per the CPC.[13]

Setting aside decree in summary suits

In the CPC, rule 13 of order IX deals with setting aside the ex parte decree. The defendant has to satisfy the court that the summons was not duly served or he was prevented by any sufficient cause from appearing in the hearing.

Rule 7 of Order 37 says that except as provided in the order, the procedure in suits under Order 37 shall be the same as the procedure in suits instituted in an ordinary manner. Rule 4 of Order 37 specifically provides for setting aside the decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37.

Under rule 4 of order XXXVII, the court has the power to set aside the ex parte decree passed in summary suit. The court is empowered to stay the execution of such a decree. Under this rule, an application is made either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period. To set aside ex parte decree, the defendant has not only to show special circumstances which prevented him from appearing but also facts which would entitle him to leave to defend.[14]

Difference between sufficient cause and special circumstances

For setting aside ex parte decree in an ordinary suit, the defendant has to satisfy the court with sufficient cause for his non-appearance. In summary suits, the ex parte decree may be set aside if the defendant shows special circumstances.

The reasons offered by the defendant to explain the special circumstances should be such that he had no possibility of appearing before the Court on a relevant day. For instance, there was a strike and all the buses were withdrawn and there was no other mode of transport. This may constitute “special circumstances”. But if he were to plead that he missed the bus he wanted to board and consequently he could not appear before the Court. It may constitute a ‘sufficient cause’, but not a ‘special circumstance’.

Thus a ‘special circumstance’ would take with it a ’cause’ or ‘reason’, which prevents a person in such a way that it is almost impossible for him to attend the Court or to perform certain acts which he is required to do. Thus the ‘reason’ or ’cause’ found in “special circumstances” is more strict or more stringent than in “sufficient cause”. What would constitute ‘special circumstances’, would depend upon the facts of each case. Special circumstances (for the purpose of setting aside the ex parte decree) may constitute a ‘sufficient cause’, but not vice versa. [15] 

Appeals from Original Decree ( Section 96 to 99A; Order 41)

Meaning of appeal

The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law Dictionary, while construing the concept of ‘appeal’ in its most original and natural sense, explains it as “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgment or decision the Court above is called upon to correct or reverse. It is the removal of a cause from a Court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and retrial”.

Essentials of appealing cases

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in compliance of its directions. The essentials of appealing cases can be narrowed down to 3 elements:

  • A decree passed by a judicial/administrative authority;
  • An aggrieved person, not necessarily a party to the original proceeding; and
  • A reviewing body instituted for the purposes of entertaining such appeals.

Right to appeal

The right to appeal is a statutory & substantive one. The statutory nature of an appeal implies that it has to be specifically conferred by a statute along with the operative appellate machinery as opposed to the right to institute a suit, which is an inherent right. It is substantive in the sense that it has to be taken prospectively unless provided otherwise by any statute. This right could be waived off via an agreement, and if a party accepts the benefits under a decree, it can be estopped from challenging its legality. However, an appeal accrues to the law as found on the date of the institution of the original suit.

One right to appeal

Section 96 of the CPC provides that an aggrieved party to any decree, which was passed by a Court while exercising its original jurisdiction, is conferred with at least one right to appeal to a higher authority designated for this purpose, unless the provisions of any statute make an exception for it. Section 97, 98 and 102 of the CPC enumerate certain conditions under which no further appeal is permitted, hence attributing to a single right of appeal.

No right to appeal

No person has a right to appeal against a decision unless he is a party to the suit, except on special leave of the Court. An essential element to be taken into account while considering one’s right to appeal is whether such person is adversely affected by the decision/suit, which is a question of fact to be determined in each case.

Garikapati Veeraya v. Subbiah Chaudhary

In the instant case, it was held that the pre-existing right to appeal to the Federal Court continued to exist and the old law which created such a right also continued to exist. It construed to the preservation of this right while recognizing the change in its judicial machinery from the Federal Court to the Supreme Court. However, the continuance of the old law is subject to the provisions of the Constitution.

First appeal

Section 96 of the CPC provides that an appeal shall lie from a decree passed by any Court exercising original jurisdiction to the authorized appellate Courts, except where expressly prohibited. A combined reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a regular First appeal may/may not be maintainable against certain adjudications.

Who may appeal?

A regular first appeal may be preferred by one of the following:

  • Any party to the suit adversely affected by a decree, or if such party is dead, by his legal representatives under Section 146;
  • A transferee of the interest of such party, who so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit;
  • An auction purchaser may appeal against an order in execution setting aside the sale on the ground of fraud;
  • No other person, unless he is a party to the suit, is entitled to appeal under Section 96.

A person, who is not a party to the suit, may prefer an appeal from a decree/order if he’s bound/aggrieved/prejudicially affected by it via special leave of the appellate Court.

Appeal by one plaintiff against another plaintiff

In Iftikhar Ahmed v. Syed Meherban Ali, it was concurred that if there exists a conflict of interest between plaintiffs and it is necessary to resolve it via a Court to relieve the defendant, and if it is in fact decided, it will operate on the lines of res judicata between co-plaintiffs in the subsequent suit.

Appeal by one defendant against another defendant

The rule in a case where an appeal is preferred not against the originally opposite parties but against a co-defendant on a question of law, it could be allowed. Such an appeal would lie even against a finding if it’s necessary while operating as res judicata (a matter that has been adjudicated by a competent Court and hence may not be pursued further by the same parties).

Who cannot appeal?

A party who waives his/her right to prefer an appeal against a judgment cannot file it at a later stage. Further, as inferred from Scrutton L.J.’s words:

“It startles me that a person can say the judgment is wrong and at the same time accept the payment under the judgment as being right….In my opinion, you cannot take the benefit of judgment as being good and then appeal against it as being bad”,

If a party ratifies any decision of the Court by accepting and acknowledging the provisions under it, it may be estopped from appealing that judgment in a higher forum.

The appeal against ex parte decree

In the first appeal under Section 96(2), the defendant on the merits of the suit can contend that the materials brought on record by the plaintiff were insufficient for passing a decree in his favour or that the suit was not otherwise maintainable. Alternatively, an application may be presented to set aside such ex parte decree (it is a decree passed against a defendant in absentia). Both of these remedies are concurrent in nature. Moreover, in an appeal against an ex parte decree, the appellate court is compe­tent to go into the question of the propriety or otherwise of the ex parte decree passed by the trial court.

No appeal against consent decree

Section 96(3), based on the broad principle of estoppel, declares that no decree passed by the consent of the parties shall be appealable. However, an appeal lies against a consent decree where the ground of attack is that the consent decree is unlawful being in contravention of a statute or that the council had no authority.

No appeal in petty cases

Section 96(4) bars appeals except on points of law in cases where the value of the subject-matter of the original suit does not exceed Rs. 10,000, as cognizable by the Court of Small Causes. The underlying objective of this provision is to reduce the number of appeals in petty cases.

The appeal against Preliminary Decree

Section 97 provides that the failure to appeal against a preliminary decree is a bar to raising any objection to it in the appeal against a final decree. The Court in the case of Subbanna v. Subbanna provides that, the object of the section is that questions which have been urged by the parties & decided by the Court at the stage of the preliminary decree will not be open for re-agitation at the stage of preparation of the final decree. It’d be considered as finally decided if no appeal is preferred against it.

No appeal against a finding

The language of Section 98(2) is imperative & mandatory in terms. The object appears to be that on a question of fact, in the event of a difference of opinion, views expressed by the lower court needs to be given primacy & confirmed. The appellate court cannot examine the correctness of the finding of facts and decide upon the correctness of either view.

The appeal against a dead person

A person who has unknowingly filed an appeal against a person who was dead at the time of its presentation shall have a remedy of filing an appeal afresh against the legal heirs of such deceased in compliance of the Limitation Act.

Forms of appeal

Appeals may be broadly classified into two kinds:

  • First appeal; and
  • Second appeal.

The sub-categories under appeals are:

  • Appeal from original decree;
  • Appeal from order;
  • Appeal from appellate decree/second appeal/to High Court;
  • Appeal to the Supreme Court.

Forum of appeal

It is the amount/value of the subject-matter of the suit which determines the forum in which the suit is to be filed, and the forum of appeal. The first appeal lies to the District Court if the value of the subject matter of the suit is below Rs. 2,00,000; and to the High Court in all other cases.

Appeals from Appellate Decrees (Section 100; Order 42)

As per Section 100 of the Civil Procedure Code, 1908:

  • An appeal shall lie to the High Court for the decision made by the District Court.
  • An appeal lies if the decree is passed ex-parte.
  • If High Court is satisfied that substantial question of law is involved it shall formulate the decisions.

It is to be noted that the second appeal is on the grounds of a substantial question of law not on finding errors of facts.

Nature and Scope

Nature of the second appeal

  • The right to appeal is not inherited but it is created by statute. The right to file suits is inherent in nature.
  • This right starts from the date of filing suits.
  • The decision of Appellate Court is final.
  • The rights cannot be declared void until and unless declared by the statue.

Scope of the Second Appeal

The Second appeal can be exercised only when the case falls under these categories-

(a) Question of law is involved.

(b)  Question of law should be substantial.

Other justification defined as under Section 100 of CPC.

Question of fact wrongly determined should not be the criteria for the second appeal

Cases Laws

In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held thatThe High Court can not set aside the finding of facts by the First Appellate Court.

In the case of Dnyanoba Bhaurao vs. Maruti Bhaurao Marnor, it was held that finding of fact is against the weight of evidence and there is no question of law in this.

The substantial question of law

The term substantial question of law has not been defined anywhere under CPC but it was first time interpreted by Supreme Court in the case of Sir Chunni Lal Mehta &Sons Ltd vs Century Spg & Mfg co.Ltd.

The proper test in case of determining the substantial question of law differs from our opinion and opinion of the court, in our opinion, it is of general public importance or if it affects the rights of parties and also when decisions are not finally settled by the court or federal body and in cases wherein the court perceives that there involves a principle then that principle to be applied when there is a substantial question of law.

The question of law to be substantial it should be questionable, it will also depend upon the facts and circumstances of the case.

In the case of Mahindra and Mahindra Ltd. vs. Union of India, it was held that case should involve questions of law not merely question of law.

The court should record the reason for the substantial question of law.

In the case of M.S. V Raja vs. Seeni Thevar, it was held by the Supreme Court that formulation of a substantial question of law may be inferred from the kinds of questions actually considered and decided by the court in the second appeal, even though the substantial question of law is not specifically and separately formulated.

Question of the law of general importance

The second appeal can only be filed when there involves a question of law and question of law should be substantial. If it is of general public importance or if it affects the rights of parties substantially. Section 100 Of CPC also deals with the importance of the question of law;

Clause (3) states The memorandum of appeal shall state that a substantial question of law is involved.

Clause (4) states the High Court is satisfied that it involves a substantial question of law in any case and it shall formulate the question.No second appeal in certain cases. This is defined under Section 102 of CPC:

  • No second appeal shall lie when it is of cognizable nature by courts of small issues.
  • No second appeal shall lie when there is the finding of errors in the jurisdiction.

No letters patent appeal

Letter Patent Appeal is an appeal against the decision of a single judge in the same court. This saves the petitioner from going to the Supreme Court, saving a lot of costs.

In this, the petitioner has the option to move the case to another bench where there is more than one judge.

Article 226 and Article 227 of the Indian Constitution has provision and judgement passed in Article  226 states that it can be issued to any person or authority in any cases and Article 227. It empowers The High Court to have superintendence over subordinate courts and tribunals. The judgement of Article 227 does not fall in this category.

The intra-court appeal in case of High Court is for 30 days and it is for 90 days in case of Supreme Court.

Letter of Patent Appeal is not maintainable in the Arbitration Act:

  • The high court of Bombay held that LPA is not maintainable under Section 8 of arbitration.
  • Only section 37 of the arbitration act would apply.
  • Restoration application along with the application of condonation is not maintainable.
  • LPA shall not lie from the decree, judgement of the single bench under section 100.
  • Order of suit, not a judgement from one court to another is not maintainable.

Forum of the second appeal

Appeal from original decree– Generally every decree passed by subordinate court firstly appeal has to lies to High Court. But appeal shall not lie if it has been passed by the consent of the parties under Section 96 of CPC.

Appeal from order

An appeal shall lie from the order which is appealable;

  • It is an order made under section 35A,i.e Compensatory cost.
  • Refusing leave to institute a suit under nature of section 91 and 92.
  •  An order under section 95 i.e compensation for obtaining arrest, or injunction.
  •  Insufficient grounds.
  •  Any order made under rules from which an appeal is expressly allowed by rules.
  •  An order made under this code imposing a fine or directing the arrest.

Appeal from Appellate decree

  •  An appeal shall lie to High Court if decree passed by the appellate court.
  •  If the judgement is ex-parte.
  •  If it involves a substantial question of law.
  •  The substantial question of law has to be formulated otherwise appeal would  be dismissed.

Appeal to the Supreme Court

An appeal shall lie to the Supreme Court if-

  • The case involves a substantial question of law which is of general importance.
  • When the High Court thinks of themselves the case is deemed to be fit and decided by the Supreme Court.

Grounds of Appeal

  • Appellant has to mention grounds of appeal in the memorandum of appeal.
  • Appellant has to mention the ground of objection and present it before the Appellate Court.
  • The new ground can be raised by additional application later on, and the High Court has the power to reject or accept the application.

Power of High Court to decide the issue of fact

This is defined under Section 103:

The High Court can decide the issue of facts if sufficient evidence is found and the court thinks it is necessary for the disposal of an appeal –

If it has not been decided by lower Appellate Court or both by the Court at the first instance and to the lower Appellate Court or if it has been wrongly decided by Court and there involves a substantial question of the law which is defined under section 100 of CPC.

Procedure at hearing

  • Every appeal shall be in the form of a memorandum signed by the appellant and to be presented before the court.
  • Where memorandum is not made as per prescribed by law then the court has the power to either reject or return the application to the appellant and can give the party prescribed time to submit an application again.
  • When an appeal is not made on time then a statement of reason along with some proof should be submitted to court and court must satisfy from the application that there is reasonable cause for the application not made on time.
  • No order of stay of execution of a decree shall be made unless the court decides to hear the appeals.
  • Registry of Memorandum of appeal is necessary.
  • The Appellate Court, after calling the respondent to present before the court and ask to give an answer and also ask him to give application after application court may call the Appellant to pay the Security Cost.
  • The appellant Court after hearing to the appellant may dismiss the application without sending the notice to the lower court and also without sending a notice to the respondent.
  • The appellate court should fix a day for hearing and give notice to the respondent if the respondent does not appear on a given day then case will be ex- parte.

The respondent may do any cross objection.

After hearing the appeal the appellate court may-

  • Remand the case.
  • May frame the issue and refer it to for trial.
  • Take additional evidence or requires such evidence to be taken.
  • The appellate court after resetting the issue may pronounce the judgement.

Document to be submitted with the appeal

  • Form No.
  • The order appealed against -2 copies.
  • Order of Assessing Officer- 2 Copies.
  • Grounds of appeal.etc.

Pending appeals

An appeal itself does not operate as a stay of proceedings until the decree/ judgement appealed and execution of decree not stayed. An appeal is filed to appellate court however the appellate court can order a stay of execution if the court thinks it necessary.

If the application is made for seeking stay before the expiration of time and if the court thinks it necessary can grant the execution of stay.

The probability of loss or party suffering loss and the party has filed an application to grant a stay and that too without delay then the court can grant a stay.

Cases

In the case of Atma Ram Properties (p) Ltd. v. M/s. Federal Motors Pvt.Ltd

Stay order can be made conditional too. But the condition attached to stay order must be reasonable.

In an appellate court stay of proceedings can not be in operation for more than six months it has been held by the Supreme Court, in Asian Resurfacing of Road Agency Pvt. Ltd.& Anr. V. Central Bureau of Investigation.

General Provisions relating to Appeals (Section 107,108)

Reference to High Court (Section 113; Order 46)

Nature and scope

A court subordinate to the High Court is empowered to refer the case under Section 113. The court in relation to Section 113 means a court having Original Civil Jurisdiction. A reference can be made only when there is a question of law or validity of any Act or Ordinance or of any provision of the Act is involved and can be sought only in a pending suit, appeal, or other proceedings. Section 115 deals with revision. It empowers the High Court to call for the record of any case decided by a court subordinate to it.

Conditions

Where any matter involving a substantial question of law is referred by the subordinate court to the High Court for its opinion upon that matter it is known as a reference. According to Section 113, any court can refer the case to the High Court for its opinion and the High Court may then make an order as it deems fit subject to certain conditions and limitations.

Rule 1 Order XLVI for the purpose of reference provides certain conditions and limitations that are needed to be satisfied for the High Court to entertain the reference from the subordinate court. These conditions are given below :

  • There should be a pending suit or appeal where the decree is not subject to appeal.
  • There must be a question of law or usage having the force of law.
  • The Court that is trying the suit or appeal or executing the decree must entertain reasonable doubt on that question of law.

As per proviso to Section 113, the question of law involves questions relating to the validity/provisions of any Act, Ordinance, or Regulation or other questions.

Who may apply?

A subordinate court may refer the case with its own opinion on the point to High Court either on its own motion or; on the application of any of the parties.

In Manager Metro Railway vs M/S. B.C.L. Secure Premises it was ruled that Section 113 is not a provision that enables the High Court to take reference suo moto or to order a reference. It is a provision that enables the subordinate court to refer the case to the High Court.

Power and duty of referring court

To entertain the doubt on the question of law. In Banarsi Yadav vs Krishna Chandra Dass, it was held that a subordinate court may refer a case to the High Court when there is reasonable doubt regarding the constitutional validity of an Act.

Power and duty of the High Court

  • To make any order as it thinks fit to when the case is referred to it by the subordinate court.
  • Answer or refuse to answer the question in a case and send the case back to the referring court for disposing it.
  • To quash the case referred to it.

Article 228 and Section 113

In Ranadeb Choudhuri vs Land Acquisition Judge, the court observed, Section 113 of the Civil Procedure Code is a statutory provision whereas Article 228 is a constitutional provision. Section 113 does not relate to the interpretation of the constitutional provisions but to the question of the validity of an Act. Both Section 113 and Article 228 may relate to a common case but are not coextensive.

It was held in Rama Sundari Devi v. Indu Bhusan Bose that under Section 113 the court, subject to certain conditions, may state and refer the case to the High Court for its opinion and the proviso to this section specifically mentions the case relating to the validity of an Act. Whereas under Article 228, if the High Court is satisfied that a case is pending in a subordinate court that involves the determination of the substantial question of law for the interpretation of the Constitution. The High Court shall withdraw the case and either dispose of the case itself or determine the question of law and return the case to the court from which the case has been withdrawn.

Procedure at hearing

The following procedure has to be followed at the time of hearing:  

  • As per Rule 1, the court trying the suit or appeal or executing the decree either on its own or on an application of the parties will draw up the statement of facts and point of doubt of the case and pass a decree or order contingent upon the high court on the points referred.
  • After hearing the parties the High Court will decide the points so referred. A copy of the judgment along with the signature of the registrar will be transmitted to the referring court as per Rule 3.
  • The referring court on receiving the copy will proceed in confirmation with the High Court’s decision to dispose of the case.
  • The High Court has been vested with the power under Rule 5 to make such orders and to amend, alter, cancel, set aside any decree or order the referring court has passed or made.

As per Rule 7, In case the question arises as to the jurisdiction of small causes court, a record with the statements of the reasons for doubt will be submitted to the High Court.

Costs

Rule 4 of Order XLVI talks about the costs of reference to the High Court. It says that if any cost is consequent upon a reference for the decision of the High Court, it shall be deemed to be the costs in the case.

Review (Section 114; Order 47)

Order XLVII in the Code of Civil Procedure, 1908 (CPC) together with Section 114 of the Act, provides the procedure for Review. Section 114 merely produces the conditions necessary for the filing the application for Review to the ‘court’ by which decree or order, sought to be reviewed under the application, was passed or made. While Order XLVII along with the same conditions as enumerated in the section, lays down grounds for Review and other procedural rules governing the same.

In order to understand the legal procedure, Two Primary Aspects of the concept need to be borne in the mind, which are as follows –

“Same Court” – Rule 1 of the Order specifically provide that application for Review of the decree or order has to be made to the very same court which passed such decree or made such order.

“Court” – The term has not been defined in the CPC, but impliedly interpreted as “Any Court having the jurisdiction to try the suits of a civil nature”[i], now such civil jurisdiction may be such as conferred upon the courts by the CPC itself, or upon the Tribunals by the special statues, or upon the Supreme Court and High Courts under their civil appellate jurisdiction[ii], by the Constitution of India.

Review Jurisdiction for the Supreme Court – The Apex Court, therefore also falls within the meaning of the term “Court” while hearing any suit of a civil nature. It however has been separately empowered with the review jurisdiction under Article 137 of the Constitution, but for the cases other than that of civil and criminal, since for such cases, it is being governed by the CPC and Criminal Procedure Code only[iii].

Review Jurisdiction for the High Courts – Apart from the power conferred upon it as a “Civil Court” under the CPC, it has been held by the Apex Court in the case of Shivdeo Singh v. State of Punjab[iv] :

“It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.”

ORDER XLVII

CONDITIONS FOR APPLICABILITY

An application for Review may be filed by any person, if such person perceive himself as aggrieved by[v] –

“A decree or order which has been passed or made, by any civil court, And from such decree or order, an appeal is allowed, But no appeal has been filed yet, at the time of filing of the Review application”,

However once, the review application is filed thereafter, there is no legal bar on filing of an appeal from such decree or order. If appeal is so preferred and decided by the speaking order i.e. on merits, before the Review application, then the Review application cannot be continued with[vi]. And vice versa i.e. where review application is heard and decided before the appeal then appeal becomes liable to be dismissed. So, where both are pending, whichever is decided first, will be said to have superseded the original decree or order, operationally therefore, such original decree or order no longer stands and hence the other pending proceeding will be estopped.

Although, if appeal or even Special Leave Petition (SLP) is preferred, whether before the institution of Review or after it, but is not heard and gets dismissed for the reason being legally incompetent or due to the “application of Law of Limitation”[vii], such dismissal does not create any legal obstruction for the filing of Review or proceeding thereof, if the decision is otherwise competent to get reviewed on the grounds provided in the Order[viii].

Or, “a decree or order has been passed or made, by any civil court And, from such decree or order, no appeal is allowed”,

This point of application provides the opportunity to an aggrieved person, in presence of a legal prohibition on filing of an appeal, to get his case reheard on any of the grounds as set out in the Order.

Since this condition being Non-Appealable, is one which is condition precedent for the Revision as well[ix], and so the confusion may arise for a layman if he is aggrieved by a decree or order, that which of the recourse available, should be opted. To consider the issue, it has to be understood that Review is wider in scope than Revision, since Revision can be done only on the grounds of jurisdictional or procedural error by the High Court, while, as already discussed that Review can be done only by the same court and grounds for Review, as explained below in this article, are much wider than merely jurisdictional or procedural error.

In fact, it may technically be said that, if a decree or order, is eligible to get revised under the “Revision” then it is mechanically eligible to get reviewed under the “Review” as well, provided such decree or order is Non-Appealable, but so is not the other way round, due to the very specific scope of Revision.

Or, “a decision on a reference from a court of a small cause”.

Where, reference has been made by a court of a small cause, to the High Court under Order XLVI, the decision of the High Court, on such reference is binding, but person aggrieved by such decision may apply for review of such decision.

WHO CAN FILE A “REVIEW”

“Any person who consider himself aggrieved” is what the rule provides, and it being legally clear in terms, on the face, gives the interpretation that person filing a review need not necessarily be a party to the suit, rather may be one who simply derives a legitimate interest in the suit or according to him, such interest has been adversely affected by the decision of such suit. And therefore any such person would have locus standi to file a review.

Supreme Court in the case of Union of India v. Nareshkumar Badrikumar Jagad & ors.[x], held:

“Even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respect”.

GROUNDS FOR REVIEW:

Review can be filed, if there is[xi]:

“Discovery of New and Important matter or evidence, which, after the exercise of due diligence was not within the knowledge of the person seeking review or could not be produced by him at any time when the decree was passed or order made”,

Discovery of any new matter or evidence necessarily has to be an important or relevant as such to the extent that had it been brought on record at any time when the decree was passed or order made, it would have an impact and might have altered the decision[xii]. Moreover, absence of such important matter or evidence on record at the time of decision, must not be the result of negligent attitude of the concerned person and therefore such person applying for Review is required by law to strictly prove that such matter or evidence was not within his knowledge or could not be adduced, even after exercising due diligence and unless such proof is given, application shall not be granted[xiii].

Court may take subsequent events into consideration while reviewing a decision[xiv], however the fact that the question of law on which decision, sought be reviewed, is based has been reversed or modified subsequently by the higher authority in any other case, would not make it a new and important matter, to review the decision[xv].

Illustration – “A sued B for a sum of money alleged to be due under an agreement and obtained the decree for the same, against which B, subsequently filed an appeal in the Privy Council, and while the appeal was pending, A obtained another decree against B on the strength of the former decree, for another sum of money alleged by him to have become due under the same agreement and later Privy Council reversed the former decree in the appeal, on the basis of which B applied to the court which had passed the second decree, for the Review on the ground of the decision of Privy Council and so was accepted and held by the court to be a new and important matter”[xvi].

Or, “some mistake or error apparent on the face of the record”,

The mistake or error should be such, which is very obvious and visible itself on the face of it, and therefore any error found out from the judgment after a long reasoning and law based analysis, cannot be said to be one apparent on the face of record, as a ground for review. However, such mistake or error can be of fact and as well as of law.

Illustrations – “Non-consideration of the very obvious application of particular law, such as law of limitation or particular provision to the facts of the case, setting aside of the ex parte decree without being satisfied of the any of the conditions laid down in Order 9 Rule 13, application of religious law which has not been legally recognized, wrong interpretation of a settled legal issue, where a commission was issued to examine a witness in a country where no reciprocal arrangement exists, have been held to be an error apparent on the face of record”[xvii].

Or, “any other sufficient reason”.

Before 1922, the application of the term “Sufficient reason” was unrestricted and unregulated, finally in that year a principle came to be laid down by the Privy Council in the case of Chhajju Ram V. Neki[xviii], which can be summarized as that “the third ground mentioned, is no doubt giving wide scope to the grounds for review, but at the same time that “sufficient reason” has to be at least analogous (ejusdem generis) to either of the other two grounds and the mere reason that decree was passed or order made on erroneous ground that court failed to appreciate the important matter or evidence, would not make any good ground for review, and therefore in such cases, the appeal and not review, is the remedy to get such erroneous decree or order corrected”[xix].

Illustrations – Failure to adhere to legal provision which required the court to act in a particular manner would fall within the meaning of “Sufficient Reason” as analogous to the “Error Apparent on the Face of the Record”[xx]. Order of the dismissal of a suit due to default of the plaintiff, cannot be reviewed on the ground of misapprehension of the counsel as sufficient reason, but if order was on its face illegal then such order may be reviewed on the ground as error of the law apparent on the face of the record.

RESTRICTIONS

The order under its Rule 9 excludes two following kinds of application, from the consideration –

“An order made on the application for a review”e. grant or rejection of the application, either case cannot be reviewed.

“Decree passed or order made on review”e. where application is granted, case is re-heard and the decree or order which is passed or made on merits of the case, superseding the original one, cannot be further sought to be reviewed for the second time.

Revision (Section 115)

Meaning

Revision means to go through something carefully, thoroughly and diligently. Cases can be revised by the High Court as it possesses revisional jurisdiction as defined under Section 115 of the Code of Civil Procedure. The High Court has the right to revise cases decided by subordinate courts to ensure delivery of justice and maintenance of fairness.

Nature, Scope and Object

The primary objective of a revisional authority of the High Court empowered by Section 115 is to ensure that no subordinate court acts arbitrarily, illegally, capriciously, irregularly or exceeds its jurisdiction; and allows the High Court to guarantee the delivery of justice while ensuring that the proceedings are conducted in accordance with the rule of law and furtherance of fairness. It must be noted that the judges of subordinate courts have the absolute authority to decide on cases. They do not commit any “jurisdictional error” even when they wrongfully or extra-judicially decide a case. The High Court has the power to revise these jurisdictional errors committed by subordinate courts. This provides an opportunity to any aggrieved party to rectify a non-appealable order by a subordinate court.

The High Court can revise any case by a subordinate court in which no appeal lies when:

  • The subordinate court has exercised jurisdiction not vested in it by law.
  • The subordinate court has failed to exercise jurisdiction vested in it by law.
  • The subordinate court exercises its jurisdiction illegally or with material irregularity or in breach of some provision of the law or by committing some errors of procedure in the course of the trial which may have affected the ultimate decision.

Who may file?

The application for revision can be filed by any aggrieved party once the case is decided, provided that there is no appeal against the case presently. The High Court may then decide to revise the case if the proper cause is discovered such as extra-judicial activity or illegal and erroneous procedure practised by the subordinate court. The High Court may also exercise revisional jurisdiction suo moto under the Code of Civil Procedure.

In the case of S.Muthu Narayanan V. Paulraj Naicker, 2018, the revision petition is dismissed and the order passed previously is confirmed as the revision petitioner has no right to challenge the executability of the decree.

Conditions for Revision

The conditions when the High Court can exercise its revisional jurisdiction is laid down in Section 115 of the Code of Civil Procedure. All these conditions must be met for the High Court to exercise its revisional jurisdiction. These are as follows:

Precedents

The case must have already been decided and judgement declared by the subordinate court. A case cannot be revised if it has not been decided in the first place and no judgement is given. The expression “case decided” was not defined in the CPC, 1908. This gave rise to a number of conflicting decisions on the question of whether the said expression included an interlocutory order also. This conflict was resolved in the case of Major S.S. Khanna V. Brig. F.J. Dillon, 1963 which declared that Section 115 applies even to interlocutory orders. It was observed by Shah J.,“The expression ‘case’ is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained in Section 115 to the entirety of the proceedings in a civil court. To interpret the expression “case” as an entire  proceeding only and not a part of the proceeding would be to impose an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the ‘perpetration of gross injustice.”

In the case of Baldevdas Shivlal V. Filmistan Distributors (India) (P) Ltd., 1969, the Supreme Court held that a case may be said to have been decided if the court adjudicates for the purpose of the suit some right or obligation of the parties in controversy. Every order in the suit cannot be recorded as a case decided.

An explanation was added to Section 115 by the Amendment Act of 1976, on the recommendation of the Joint Committee of Parliament. This makes it clear that the expression, “case decided” includes any order made, or any order deciding an issue, in the course of a suit or any other proceeding. Thus, “any case which has been decided” means each decision which terminates a part of the controversy involving the question of jurisdiction.

No appeal lies

There must not be any appeal lying against the case decided by the subordinate court. The High Court cannot revise a case if there is a pre-existing appeal against the case as the revision interferes with the appeal and vice-versa. The revision can only be filed once the appeal is dismissed. The word “appeal” includes both the first appeal and second appeal. Therefore, the revision can only lie when the appeal is dismissed or does not lie.

Jurisdictional error

The revisional jurisdiction can be applied by the High Court when the subordinate court appears to have:

  • Acted in excess of jurisdiction vested in it by law, or
  • Failed to exercise the jurisdiction vested in it by law, or
  • Displayed material irregularity and exercised its power illegally or in breach of the provisions of law.

Subordinate court

The High Court cannot exercise revisional jurisdiction unless a case is decided by a court which is subordinate to the High Court. Only a court of civil judicature is considered and this does not include any person acting in an administrative capacity. As a general rule, where it is provided that a matter should be decided by a particular court, the presiding officer of such court will act as a court. But where it is provided that a particular judge should decide a matter, the provisions of the statute will have to be considered for determining whether the judicial officer acts as a court or as a persona designata. The revision by the High Court is mainly done to rectify the jurisdictional or procedural errors caused by subordinate courts in the course of proceedings in any case when an application is filed by an aggrieved party.

Alternative remedy

The power of revisional jurisdiction and its application lies under the discretion of the High Court and cannot be claimed as a right by any aggrieved party. Several factors are considered before the authority of revisional jurisdiction is exercised. If there is the presence of an efficacious or alternate remedy available to the aggrieved party, the court may not exercise its revisional jurisdiction and instead suggest the alternate remedy and relief to the aggrieved party. This is done to prevent the misuse of revisional jurisdiction and make it applicable only in cases where necessary.

Limitations on revisional jurisdiction

Article 131 of the Schedule of Limitation Act provides a limitation period of 90 days for filing the revision under the Code of Civil Procedure from the date of decree or order or sentence sought to be revised. Thus, the limitation period prescribed for filing the revision against the impugned order is 90 days. The application for revision must be filed with the High Court within the limitation period.

In the case of Salekh Chand V. Deepak Sharma 2015, During the pendency of the revision petition, an application was filed under Section 5 of the Limitation Act by the revisionist. But it was declared by the Court that Article 131 of the Schedule of Limitation Act stated that the limitation period to file for revision is 90 days. Thus, the revision petition was not barred by limitation and allowed to proceed.

In the case of Samudrala Nagabhushanam V. Venkana Raghavayy, 1966, the Court decided that the petition for revision in this particular case was governed under Section 22 of the Andhra Pradesh Buildings Control Act, 1960 and not Role 41-A(2) of the Appellate Side Rules of the High Court of Andhra Pradesh. Thus, the revision is not barred by limitation.

Suo moto exercise of power

The term ‘suo moto’ means on its own motion or self-decision. The judiciary has the power to revise cases suo moto. This means that the small court has the authority to make its own decision to exercise the power of revision and takes the decision to revise any case on its own accord, i.e. without any application filed by any aggrieved party. The sole decision as to the exercise of the power of revision rests with the court and the aggrieved party is not entitled to receive it. The judiciary takes up a matter on its own on grounds of blatant violation of the law, to maintain public order, to prevent the gross constitutional violation, to remedy grave injustice. This assumes the public at large as one of the parties. Usually, an amicus curiae is appointed in such matters to assist the court. A great amount of public interest rests in suo moto exercise of revisional powers by the High Court.

In the case of Chimanbhai G. Patel V. D.Y. Collector, 1999, it was stated by the Court that a Deputy Collector or Assistant Collector cannot exercise the powers of revision suo moto. Therefore, the order was set aside as there was no jurisdiction in the exercise of revisional powers.

Interlocutory Orders

The Interlocutory order which is often called interim order is a decision of the court given during the proceedings and before the finality of a case to ensure that the interest of either party is not harmed due to or during the process of justice. It settles subordinate issues related to the main subject due to the time-sensitive nature of those issues. Section 94 of Part VI of the Code of Civil Procedure lists the ‘Supplemental Proceedings’ which mentions how the court can issue interlocutory orders to prevent the ends of justice from being defeated. The court can:

  • Issue a warrant for the arrest of the defendant or if he fails to comply with any order for security, commit him to the civil prison.
  • Direct the defendant to produce any property belonging to him and furnish it as security by placing it at the disposal of the Court.
  • Grant temporary injunction and commit a guilty person to a civil prison in case of disobedience, and order his property to be attached and sold.
  • Appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property.
  • Make any such interlocutory orders as may appear before the Court to be just and convenient.

A few examples of interlocutory orders are as follows:

  • Appointment of a Commissioner to conduct search and seizure.
  • Temporary Injunctions.
  • Appointing a Court Receiver to collect any payments or rent.
  • Assign security to maintain a cause.

In the case discussed in Sub-Committee on Judicial Accountability V. Union Of India, 1991, it was held that the Supreme Court will refrain from passing any interlocutory order which has the potential to and may interfere with or has an effect of pre-judgement on any delicate issue on the mail matter.

Death of Applicant

The death of an applicant does not abate the proceedings of the application of revision as revision is not governed under Order 22 of the Code of Civil Procedure. Once the application for revision is filed, the proceedings shall continue despite the death of the applicant and the order shall be given to the legal representative of the applicant.

Doctrine of Merger

The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. It can be observed when litigants agree to a settlement and seek to have their settlement incorporated in a court order. The doctrine of merger cannot be applied universally. It will depend on the nature of jurisdiction exercised by the superior authority and the subject-matter in challenge laid shall determine the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. The High Court possesses the authority to reverse or modify the judgment of a subordinate court in case of a violation of jurisdiction or failure to comply with the jurisdictional rules. The doctrine of merger is based on the principle of union of two conflicting interests which cannot be held by one person at the same time. As observed in Section 111(h) of the Transfer of Property Act, 1882 leasehold rights in favour of the appellants are extinguished under the doctrine of merger.

Procedure of Revision

Revisional jurisdiction of the High Court can be exercised suo moto to ensure the delivery of justice. The authority to revise a case of jurisdictional error of subordinate courts lies with the High Court and cannot be demanded as a right by any aggrieved party. This brings us to the second method which involves an application filed by the aggrieved party for revision. This merely brings the jurisdictional error of the subordinate court to the attention of the High Court which may then decide to revise the case. The application may also be denied if the High Court feels that substantial justice has been done.

Once the High Court initiates the proceedings, the case is revised to ensure jurisdiction is not exceeded by the subordinate court. But no changes can be made with regards to any decision of the subordinate court even if unlawful, as long as the decision lies within its jurisdiction. After a decision has been made and if there is extra-jurisdictional action by the subordinate court, it is rectified and the reasons are recorded.

Recording of Reasons

The reasons for the dismissal of a case or changes to be applied in case of extra-jurisdictional activity by a subordinate court are to be filed for record. The recording of reasons is done to ensure the court can show cause or prove the basis of its decision for changes made or refusal to make any change with regards to the jurisdiction of the subordinate courts.

Letters Patent Appeal

Letter patent appeal (LPA) is an appeal by a petitioner against a decision of a single judge by another bench of the same court. There are chances that a single judge can go wrong when dealing with facts or laws. Thus, a remedy is provided to challenge the decision of that single judge by a bench of more than one judge of the same court. An LPA petitioner can save costs by challenging the single judge this way rather than move the Supreme Court. Usually, judgment and order passed under Article 226 of the constitution is appealable as LPA, but judgment and order passed under Article 227 is not appealable under this category.

The rules regarding the application of the Letter Patent Appeal is as follows:

  • Letter patent appeal can be filed in the High Court and only in such High Courts that have been established by the letter patent.
  • Division bench can file a letter patent appeal to the Supreme Court. It means it will also include a full bench of 5 judges, 7 judges and also the Supreme Court.
  • Letter patent appeal is the only court established by a letter patent under the constitution and it is called the second appeal.

Conversion of Revision into Appeal

The nature and scope of revisional jurisdiction is different from appellate jurisdiction. If an order impugned is revisable, it cannot be converted into an appeal if there is no presentation of appeal in the eyes of law; as seen in the case of Munshi Singh v. Tula Ram (1980 MPLJ SN 61). The second appeal cannot be converted into revision in exercise of discretion, as seen in the case of T.K. Ramanujam Pillai v. Subramaniam (AIR 1967 Mad 298). If the revision is not maintainable, the petitioner can file appeal explaining the delay by filing an application under Section 14 of the Limitation Act along with memo of appeal, as seen in the case of Om Prakash V. Dwarka Prasad, 2004.

Law commission’s view on Revision

The Law Commission states that the following should be kept in mind while exercising the revisional powers of the High Court:

  • The ruling of the Court is absolute unless the party to whom it applies can show cause why it should not apply. This is Rule Nisi and should not be issued except under careful and strict scrutiny.
  • The record of the subordinate court should not be called for where no stay in granted. And where it is necessarily required copies are to be produced.
  • All efforts should be made to dispose of the revision within two to three months where a stay is granted.

Case laws

Brijlal Ramjidas v. Govindram Gordhandas Seksaria(Judgement)

In Brijlal Ramjidas v. Govindram Gordhandas Seksaria,, Supreme Court held that Section 13 speaks not only of “Judgment” but “any matter thereby directly adjudicated upon”. The word ‘any’ clearly shows that all the adjudicative parts of the judgment are equally conclusive.

Neeta vs. Shiv Dayal Kapoor & Others(Res sub-judice)

In Neeta vs. Shiv Dayal Kapoor & Others it was held the subsequent matter can not be stayed if the conditions mentioned in Section 10 are not fulfilled. In the apparent case, the two courts which tried the same issues were not the courts having concurrent jurisdiction. Therefore, the proceedings in the subsequent court were not stayed.

Lowe v. Haggerty(Res judicata)

In the case of Lowe v. Haggerty, a question was raised considering the effect of former judgment for the defendant when he was sued by the guest. It was held that a suit was bar by the driver of the car which had been struck by another person. There was no previous record that disclosed what was in the first proceeding. It was held that it was not possible to determine what was the issue involved in the previous suit. A different situation was there the court disposed of the record made by the parties. Nonsuit was not granted in this case and the plaintiff’s appeal was refused.

Official Trustee vs Sachindra Nath(Jurisdiction and place of suing)

The court held that in order to deal with the matter the court must not be enough to decide a particular matter but also the court has the power to pass the order sought for.

Annapoorani Ammal vs G.Thangapolam(Appeals from Appellate Decree)

In the case of Annapoorani Ammal vs G.Thangapolam, it was held that the High Court can only interfere when there involves a substantial question of law.

A Sreenivasa Rao and Ors v. Govt of Andra Pradesh(Reference to High Court)

In A Sreenivasa Rao and Ors v. Govt of Andra Pradesh, it was held that the subordinate court is not empowered and entitled to decide the validity of any Act, Ordinance or Regulation and Section 113 makes it mandatory for the subordinate court to refer the pending case to the High Court for determining the question relating to the validity of an Act, Ordinance or Regulation which is necessary for the case to be disposed of by stating its reasons and opinions for referring the case to the High Court for its opinion.


LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here