This Article is written by Aakash M Nair, a 4th year Student of Delhi Metropolitan Education law School affiliated to GGSIP University. He discusses the most common technical objections which you can take while dealing with any civil proceeding.
In civil litigation, sometimes you can win or lose a case just on the basis of technical ground. Even a single crucial technical error by the opposite party can help you to win a case while at the same time you can lose a matter just because of a procedural mistake when everything else was in your favour. As a litigator, you must prepare the case in such a way that there is no scope for the opposite party to take any objection at least on the technical grounds.
Here are the most common technical objections which you should remember while dealing with any civil proceeding. You can also use them to defend or change the direction of the case in your favour.
Table of Contents
The objection as to jurisdiction
One of the most common objections which are used in civil litigation is regarding the jurisdiction of the court. Here, you need to understand what is the jurisdiction of a court? In essence, jurisdiction is the power or authority of a court to hear and decide a matter.
A judgment passed by an incompetent court without having the jurisdiction will result in the nullity and such judgment stands vitiated. The validity of the decree can be challenged at such an issue pertaining to jurisdiction can be raised at any belated stage of the proceedings including in appeal or execution.
“The Court cannot derive jurisdiction apart from the statute. It is in this context that we must also deal with the concept of “coram non judice.” Here, Coram non-judice is a latin maxim which means that the trial is not before a judge who has the authority to hear and decide the matter.
How to know if a civil court has jurisdiction to try the suit?
Section 9, CPC, provides that every civil court has a jurisdiction to try any matter of civil nature unless it is expressly or impliedly barred.
Jurisdiction of the civil court depends on two important conditions:
Firstly, the suit must be of civil nature. The expression “civil nature” has not been defined by the code. In Black’s Legal Dictionary the expression “civil” is defined as “relating to private rights of an individual or corporation and remedies sought in a civil proceeding as contrasted with criminal proceedings’. In law, it is understood as an antonym of criminal.
Historically the two broad classifications of the law were civil law and criminal law. Revenue, tax and company etc, were added to it later. But they too pertain to the larger family of ‘civil’. There is thus no doubt about the width of the word ‘civil’.
The scope of the section has been stretched by adding the word nature along with civil which means that the court has the power to hear not only those suits which are “civil” but also the suits which are of “civil nature”. The term “nature” has been defined as “the fundamental qualities of a man or thing, identity or essential character.” The section will be available to all suits which are not only civil but of civil nature.
Difference between civil nature and criminal nature
Right of civil nature is different from the right of criminal nature. Civil law is concerned with resolving disputes between individuals, organisations or both wherein the wrongdoer is made liable to compensate the victim. Whereas, criminal law relates to offences or crimes committed against the society as a whole and the criminal is punished for his crime(s) to deter, retribute or reform him.
The purpose of civil law is to sustain the rights of a person and to compensate him. Whereas, criminal law intents to maintain law and order, to protect society and punish the wrongdoer.
A suit of civil nature deals with the private rights of citizens. If the principal question arising in the suit is related to caste or religion, the suit is not of civil nature. But if the principal question is of civil nature like right to property or right to office and the facts involving cast and religion are incidental to it then the jurisdiction of the civil court is not barred.
The Explanation of section 9 provides that a suit in which the right to property or an office is contested, such suit is of civil nature regardless of the fact that such right may depend entirely on the decision of questions related to religious rights or ceremony. At the same time, explanation II of section 9 provides that it is irrelevant whether any fee is attached to the office referred in explanation I or whether or not such office is attached to a particular place.
The two explanations clearly bring out the legislative intention of extending operations of the section to religious matters whether the right to property or office is involved irrespective of whether any fee is attached to the office or not.
For example, a temple is managed by a religious trust and the dispute is regarding the right to office in that trust which is governed by customs and religious practices. Here, civil courts shall have the jurisdiction provided that the principal question to be determined is of civil nature and the religious aspect of the suit is incidental to the main question of fact or law.
Secondly, the power of the civil court to hear and decide a suit should not be barred. Now a suit may be barred in two ways-
- Expressly barred or
- Impliedly barred
A suit is expressly barred when a special enactment which deals with such suits expressly provides for bar on the jurisdiction of civil courts.
For example, Income tax tribunal has the jurisdiction to entertain matters related to income tax. Similarly, Industrial tribunal deals with industrial disputes. Therefore, the civil court is barred from entertaining suits relating to income tax or industrial dispute.
But if the remedy provided by the special court is not adequate or all the questions cannot be decided by the special tribunal, the jurisdiction of the court is not barred. The aggrieved party can approach the civil court.
A suit is said to be impliedly barred when it hinders the general principles of law. Suppose a remedy is provided in a specific form but the party insist on availing that remedy in any other form, the court will provide the remedy in the specified form only.
Suits which are of civil nature but holds importance or relates to public policy, such matters are also barred from the jurisdiction of the court. For example, the suit against a judge during the course of his duty, or a suit of political nature.
To summarize, You can take objection with respect to jurisdiction if
- The court is not competent to entertain the suit.
- The principal question of fact arising in the suit is not of civil nature.
- The suit is expressly or impliedly barred by law.
The objection as to the place of suing
Place of suing means the venue of the trial, that is, the court in which the case is to be tried. The general rule is that the suit must be instituted in the lowest grade court competent to try the suit (Section 15). Defendant has to take opposition to the place of the suing at the earliest opportunity. Opposition cannot be taken in the appellate court or the revisional court unless it was taken at the court of the first instance but was rejected. (Section 21)
Place of suing depends on
- Jurisdiction as to subject matter;
- Territorial jurisdiction;
- Pecuniary jurisdiction.
Jurisdiction as to the subject matter
Different courts have the power to entertain different kinds of suits. Certain courts have no power to decide certain kinds of suits. For example, suits related to family matters can only be tried by the family court and cannot be entertained by the Court of a Civil Judge.
Similarly, matters exclusively triable by tribunals cannot be tried by the civil courts. For example, Income Tax tribunal has the jurisdiction to try tax-related matters, environment-related matters can be tried by the national green tribunal.
Therefore, certain courts are barred from entertaining certain kinds of suits. And if a decree is passed by the court which lacks the jurisdiction to hear the suit, such judgement made is a nullity.
A court can entertain only those suits which are within the local limits. The Court which does not have the territorial jurisdiction cannot adjudicate on suits which are not within their territorial limits. Any decree passed by such court amounts to nullity and such decree cannot be executed in the courts.
- If the subject matter is an immovable property, the place of suing will be the area where such property is situated. The court having territorial jurisdiction over such area can take cognizance. (Section 15 to 18)
- With respect to compensation for wrong and immovable property, If a suit can be tried by different courts having the territorial jurisdiction, such suit can be instituted in any court within the local limits of which any portion of the property is situated.
- If the subject matter is movable property or compensation for a wrong, the place of suing can be the area: (Section 19)
- Where a wrong has been done
- Where the defendant resides
- Where the defendant carries on his business
- Where the defendant works for gain
For any other subject matter, the place of suing is: (Section 20)
- Where the cause of action, wholly or partly arises
- Where the defendant resides or carries on his business or works for gain
- If there are two or more defendant, the area where any one of them resides or carry on business or works for gain.
In the case of pecuniary jurisdiction
The suit should be filed in the court which has the pecuniary jurisdiction to try the suit. Every civil court has a particular pecuniary limit, and they cannot entertain cases beyond that limit. The valuation of the subject matter to the suit should be within the pecuniary limits of the court, then only the court will have the pecuniary jurisdiction to decide the suit.
For example, the pecuniary jurisdiction of Rajasthan district courts is as following:
Senior Civil Judge: less than or equal to Rs. 5 lakhs
Civil Judge: less than or equal to Rs. 2 lakhs
Pecuniary jurisdiction is decided by the respective high courts of each state. Therefore, it may vary in your state depending on which state you are residing in.
For example, X files a suit in civil court which has the power to grant relief up to Rs. 2,00,000 and the subject matter of the suit is valued at Rs. 2,20,000. The civil judge will direct X to approach the court of a senior civil judge who has the pecuniary limit of 5 lakhs and has the jurisdiction to grant the relief sought by the X.
A party can take objection on following grounds:
- The suit is not filed in the court of lowest grade.
- The subject matter of the suit is not situated within the jurisdiction of the court.
- The court does not have territorial jurisdiction.
- The valuation of suit exceeds the pecuniary jurisdiction of the court.
The doctrine of res judicata Applicable(section 11)
The doctrine of Res Judicata or the rule of conclusiveness of judgment is based on the need of giving a finality to judicial decisions. It states that once a matter has been finally decided by a competent court, no party can be permitted to reopen it in a subsequent suit. Let us understand this concept with an example.
Suppose, A files a suit in a civil court. The court adjudicates the matter and pronounces the judgment. A is not satisfied with the judgment and files another suit with the same subject matter, the same title and against the same parties, in the same court or a court having the same jurisdiction. Such suit will be barred by the principle of Res judicata because the subsequent suit is directly and substantially similar to the initial suit which has already been decided. This principle is applied with the objective to protect the defendant from double vexation.
Therefore, if the defendant is made a party to a suit which is directly and substantially similar to a suit which has already been adjudicated in his favour, the defendant can take objection against the institution of such suit.
In a suit filed before a civil court, the following conditions must prove to convince the court that res judicata applies
- The matter before the court was directly and substantially in issue before this court in a previously decided suit.
- In the suit previously instituted, the same parties were involved against each other in the same capacity as the plaintiff(s) and the defendant(s).
- The same subject matter was in dispute before the court in a suit adjudicated by the court.
- And such suit was finally heard and decided by the court.
- The court which heard the previous suit was competent to adjudicate on it.
the defendant has to prove all of the above conditions to succeed with the objection that res judicata is applies to the present suit. The court may reject the plaint if they are convinced that the objection raised by the defendant is valid.
The doctrine of res sub judice applicable (Section 10)
The doctrine of res sub judice i.e. stay on suit is a restriction on the court to not try a suit which is directly and substantially in issue in a suit already pending in any other competent court.
For example, A institutes a suit against B in court X, and A institutes a 2nd suit against B in court Y with the same subject matter, the same cause of action, same relief as asked in a suit filed in court X. Now, B can take objection in court Y and request the court to put a stay on the proceeding because another suit is already pending before court X which is directly and substantially similar to suit instituted in court Y.
The object of the doctrine is to restrict the parties to a single suit and to avoid the possibility of two contradictory judgements from same courts.
The defendant has to prove the following conditions
- The previously instituted suit must be pending before any court in India or any court beyond the limits of India established or constituted by the central government or before the supreme court of India.
- This suit pending before the court is directly and substantially in issue in another suit previously instituted.
- The court in which the suit is pending must be competent and has the jurisdiction to grant the relief sought by the plaintiff.
- Same parties are involved in the prior as well as subsequent suit.
To succeed with the objection of res sub judice, the defendant has to satisfy the court that all the above conditions are present in the suit before the court.
The objection as to no cause of action arises
When a plaintiff approaches the court, the basic presumption the court takes is that there is a cause of action because of which the plaintiff has come to the court. Cause of action can be described as a bundle of essential facts which is necessary for the plaintiff to prove the case or which gives the plaintiff the right to seek relief against the defendant.
For example, in a suit for damages due to a breach of contract, the plaintiff must state the date on which the contract was entered into and the date on which the defendant committed the breach. On the basis of these essential facts, the court will determine whether the cause of action, as claimed by the plaintiff, exists or not.
Similarly, in a suit for recovery, the plaintiff must mention the date on which the amount was owed and the date on which the defendant had to repay the amount.
The court has to decide whether the facts claimed by plaintiff to be part of the cause of action constitutes a material, essential or integral part of the cause of action.
If the defendant succeeds in convincing the court that the facts which the plaintiff is claiming to form part of the cause of action are irrelevant and that no cause of action arises against the defendant, the court may reject the plaint and dismiss the suit. (Order VII rule 11)
The objection as to the limitation period
Section 3 of the Limitation Act, 1963 provides that every suit instituted, appeal preferred, and the application made after the prescribed period shall be dismissed.
In civil law, the enforceability of the rights of a person is subject to the Limitation Act, 1963. Once the rights of a person are violated by another person, the aggrieved person should seek a remedy in the court of law as soon as possible. The limitation act is based on the following principles:
- It is in the interest of the state that there should be an end to litigation.
- The law assists the vigilant and not one who sleeps over his rights.
Therefore, the plaintiff should take action as soon as his rights are violated.
For instance, the limitation period for recovery of immovable property is 12 years, whereas, for other cases is 3 years.
The defendant can take objection if the suit filed against him is beyond the period of limitation. The objection must be taken at the earliest opportunity available to the defendant.
The objection as to non-joinder or misjoinder of the party
The plaintiff must include necessary parties and proper parties in the plaint. A necessary party is a person who is essential to the constitution of the case and without his appearance the case cannot be decreed. Whereas, a proper party is an interested party whose appearance is dispensable if the court permits. In the absence of a proper party, the court can issue effective orders. But at the time of passing of the final decree, the appearance of both, necessary party and proper party, is essential.
Plaintiff and defendant are necessary parties as they are directly related to the suit. However, a third party to the suit who has an interest in the suit but is not directly involved in it would be the proper party and not a necessary party.
If the number of the defendant is more than 1, the plaintiff can join the defendants in a single suit provided that the right to relief is arising out of the same transaction or series of acts. In that case, the defendants will jointly and severally liable.
The parties can raise an object on the following grounds:
- Right of the opposite party has not been violated by the objecting party but by some other person whose appearance is necessary to decide the suit but has not been made a party to the suit.
- Right of the opposite party has been violated by the objecting party but such violation is not forming part of the same transaction or series of acts.
For example, A gets into a contract separately with B, C, D for the supply of goods, and B, C, D fails to supply such goods. Now, A cannot join B, C & D in a single suit because he has contracted with each one of them separately. Hence, their contracts do not form part of the same transaction. If A does so, B, C & D can raise the objection of misjoinder of the party.
If the defendant has not violated rights of the plaintiff or has violated but such violation does not form part of the same transaction or series of acts, the defendant can take objection on account of misjoinder of the party and such objection should be taken at the earliest opportunity available. (Order 1 rule 13)
The objection as to misjoinder of the cause of action
In a suit, cause of actions can be joined together in a single suit or separate suits can be filed on each cause of action. The necessary condition for joinder of the cause of action is:
- The cause of actions is arising in the same act or transaction;
- The common question of fact or law is involved.
subject matters can be joined: [order II rule 3(1)]
- A plaintiff in the same suit several causes of action against the same defendants. For example, the default in loan repayment. The plaintiff can join the cause of action in such cases.
- Any plaintiffs having causes of actions in which they are jointly interested against the same defendant, For example, home buyers suit against the builder for possession of the house.
- the same defendants jointly may unite such cause of actions in the same suit.
The jurisdiction of the court after joining the cause of action depends on the aggregate subject matters at the date of instituting the suits. [order II rule 3(2)]
The defendant or co-plaintiff can take of objection if the cause of action is not arising in the same transaction or there is no common question of law involved.
Objection on pleadings
Pleadings are the contentions which the plaintiff and defendant plead to prove their case. The plaintiff states in his plaint, the facts of the case, the cause of action, the relief sought and any other detail which plaintiff things is in his favour. Similarly, defendant includes in his written statement, all the relevant facts which make his defence strong and weakens the pleadings of the plaintiff.
The whole object of pleadings is to narrow down parties into definite issues and to make the other party aware of the contention and to prevent surprise at the hearing. This allows the opposite parties to prepare the case and argue on the issues raised in the pleadings only.
The fundamental rule of pleading is that the party can only succeed on the basis of what he has pleaded and proved. Therefore, if a plaintiff attempts to prove something which is not pleaded by them, the defendant can take objection against it because such an attempt will take the defendant by surprise and will cause confusion. The objection must be taken at the earliest opportunity. T
Objection on Service of Summons
After the suit is instituted, the court issues a document to inform the defendant about the suit and instructs him/her to come and prove his case in the court. These documents are called summons.
The reason behind issuing summons is that the defendant should be given an opportunity to be heard, to come in the court and prove his side of the case. If the defendant is not served with the summons, the decision taken against him/her, will not bind him.
Consider the following situations:
- Summons not served
- summons not duly served
- summons not served on time
Summons not served
During the proceedings, if it is found that summons has not been served to the defendant because of the failure of the plaintiff to:
- pay the court fee or postal charges, or
- present the copies of the plaint (Order IX rule 7)
- apply for fresh summons within 7 days
you can take objection on such service and the court may dismiss the suit as a summons is not served.
Summons not duly served
Suppose, court issues a summon to a person but the summons is received by any person other than the person to whom service was issued, such summons is considered to be summons not duly served.
The whole object of issuing summons is to give notice to the parties an opportunity to appear before the court and present their side of the arguments but if the summons is not received by the party, the purpose of issuing a summons is not fulfilled. In such a situation, the court may consider the summons as not duly served and may issue fresh summons to the parties to give the party an opportunity to appear before the court.
You can take objection summons not served to you at the earliest opportunity available to you.
Summons not served on time
When a court issues a summon to a party to the suit and it is received by that party but it reaches after the date of his appearance or just before the date of appearance making it impossible for the party to reach the court, such summons is considered to be summons not served on time.
For example, a summon is issued to a person X which is received by him on March 20 but he was supposed to appear before the court on March 15. In such a situation, X can raise an objection as to summons not served on time.
Let’s take another example, Y resides in Mumbai and the summons are issued by a court in Delhi. Y is supposed to make an appearance before the court on March 13 and the summons reaches him on March 15. Y has no reasonable time to reach the court and make an appearance. In such circumstance, the court may note the objection on summons not served on the time taken by Y.
If an ex-parte order has been passed by the court against the defendant, such defendant can raise an objection if the summons were not duly served. Here, duly served means in accordance with the procedure established by the law.
Improper summons served
summons served to have to be proper that means it should be properly issued by the court with all the essential requisites It is essential that the summons to the party must be:0
- Signed by the judge;
- Sealed with seal of the court;
- Accompanied by a copy of plaint.
If any of the above essential are not fulfilled, you can take objection as to summons served improperly.
So, you can take objection on service of summons all of the above situations. Just keep in mind that objection should be taken at the earliest opportunity available to you.
Objection on discovery
Discovery, in general, means compelling the opposite party to produce the documents on which they are relying to prove their case. It is important for the defendant to have access to such documents to prepare a defence against the contentions of the plaintiffs. Discovery is of two kinds,
- Discovery by inspection of documents and
- Discovery by interrogatories.
A. Discovery by inspection [order XI rule 3]
A party to suit can ask the court to direct the other party to produce documents for inspection which is in possession of the other party and are relevant to the suit. This provision is important because parties have the right to inspect the documents on the basis of which the other party is proving their case. The document can be any material which is written or printed. If the court orders for the discovery of such documents, the party will be bound to make an affidavit of documents. After the affidavit is filed, the party will be required to produce the documents for inspection.
The party seeking discovery of documents have to satisfy any of the following conditions:
- It is necessary for the disposal of the suit.
- For saving cost.
The party against whom an application for discovery is filed can object to such applications on the grounds that the documents are privileged or discovery is not necessary at this stage etc. The party should show the court how and why the documents are privileged or why it is not necessary at this stage. Merely stating it be privileged is not sufficient.
B. Discovery by interrogatories [order XI rule 2]
An interrogatory is the series of question that one party asks another party to understand the nature of his opponent’s case and to get information from the other party either to support their own arguments or to destroy other party’s claim. It is also used to get the opponent to admit something which can be used against them.
The object of this provision is to save the time of the court by allowing the parties to get admission on any of the material facts which otherwise would have to be proved by evidence.
Under Order XI rule 2 (7), Any interrogatories may be set aside by the court on the ground that:
- they have been exhibited unreasonably or vexatiously or
- struck out on the ground that they are prolix, oppressive, unnecessary or scandalous
The party can take objection to interrogatory if it is irrelevant, privileged, and immaterial or asked with bad intention (Mala fide).
The objection on the valuation of the suit
The plaintiff has to calculate the value of the subject matter of the suit for the purposes of pecuniary jurisdiction of the court and to ascertain the court fees as prescribed.
Sometimes, lawyers knowingly undervalue the subject matter to file the suit in a particular court or to save the court fees. If that is the case, the defendant can voice objection against it and can request the court to reject the plaint under order 7 rule 11.
The objection on defective prayer
Prayer is an essential part of the plaint in which the relief is claimed by the plaintiff. It necessary because the court has to determine whether the reliefs claimed in the prayer can be granted by the court. The relief asked in prayer should be directly related to the subject matter, the cause of action and must be asked against the defendant(s). The relief should compensate the plaintiff for the violation of his right and not to unjustly enrich him.
If the relief sought in prayer is irrelevant to the subject matter, not asked from the defendant, or cannot be granted by the court, the defendant can raise an objection against such prayer. The court would either direct the plaintiff to amend the prayer or to withdraw the case. (Order 23 Rule 1)
The objection on plaint not duly stamped
The plaint has to be duly stamped by the oath commissioners for a nominal fee. If the plaintiff fails to get the plaint duly stamped, and the plaint is filed in the court, the defendant can take objection to it. The court will have the discretion to either give the plaintiff another opportunity or to reject the plaint and dismiss the suit.
Other technical objections
- The plaint is signed by a person not authorized by the plaintiff and the defect is not cured within the time granted by the court. (Order 7 Rule 11)
- When there is non-compliance with statutory provisions.
In civil litigation, you should be mindful of the objection that the opposite party might raise and should draft the pleading accordingly. You should not leave any loopholes in your pleadings which the opposite party might exploit at the later stage. You can use this objection to your best advantage as and when the other party tries to mislead the court or attempts to bounce a quick one at you. You should take every objection at the earliest opportunity available to you or else you will be barred from taking the same objection at later stages of the trial.