301 Civil Procedure Code

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PREFACE LL.B. Study Notes 301 Civil Procedure Code and Limitation Act ➔ Stay connected using facebook. ➔ Source : Public domain print/ internet contents. URLs of some such resources are listed herein. Credits/ copyrights duly acknowledged. ➔ 14-Nov-2017. Work in progress, version-1.3 compiled by [email protected] in academic pursuit. Follow URLs for details. Dedicated to students of the subject. No claim is made/ implied about originality of this document, or its truthfulness. ➔ Gujarat University Syllabus is in BOLD text. References to questions listed herein below, are to such questions which were asked in Gujarat University examinations. ➔ This PDF doc has navigation built-in. ie viewer shall be able to quickly move around the PDF with mouse clicks. However, sometimes due to browser limitations, click-able links may not work. In that case just download the PDF and open it in any standard PDF viewer, eg Adobe Reader. ➔ Lastly, | ्षततवदद ्षततव्षततनययगद्षततदकदस: | This doc also promotes the cause of law students. Do suggest better answers and do point-out mistakes. Or alternately, feel free to update it (for non-commercial purpose) as you deem fit. But, do keep sharing with the world. ➔ Join https://www.facebook.com/groups/LLB.GujUni/ for study notes on any LLB subject. ➔ Join धरर्मो रक्षतति र्षततकित https://www.facebook.com/groups/Dharmo.Rakshati.Rakshitah/ ✔ A happening place to discuss professional aspects of 'law' as it is actually practiced. ✔ । जय धरर कक रकद करिद हह, (धरर सस) वह सवयय र्षततकि हयिद हह । Dharma, when protected, protects. ➔ Scribd https://www.scribd.com/bhatt.net.in (repository of all study notes for LLB). This is PREFACE. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Refer : Bare acts are a good source, in any subject of law : ✔ Bare act : http://www.wipo.int/edocs/lexdocs/laws/en/in/in056en.pdf ✔ http://www.nja.nic.in/16%20CPC.pdf ✔ https://www.lawfinderlive.com/bts4/CPC.htm ✔ https://www.lawfinderlive.com/bts4/LIMITAT.htm ✔ http://www.dullb.com/Downloads/Semester3/LIMITATION_STUDY %20MATERIAL_SEM%203.pdf ✔ http://bit.ly/2vj7sgu kamkus.org course material Civil Procedure Code &Limitation law ✔ https://www.scribd.com/document/78497721/cpc-notes - Same as Hanumant notes ✔ https://www.scribd.com/doc/154007184/civil-procedure-code-1908 CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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CONTENTS 301 Civil Procedure Code and Limitation Act

Topic

Page

Module-1 Introduction, Basic Principles and Jurisdiction of the Courts. Module-2 Trial Procedure, Judgment, Suits in particular cases.

3 63

Module-3 Appeals, Review, Reference, Revision and Miscellaneous.

129

Module-4 Limitation Act.

148

Objectives of the course : ➔ Civil Procedure code is a subject daily use by the courts and lawyers and a student cannot afford to have scant knowledge of civil procedure when he goes out to practice as a lawyer. True that it is through experience one gets expert knowledge of civil procedure. However, it is necessary to have good grounding in the subject before one enters the profession. While the substantive law determines the rights of parties. Procedural law sets down the norms for enforcement. Whenever civil rights of persons are affected by action, judicial decisions will supply the omissions in the law. ➔ The Code of Civil Procedure in India has a chequered history and lays down the details of procedure for redressal of civil rights. Many questions may prop up when one goes to indicate one's civil rights. The courts where the suit is to be filed, the essential forms and procedure for institution of suit, the documents in support and against, evidence taking and trial, dimensions of an interim order, the peculiar nature of the suits, the complexities of executing a decree and provisions for appeal and revision are all matters which a lawyer for any side is to be familiar with. ➔ A delay in filing the suit, besides indicating the negligence of the plaintiff in effectively agitating the matter on time, may place courts in a precarious situation. They may not be in a position to appreciate the evidence correctly. Evidence might have been obliterated. Hence the statute of Limitation fixes a period within which a case has to be filed. ➔ Weightage of Marks : ✔ Civil Procedure Code : 80 Marks ✔ Limitation Act : 20 Marks

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Module-1

1) Introduction, Basic Principles and Jurisdiction of the Courts : 1.1) Concept, Plaint, Written Statement, Affidavit, Order, Judgment , Decree 1.2) Restitution, Execution, Decree-holder, Judgment-debter, Mesne Profits 1.3) Distinction between decree and judgment and between decree and order. 1.4) Kinds and Jurisdiction of Courts, Hierarchy of Courts : 1.4.1) Suits of Civil Nature : Scope and limits, Place of Suing, Institution of Suit

1.4.2) Parties to suit, Joinder, Non-Joinder and Mis-joinder of Parties, Representative suit, Framing of Suit, Cause of Action,

1.4.3) Res Judicata and Res Sub-judice, Foreign Judgment & its enforcement

1.4.4) Provisions relating to ADR : Settlement of the Disputes outside the courts (Sec.89) – object, purpose, background and procedure

1.4.5) Issuance of Summons GO TO CONTENTS. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 MODULE-1 QUESTIONS : ➔ Intro to the Code of Civil Procedure 1908 (CPC). ✔ Explain a suit of civil nature with illustrations and decided cases. (Nov-2011)  Explain in detail "Suit of Civil Nature” and describe the constituent elements of a civil suit. (Dec-2015)  Explain : "Suit of civil nature". Can a court try a suit without jurisdiction ? (Nov2012, Oct-2013)  Discuss : Basic principles of Civil Suit.  Discuss : Scope and limits of civil suit.  What is suit of a civil nature ? Explain in detail with illustrations and relevant cases. (Nov-2014) ➔ Explain : (i) Pleading, (ii) Suit, Plaint, (iii) Written Statement, (iv) Affidavit. ✔ State the rules relating to drafting of pleadings and the provisions relating to alteration and amendment in pleadings. In which circumstances the court will not permit to amend the pleadings ? (Dec-2015) ➔ Explain : (i) Judgment, (ii) Decree, (iii) Order. ➔ Distinguish between decree and judgment. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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➔ Write short notes : Distinguish between ‘Order’ and ‘Decree’. (Oct-2013) ➔ Explain : (i) Doctrine of Restitution, (ii) Decree-holder, (iii) Judgment-debter, (iv) Mesne Profits. ✔ Write short notes : Mesne Profits (Oct-2013) ➔ Discuss in detail : Kinds and Jurisdiction of Courts, Hierarchy of Courts . ✔ Explain : "Suit of civil nature". Can a court try a suit without jurisdiction ? (Nov2012, Oct-2013) ➔ Discuss : Kinds of suits. ✔ Write explanatory note : Interpleader Suit. (Dec-2015) ✔ Explain - "Representative Suit." (Oct-2013) ➔ Explain with decided cases the provisions of the place of suit. (Nov-2011) ✔ Explain in detail the provisions of place of the institution of suit provided in the code of civil procedure. (Apr-2016) ➔ Explain : (i) Parties to suit, (ii) Joinder of parties, (iii) Non-Joinder of parties, (iv) Mis-joinder of Parties, (v) Framing of Suit, (vi) Cause of Action. ➔ Write a detailed note on : "Stay of suits." (Nov-2012, Oct-2013) ➔ Explain in detail the doctrine of "Res Judicata' with illustration. How it differs from the principle of Estoppel ? (Dec-2015) ✔ Explain the principle of "Res-Judicata" with decided Cases. (Nov-2011) ✔ Explain Res-judicata and give two illustrations of Res-judicata. (Nov-2012) ✔ Write an eassy on : "Res-judicata". (Oct-2013) ✔ Explain in detail the principle of Res Judicata with illustrations. (Nov-2014) ✔ Explain in detail the provisions relating to the principle of “Res-Judicata” with case laws. (Apr-2016) ➔ Discuss : Foreign Judgment & its enforcement. ➔ Discuss in detail : Alternate Dispute Resolution (ADR) : Sec.89 – object, purpose, background and procedure. ➔ Discuss : Issuance of Summons. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 MODULE-1 ANSWERS : ➔ Intro to the Code of Civil Procedure 1908 (CPC). ✔ Explain a suit of civil nature with illustrations and decided cases. (Nov-2011)  Explain in detail "Suit of Civil Nature” and describe the constituent elements of a civil suit. (Dec-2015) CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Explain : "Suit of civil nature". Can a court try a suit without jurisdiction ? (Nov2012, Oct-2013)  Discuss : Basic principles of Civil Suit.  Discuss : Scope and limits of civil suit.  What is suit of a civil nature ? Explain in detail with illustrations and relevant cases. (Nov-2014) ANSWER : ✔ Refer :  https://blog.ipleaders.in/indian-civil-procedure-code/  https://blog.ipleaders.in/civil-procedure-code-quick-peak/ ✔ Intro :  The Law regulating the procedure to be followed in civil court is governed by the Civil Procedure Code and this Civil Procedure Code is one of the most important branches of the procedural law. ● Laws can be broadly classified as :  Substantive Law : The Substantive Law, whether it is based on statute law or common law, defines what facts are constituting a fact or liability. To say, in other words, the Substantive law defines various principles regarding the rights and liabilities. • Example: The Indian Penal Code, 1860 which describes various offenses punishable under Criminal acts  Procedural law or adjective law : Procedural law or adjective law, prescribes the procedure and machinery for the enforcement of those rights and liabilities. To say, in other words, the procedural law is concerned with enforcement of those rights and liabilities determined in accordance with the rules of the substantive law. • Example: The Code of Civil Procedure 1908, The Code of Criminal Procedure, 1973 etc ✔ Distinguish Civil and Criminal procedure :  In a criminal proceeding, the burden of proving that the crime was committed by the defendant lies on the prosecution. The defendant only has to ensure that the evidence brought forward is not enough to find him guilty.  In a civil proceeding, IF the plaintiff establishes that it is more likely that the offence was committed, than the burden of proof will shift to the defendant to prove his innocence. ✔ Historical Background :  Till 1859 : There was no uniform codified law for the procedures to be followed in Civil Courts. In those old days, under the British rule, there were Crown Courts in Presidency towns and Provincial Courts in Mofussils (regions of India outside the CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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three East India Company capitals of Bombay, Calcutta and Madras). ● These Courts in Mofussil areas and Presidency towns were governed by different systems of Civil procedure through various rules, regulations and special acts and those were changed on time to time basis on the basis of circumstances and needs.  1859 : For the first time in 1859, a uniform Civil Procedure Code (CPC) was introduced. But this code could not serve the purpose as this code was not made applicable to ● the Supreme Courts (Crown Courts under the Royal Charter) ● and the Sadar Diwani Adalats (Principal Courts under the Judicial Plan by the Governor General).  1861 : The Indian High Courts Act was passed and the Supreme Courts and Sadar Diwani Adalats were abolished. ● Then the Civil Procedure Code 1859 made applicable to these newly established High Courts.  1877 : The Code of 1859 was amended regularly from time to time and was replaced by passing the Civil Procedure Code, 1877.  1878, 1879, 1882 : This code of 1877 was amended in 1878 and 1879 and the third civil procedure Code was enacted in 1882.  1908 : Ultimately the present code of Civil Procedure, 1908 was passed overshadowing the defects of the Code of 1882. ✔ Meaning and Object :  The Law relating to the practices and procedure to be followed in the Civil Courts is regulated by the Code of Civil Procedure, 1908. ● The word CODE means ‘a systematic collection of statutes, body of laws so arranged as to avoid inconsistency and overlapping‘.  The main object of this civil procedure code is to consolidate and amend the laws relating to the procedure and practices followed in the Civil Courts in India.  As such, it was enshrined in the preamble of the code that it was enacted to consolidate and amend the laws relating to the procedure to be followed in the civil courts having civil jurisdiction in India.  The Civil Procedure Code regulates every action in civil courts and the parties before it till the execution of the degree and order.  The Aim of the Procedural law is to implement the principles of Substantive law . This Code ensures fair justice by enforcing the rights and liabilities. ✔ Scheme of CPC 1908 :  The Code of Civil Procedure, 1908 is effectively divided into two parts: ● (a) Part I - Body containing the principles spread in 158 Sections; and

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 The Body of the Code having 12 parts containing 158 sections. The Body of the Code lays down general principles relating to Power of the court  The Sections lay down the general principles of jurisdiction. ● (b) Part II - Schedule I containing 51 Orders along with the Rules framed there under. The Schedule provides for the procedures, methods and manners in which the jurisdiction of the court may be exercised. There were five schedules when this code was enacted. Later the Schedules II, III, IV and V were repealed by the subsequent amendments of the code.  The Orders and the Rules framed there under prescribe the method, manner and mode in which such jurisdiction is to be exercised.  The first schedule which is the only schedule to the code now has 51 orders. Each order contains rules that vary in numbers from order to order. There are eight appendices giving model formats (Forms), such as – • Pleadings (Plaint and Written Statement formats) • Process formats • Discovery, Inspection and Admission • Decrees • Execution • Supplemental Proceedings • Appeal, Reference and Reviews • Miscellaneous  Both the sections and the rules must be read together, construed harmoniously and give an interpretation towards the achievement of ultimate objective of the ‘Code’ to do justice.  Whenever there is an inconsistency felt in between the two, sections supersede and prevail.  Note : ● The various High Courts are empowered to alter or add any rules in the schedules under Section 122 to 127, 129, 130 and 131  and such new rules should not be inconsistent with the provisions of the body of the code. ● The Provisions of the Body of the code can be amended only by the legislature and the Courts can not alter or amend the body of the code. ✔ Territorial Extent and Application :  The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909. The Code is applicable to the whole country except – ● The State of Jammu and Kashmir ● The state of Nagaland and the tribal areas CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 There is also a provision that the concerned state governments may make the provisions of this code applicable to the whole or part of the State of Nagaland or such tribal areas by notification in the official gazette. ✔ Scope :  The Code is exhaustive on the matters directly dealt by it but it is comprehensive in other issues.  The framers of the code could not foresee the possible circumstances which may arise in the future litigations and could not provide the procedure for such situations. Hence the framers of the code (legislature) provided inherent powers to the court to meet such circumstances (where the code could not provide a procedure) according to the principles of natural justice, equity and good conscience.  As this Code is a general procedural law, it does not contradict with the local or special law in force. ● In the event of any conflict between the civil procedure code and the special law, the special law will prevail over the civil procedure code. In case the local or general law is silent on any matter, then the provisions of the civil procedure code will prevail. ✔ Salient Features :  CPC extends to whole of India except – (i) the State of Jammu and Kashmir, (ii) the State of Nagaland and the tribal areas  It also gives a provision that the concerned state government may extend the provisions of the Civil Procedure Code by notifying in the Official Gazette. ● The code can be extended to the whole state or any part of the state using this provision.  The Civil Procedure Code made the procedure to be followed in the Civil Courts very simple and effective. ● Enforcement of rights, liabilities and obligations of the citizens are dealt by this code. ● To say, in other words, the CPC provides the mechanism for enforcement of rights and liabilities.  The Civil Procedure Code is a general law and will not affect local or special laws which are already in force. In case of any conflict with local or special laws, the local or special law will prevail over the Civil Procedure Code. In case, if the local or special law is silent about any particular issue, then the Civil Procedure Code will apply.  The Civil Procedure Code has been amended several times to meet the needs and requirements which are dynamic and changing from time to time. ● Particularly, the Amendments of 1999 and 2002 brought in many changes to the procedure to be followed. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ Important Amendments in 2002 :  2002 amendment has been passed for amendments of Code of Civil Procedure so as ● to expedite the disposal of suits ● and to avoid time consuming complicated procedural formalities.  Some of the important amendments are : (i) Section 100-A has been added which provides that ● notwithstanding anything contained in any Letters Patents for any High Court or in any instrument having force of law or any other law, ● where any appeal from a original or appellate decree or order is heard and decided by single Judge of a High Court  no further appeal shall lie from judgment and decree of such single judge.  (ii) Section 102 has been amended which has permitted the ● filing of second appeal if subject matter of suit for recovery of money is not exceeding Rs. 2,500/-.  (iii) Amendment made in Order VII ● it is made obligatory for defendant to present his written statement within 30 days from date of service of summons to him. ● If he fails to do so, court may, for reasons to be recorded, allow him to present written statement on any other date but not later than 90 days from date of service of summons.  (iv) Amendment in Order V of Code is made ● provisions of service of summon through duly approved courier service or by fax message or electronic mail, are made.  (v) Amendment is made in Order VI Rule 17 ● now no application for amendment of pleadings shall be allowed after the trial has commenced unless court has came to conclusion that inspite of due diligence, party could not have raised the matter before the commencement of trial.  (vi) Amendment is made in Order XVIII ● provision has been made in Rule 4 for recording the examination in chief of witnesses in a suit by affidavit, copies of which will be supplied to opposite party. GO TO MODULE-1 QUESTIONS. GO TO CONTENTS. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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➔ Explain : (i) Pleading, (ii) Suit, Plaint, (iii) Written Statement, (iv) Affidavit. ✔ State the rules relating to drafting of pleadings and the provisions relating to alteration and amendment in pleadings. In which circumstances the court will not permit to amend the pleadings ? (Dec-2015) ANSWER : ✔ Refer :  https://blog.ipleaders.in/indian-civil-procedure-code/  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  https://www.lawfinderlive.com/bts4/cpc.htm ✔ (i) Pleading :  Pleadings usually contain a short statement providing the material facts on which a party relies for his claim or defence.  Meaning of pleading : ● O6 R1 provides that "Pleading" shall mean plaint or written statement. ● Pleadings are  statements in writing,  filed by each party to a case  stating what his contention will be at the trial  and giving all such details as his opponent needs to know in order to prepare his case in answer. ● Plaint and written statement are examples of pleadings.  Plaint is • the statement of claim in writing • and filed by plaintiff in which • he sets out his cause of action with all necessary particulars  Written Statement is • the statement of defence in writing and filed by defendant in which • he deals with every material facts alleged by plaintiff in the plaint • and also states any new facts which may be in his favour including legal objections.  Object of Pleadings : ● The whole object of pleadings is  to bring parties to definite issues and to diminish expense and delay and to prevent surprise at the hearing. ● In Ganesh Trading Co. v. Moji Ram, AIR 1979 SC 484 it was observed :  "Provisions relating to pleadings in civil case are meant to give to each side CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."  Contents of pleadings : ● O6 R2 provides that every pleading shall contain, and contain only,  a statement in a concise form all material facts on which the party pleading relies for his claim or defence as the case may be,  but not the evidence by which they are to be proved and shall as and when necessary be divided into paragraphs numbered consecutively.  Rules Regarding Pleadings : ● There are a few rules which the pleadings submitted must follow, and they are : (i) Pleading must state, • only concise facts and not law, • the facts should be material facts. [Order 1 rule 2]  (ii) The facts should be divided into paragraphs numbered consecutively. [Order VI Rule 2(2)]  (iii) In the pleadings, dates, sums and numbers shall be expressed in figures as well as in words. [Order VI Rule 2(3) C.P.C.]  (iv) If the party relies on any misrepresentation, fraud, breach of trust, wilful default and undue influence • they should be stated with dates and items in the pleadings. [Order VI Rule 4 C.P.C.]  (v) Any condition precedent, the performance of occurrence of which is intended to be contested, shall be distinctly specified in the pleading, • and all conditions precedent necessary, shall be implied in pleading and, therefore, such conditions need not be alleged specifically. [Order VI Rule 6 C.P.C.]  (vi) Where the contents of any document are material, • it shall be sufficient in any pleadings to state the effect thereof as briefly as possible without setting out the whole or any part thereof. [Order VI Rule 9 C.P.C.]  (vii) Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, • it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. [Order VI Rule 10 C.P.C.]  (viii) Wherever it is material to allege notice to any person of any fact, matter or thing, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• it shall be sufficient to allege such notice as a fact, unless the form of the precise term of such notice, or the circumstances from which such notice is to be inferred, are material (Order VI Rule 11 C.P.C.)  (ix) Whenever any contract or any relation between any person is to be implied from a series of letters or conversations or circumstances, • it shall be sufficient to allege such contract or relation, as a fact , and to refer generally to such letters, conversations or circumstances without setting them out in detail. [Order VI Rule 12 C.P.C.]  (x) Facts which the law presumes need not be pleaded. [Order VI Rule 13]  (xi) Legal pleas such as estoppel, limitation and res judicata may be pleaded.  (xii) Every pleading shall be signed by the party and his pleader, if any. [Order VI Rule 14 C.P.C.]  (xiii) Every pleading shall be verified at the foot by the party or by one of the parties pleadings [Order VI Rule 15 C.P.C.]  Alteration and amendment in pleadings : ● General Rule of pleadings is that all the material facts and necessary particular must be stated in the pleadings,  and adjudication of the suit cannot be based on grounds outside the pleadings. ● But many a time the party may find it necessary to amend his pleadings before or during trial of the case. ● O6 R17 : Amendments of pleadings :  The court may at any stage of 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 inspite of due diligence, the party could not have raised the matter before the commencement of trial. ● When does court deny permission to amend pleading? In following cases, court is justified in refusing to amend pleadings : (a) where the amendment is not necessary for the purpose of determining the real question in controversy.  (b) it introduces a totally different and a new and inconsistent case or changes the fundamental character of case.  (c) if it is likely to cause injustice or prejudice to other side. Where the effect CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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of proposed amendment is to take away from other side a legal right accrued in his favour by lapse of time.  (d) when leave to amend pleadings is not made in good faith. ● Supreme Court in B.K.N. Pillai v. P. Pillai, AIR 2000 SC 614 has observed: "All amendments of pleadings should be allowed which are necessary for determination of real controversy in suit provided proposed amendment does not alter or substitute new cause of action or proposed amendment should not cause such prejudice which cannot be compensated by cost" ✔ (ii) Suit, Plaint :  https://www.enotes.com/homework-help/what-difference-between-plaint-suit87887  http://www.lawyersclubindia.com/experts/plaint-suit-156176.asp  Plaint is not a term used in the US, but mostly in English law.  The plaint is a document or a set of documents submitted by the plaintiff establishing her cause of action, the maintainability of the suit, and the nature of remedy that she seeks from the court.  Definition : ORDER VII- PLAINT : ● 1. Particulars to be contained in plaint— The plaint shall contain the following particulars:—  (a) the name of the Court in which the suit is brought ;  (b) the name, description and place of residence of the plaintiff;  (c) the name, description and place of residence of the defendant, so far as they can be ascertained;  (d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;  (e) the facts constituting the cause of action and when it arose;  (f) the facts showing that the Court has jurisdiction;  (g) the relief which the plaintiff claims;  (h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and  (i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits.  A "suit" refers to a lawsuit. It is a civil action, as opposed to a criminal one.  A suit is brought by one person or group (plaintiff) ● against another (defendant), ● seeking damages for action's of the defendant.  Suit is the act, the process, or an instance of suing in a court of law; legal prosecution, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● whereas plaint is the pleadings of plaintiff on the basis of which process of suit is starts.  Plaint is a suit, ● but suit is not a plaint. Suit has wider meaning . ✔ (iii) Written Statement :  http://himanshuaroras.blogspot.in/2013/02/written-statement-order-viii-of-cpcof.html  https://blog.ipleaders.in/civil-procedure-code-quick-peak/   ● When a plaint is filed, the Court examines the charge and serves a ‘summons’ on the alleged wrongdoer, the defendant.  He must respond within a specified time limit by filing a written statement in his defense. ● There are some very important rules concerning the manner in which the statement of defence ought to be presented. This includes :  ALL the documents supporting the defence or counterclaim must be produced  Any facts that the defendant considers relevant, whether new or old, must be brought up.  The denials and assertions must be specific, clear and explicit and must not be vague.  The statement must deal with every specific allegation of fact in the plaint, and any allegation of fact that is not denied is taken to be admitted. ● Order VIII rule 3 : defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages ● Order VIII rule 4 : Where a defendant denies an allegation of fact in the plaint he must not do so evasively, but answer the point of substance.  ---> Thus, if it is alleged that he received a certain sum of money, • it shall not be sufficient to deny that he received that particular amount, • but he must deny that he received that sum or any part thereof, or else set out how much he received ● If the denial is non-specific or evasive THEN the fact shall be taken to be admitted and no other proof is needed. ● ---> It must be noted, however, that even if the defendant does not give a written statement the plaintiff will still have to prove the case. It is the Court that needs to be convinced.  CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Intro : ● In legal dictionary, the word written statement means a pleading for defence. ● The expression ‘written statement’ has not been defined in the code; ● ‘Written statement’ is a term of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff. ● ---> A written statement is the pleading of the defendant wherein  he deals with every material fact alleged by the plaintiff in his plaint  and also states any new facts in his favour  or takes legal objections against the claim of the plaintiff.  O-8 R-1 : Written Statement : ● The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. ● Provided that where the defendant fails to file the written statement within the said period of thirty days,  he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]  O-8 R-1A : ● The documents on which the defendant places reliance either for his defence, or claim for set-of or counter-claim  shall be entered in a list if those documents are in his possession.  Where any such document is not in possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is. ● This list of documents along with the document itself is required to be presented in court at the time of filing-the written statement. ● O-8 R-1A also bars and prevents the defendant from filing such documents later on except with the permission of the court.  Discussion : ● A defendant should, within 30 days from the service of summons on him, present a written statement of his defence. The said period, however, can be extended up to 90 days, but for reasons to be recorded for such extension. ● A written statement should be drafted carefully. All the general rules of pleading apply to a written statement also. ● Before proceeding to draft a written statement it is good to examine the plaint carefully. ● Like a plaintiff, a defendant may also take a number of defences, either simply or in the alternative, even though they may be inconsistent, provided they are maintainable at law and are not embarrassing. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 O-8 R-2 : New facts must be specially pleaded : ● The defendant must raise by his pleading all matters  which show that the suit not be maintainable, or that the transaction is either void or voidable in point of law,  and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise,  or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. ● The effect of O-8 R-2 is, for reasons of practice and justice and convenience,  to require the party to tell his opponent what he is coming to the court to prove. ● Therefore,  if the plea is not taken, it may lead the plaintiff to believe that the defendant has waived his right by not relying on that point.  and the defendant will not be entitled, as of right, to rely on any ground of defence which he has not taken in his written statement. ● Failure of defendant tell the plaintiff what defendant is coming to the court to prove, leaves the defendant at the mercy of the Court and the Court will deal with him as is just. ● Note that, where the defendant has stated in his pleadings all the facts on which he bases his defence without stating the legal effect thereof,  the defence cannot be rejected on the ground that the legal effect of the facts was not stated  O-8 R-3 : Denial has to be specific : ● It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.  O-8 R-4 : Evasive denial : ● Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. ● Thus, if it is alleged that he received a certain sum of money,  it shall not be sufficient to deny that he received that particular amount,  but he must deny that he received that sum or any part thereof, or else set out how much he received.  O-8 R-5 : Specific denial : ● (1) Every allegation of fact in the plaint,  if not denied specifically or by necessary implication, or stated to be not CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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admitted in the pleading of the defendant,  shall be taken to be admitted except as against a person under disability :  Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission. ● (2) Where the defendant has not filed a pleading,  it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint,  except as against a person under a disability,  but the Court may, in its discretion, require any such fact to be proved. ● (3) In exercising its discretion under the proviso to sub-rule (1) or under subrule (2),  the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. ● (4) Whenever a judgment is pronounced under this rule,  a decree shall be drawn up in accordance with such judgment  and such decree shall bear the date on which the judgment was pronounced.  Net effect of R-3 & R-5 is that, ● any allegation of fact must either be denied specifically or by a necessary implication,  or there should be at least a statement that the fact is not admitted. ● If the plea is not taken in that manner, then the allegation shall be taken to be admitted. ● Note : The rule of implied admission by 'non-traversal' has not been strictly applied to pleadings in our country.  The court has discretion to require a party to prove a particular fact, notwithstanding the implied admission thereof by the opposite party. ● Note : If the plaintiff makes only general allegations in the plaint and they are answered by defendant in equally general denials, no complaint can be made by the plaintiff on the ground that they are not specific.  Eg where the plaintiff alleges in the plaint that the order of his removal from service was violative of Articles 14 and 16 of the Constitution of India since he was arbitrarily picked up, • the denial in the written statement of the allegation that there had been a violation of Articles 14 and 16 of the Constitution of India is sufficient. ● Suit for damages : It is not necessary for a defendant, in a suit for damages, to deny specifically the damages;  it is quite sufficient if he pleads generally to the damages.  Case law : The combined effect of Rules 3, 4 and 5 has been considered by Subba CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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Rao ,J. in the case of Badat & Co. v. East India Trading Co.  Illustration-1 : In an action against a lessee to set aside the lease,  the plaintiff alleges in his plaint that the defendant offered to the manager of the plaintiff a bribe of Rs5000 at the defendant’s office on January 15, 1997;  and the defendant in his written statement states that he did not offer to the plaintiff’s manager a bribe of Rs5000 at the defendant’s office on January 15, 1997; ● Here, the denial is evasive. The point of substance is that a bribe was offered (neither the day nor the amount) and that is not met. The defendant might have offered any other amount on another day at a different place.  Since the point of substance is the offer of bribe, it must be clearly and specifically denied and the defendant should state that he never offered a bribe of Rs5000 or of any other sum, on any day, at any place, to the plaintiff’s manager as alleged or at all.  Illustration-2 : If the plaintiff asserts :  The defendant broke and entered into the shop of the plaintiff and seized, took and carried away all the furniture, stock-in-trade, and other effects which were therein. ● Then the correct traverse will be :  The defendant never broke or entered into the shop of the plaintiff  or seized, took or carried away any of the furniture, stock-in-trade, and other effects which were therein.  O-8 R-9 : Additional Written Statement : ● By plaintiff : No pleading subsequent to the written statement by a defendant other than by way of defence to a set-off shall be presented except by leave of the Court. ● By Defendent : Where a defendant intends the file additional written statement, he must file an application  showing the circumstances as to why he failed to raise the plea in the original written statement,  and the other party must be given opportunity to meet the motion. ● O-6 R-17 : Subsequent to filing of original written statement, with the leave of the Court,  a defendant can file additional written statement.  but no leave can be granted when it is inconsistent with original pleading .  O-8 R-10 : Procedure when party fails to present written statement called for by Court : ● Where any party from whom a written statement is required under rule 1 or rule CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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9 fails to present the same within the time permitted or fixed by the Court, as the case may be,  the Court shall pronounce judgment against him, • or make such order relating to the suit as it thinks fit  and on the pronouncement of such judgment a decree shall be drawn up. ● In Modula India v. Kamakshya Singh, explaining the ambit and scheme of Rules 1, 5 and 10 of Order 8, the Apex Court observed :  "Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the Court.  Under Rule 5(2), where the defendant has not filed a pleading • it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability • but the court may at its discretion require any such fact to be proved.  Again under Rule 10 when any party from whom a written statement is required • fails to present the same within the time permitted or fixed by the Court, • the Court ‘shall pronounce judgment against him • or make such order in relation to the suit as it thinks fit`.  It will be seen that these rules are only permissive in nature . They enable the Court in an appropriate case to pronounce a decree straightway on the basis of the plaint and the averments contained therein.  Though the language of Rule 10 says that the Court ‘shall’ pronounce judgment against him, • it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit.  There is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed.” ✔ (iv) Affidavit :  This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain : (i) Judgment, (ii) Decree, (iii) Order. ANSWER : ✔ Refer : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 https://blog.ipleaders.in/indian-civil-procedure-code/  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  https://blog.ipleaders.in/civil-procedure-code-quick-peak/ ✔ (i) Judgment : [Order 20]  A judgment is a state prior to the passing of a decree or an order. After pronouncement of a judgment, a decree shall follow.  Judgement means the statement given by the Judge on the grounds of a decree or order.  Sec-2(9) : Judgement : Statement given by a judge on the grounds of a decree or order. ● The judgement should have  Facts in brief  Issues for determination  Decision on the issues and  Reasons for the decision. ● Note : judgement of a small causes court need not have the above details.  Sec-2(10) : Judgement debtor : ● Any person against whom a decree has been passed or an order capable of execution has been made.  Sec-33 : ● The Court, after the case has been heard  shall pronounce judgment  and on such judgment a decree shall follow.  O20 R1 : ● After the case has been heard,  the Court shall pronounce the judgement in an open court • either at once or on some future day as may be fixed by the court for that purpose.  If judgement is not pronounced at once,  every effort shall be made by the Court to pronounce the judgement within 30 days from the date on which hearing of the case was concluded. ● But if due to unavoidable circumstances, it is not possible to do so, the Court must fix a future day which should not be a day beyond 60 days.  Effect of long delay in pronouncement of judgment : ● In Re: [Kanahaiyalal Vs. Anup Kumar], 2003, where the High Court pronounced the judgement after two years and six months,  the judgement was set aside by the Supreme Court observing that it would not CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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be proper for a court to sit tied over a matter for such a long period.  The essential element of a judgment is that, ● there should be a statement of the grounds of the decision. ● In Re: [Balraj Taneja Vs Sunil Madan], 1999, SC held that,  a Judge cannot merely say “Suit decreed” or “Suit dismissed”.  the whole process of reasoning has to be set out for deciding the case one way or the other.  O20 R6A : ● The last part of the judgment should precisely state the relief granted. ● The judgement must be dated and signed by the judge.  Alteration in Judgement : ● O20 R3 :  Any alteration or addition in judgment is permissible so long as it is not signed by the Judge in open court.  Once it is signed, no alteration or addition can be done, • except to correct clerical or arithmetical mistakes or accidental slips as contemplated under Sec-152 of Code or upon Review.  Contents of judgement : [Order 20] ● O20 R4(2) : Judgment of other Courts :  Judgments of courts, other than Small Cause Court, shall contain • (a) a concise statement of the case, • (b) the points for determination, • (c) the decision thereon and • (d) the reasons for the decision. ● O20 R4(1) : Judgment of Small Cause Courts :  Judgments of a Court of Small Causes shall not contain more than the points for determination and the decision thereon. ● O20 R5 : Reasoned Judgment :  In suits in which issues have been framed, • the court shall state its finding or decision with the reasons therefor, upon each separate issue, • unless the finding, upon any one or more of the issues, is sufficient for the decision of the suit. ● O20 R5A : Court to inform parties as to where an appeal lies :  Where both the parties are represented by pleaders, the court shall, when it pronounces its judgment in a case subject to appeal,

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• inform the parties present in court as to the court to which an appeal lies • and the period of limitation for the filling of such appeal • and place on record the information so given to the parties. ● O20 R6A(1) : Preparation of decree :  The last paragraph of the judgment shall state • in precise terms • the relief which has been granted by such judgment.  A judgment can be distinguished from a decree in the sense that a judgment means the statement given by the Judge of the grounds of a decree or order. ✔ (ii) Decree :  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  The judgement of court is followed by a decree.  A Court may pass an adjudication relating to certain matters in a suit or all the matters in the suit.  When a suit is brought to the court, ● the court takes steps to hear both sides of the dispute, ● and then after examining the evidence adjudicates upon the dispute, ● a decree is passed by the court after adjudicating upon the matter or all the matters raised in the suit; ● this decree directs the losing party to take the necessary action for the winning party.  It must be ensured that the decree is drawn up expeditiously and in any case within a period of 15 days from the date on which the judgement is pronounced.  A decree should contain the : ● (i) Number of the suit. ● (ii) Names and descriptions of the parties and their registered addresses ● (iii) Particulars of the claim ● (iv) Relief granted or other determinants of the suit. ● (v) Amount of cost incurred and by whom is to be paid.  There are basically three types of decrees : ● Preliminary decree ● Final decree ● Partly preliminary and partly final.  Sec-2(3) : Decree holder : ● A person in whose favour a decree has been passed or an order capable of execution has been passed. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Preliminary decree : ● When a Court’s adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit but does not completely dispose of the suit, it is a preliminary decree. ● A preliminary decree is passed in those cases in which the Court has  first to adjudicate upon the rights of the parties  and has then to remain inactive until it is in a position to pass a final decree. ● In the case of an appeal against a preliminary decree, the final decree automatically falls for there is no preliminary decree thereafter in support of it. ● For example, a wife sues her husband for maintenance. In the course of making a determination, the court must also decide whether she gets maintenance during the time the trial is taking place. This would amount to a preliminary decree.  Final decree : ● A decree may be said to be final in following ways,  when there has been no appeal filed against the decree  or when the matter has been decided by the highest Court,  or when the Court passing it completely disposes of the suit. ● A final decree is one which completely disposes of the suit and finally settles all the questions in controversy between the parties and nothing further remains to be decided thereafter. ● Ordinarily there will be only one final decree in the suit. However, where two or more causes of action are joined together there can be more than one final decree. ● For example, in a suit for the title of a particular property, when the court decides who has the title of the property it is the final decree in the suit.  Partly preliminary and partly final decree : ● A decree may be partly preliminary and partly final and this may be explained by way of example. ● For example, two brothers argue over who inherits the family property from their late father, which property is currently leased out to a family.  While the determination of who gets the property is the subject of the final decree, • the determination of who gets the profits that accrue from the lease rent being paid during the length of the trial, • is a matter of partly preliminary and partly final decree because, once one party gets lease rent, it will not be possible, in the event of other party winning the case, to reverse amount already given away. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● For example, Santosh and Mohan were fruit wholesalers who received a large contingent of fruits by delivery. Once there arose a dispute as to who owned the fruit contingent after it had been delivered. • A plaint was presented and the court began to look into the matter. • However, the fruits were perishables and could not have withstood the duration of the trial. • When the plaintiff pointed this out, the court ordered that the defendant must sell off the fruits, but an account of the cost and profits must be kept. • Is this a final decree by the court?  No, this is not a final decree as it does not determine the issue of the ownership of the fruits. Since that was the matter which was brought before the courts, and it has not been determined, this is not a final decree.  Ex-parte Decree : ● An ex parte decree is a decree passed in the absence of the defendant. ● Such a decree is neither null and void nor inoperative but is merely voidable. ● And until it is annulled, it has all the force of a valid decree.  Execution of a Decree : ● As per Section 38, a decree may be executed either by the court which passed it or the court to which it is sent for execution. ● While executing a decree, several questions and objections may arise as to the manner of execution. ● It would be impractical to institute new suits to resolves such matters. ● Section 47 lays down the general principal that any questions that arise in relation to the execution of the decree should be resolved in execution proceeding itself and not by a separate suit. ✔ (iii) Order :  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  https://www.lawfinderlive.com/bts4/CPC.htm  A judicial order must contain the discussion of the question at issue and the reasons which prevailed with the Court to pass the order.  Definition : Section 2(14) : ORDER : ● Order means the formal expression of any decision of civil court which is not a decree.  Thus, adjudication of a court which is not a decree, is an Order. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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➔ Distinguish between decree and judgment. ANSWER : ✔ Refer :  This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Write short notes : Distinguish between ‘Order’ and ‘Decree’. (Oct-2013) ANSWER : ✔ Refer :  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  https://www.lawfinderlive.com/bts4/CPC.htm ✔ The adjudication of court of law may either be decree or Order. ✔ The distinction may be drawn between a decree and order on the following grounds :  A decree can only be passed in the suit which commenced by the presentation of a plaint. ● An order may arise from a petition or application.  A decree conclusively determines the rights of the parties, ● an order may not finally determine such rights.  There can be a preliminary decree, ● There cannot be a preliminary order.  In certain suit one preliminary decree and the other final decree may be passed, ● a number of orders may be passed in the same suit. ✔ Every decree is appealable,  every order is not appealable, unless specified. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain : (i) Doctrine of Restitution, (ii) Decree-holder, (iii) Judgment-debter, (iv) Mesne Profits. ✔ Write short notes : Mesne Profits (Oct-2013) ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm ✔ (i) Doctrine of Restitution :  Doctrine of ‘Restitution’ is based on maxim "actus curiea neminum gravabit" CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● i.e. the act of court shall harm no one.  The expression "Restitution" means ● restoring to a party the benefit which the other party has received under a decree subsequently held to be wrong.  The principle of the doctrine of restitution is based on “Rule of Equity”.  According to the doctrine of restitution, ● in case of the reversal/ modification of a decree or order  in any suit, appeal, revision, review proceedings, ● the law imposes an obligation on the party to suit who received an unjust benefit of erroneous decree ● to make restitution to the other party for what he has lost,  Doctrine of Restitution is embodied under section 144 of CPC.  Sec-144 : ● Where and in so far as a decree or an order • is varied or reversed in any appeal, revision or other proceeding • or is set aside or modified in any suit instituted for the purpose,  the Court which passed the decree or order, • on the application of any party entitled to any benefit by way of restitution or otherwise,  shall cause such restitution to be made as will place the parties in the position which they would have occupied but for such decree or order,  and, for this purpose, the Court may make any orders, • including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, • which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.  Essentials for application of the doctrine of restitution :  (a) restitution sought must be in respect of decree or Order which has been reversed or varied.  (b) the party applying for restitution must be entitled to benefit under the reversing decree or order.  (c) the relief claimed must be properly consequential on the reversal or variation of decree or order. ● If above conditions are satisfied, the court must grant restitution.  In Kavita Rehan (Mrs.) v. Balsara Hygiene Products Ltd. AIR 1995 SC 44 it was observed : ● The jurisdiction to make restitution is inherent in every court CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 and will be exercised whenever the justice of case demands. ● It will be exercised under inherent power where the case did not strictly fall within the ambit of Section 144."  In Bhagwanti Singh v. Lala Shri Kishan Das, AIR 1953 SC 136, it was observed : ● The doctrine of Restitution is that  on reversal of a judgment  the law raises an obligation on the party (who has received the benefit of the erroneous judgment)  to make restitution to the other party for what he had lost  and it is the duty of court to enforce that obligation, unless it is shown that restitution would be clearly contrary to real justice of case. ✔ (ii) Decree-holder :  ✔ (iii) Judgment-debter :  ✔ (iv) Mesne Profits :  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  Mesne profits of property means the profits made by a person who was in wrongful possession of that property.  Whatever he has actually received or might have received, together with interest calculated on it, shall be said to be mesne profits.  However, he has the right to retain the profits gained by any improvements he has made to the property.  It is a compensation which is penal in nature because every person is entitled to possess the property and gain profit from it. ● If a person is wrongfully deprived of such property then he is entitled to the property and the profit which accrued from it.  The calculation of mesne profit is done by the Court.  Following principles guide the Court in determining the amount of mesne profit : ● No profit by a person in wrongful possession ● Restoration of status that prevailed prior to dispossession of the decree holder ● Use to which the decree holder would have put the property if he himself was in possession.  For example : ● 1. Muthanna and Ramanna have a disagreement about the ownership of a Property X and the issue was taken to Court.  Muthanna lives in a house built on this property and had rented out a room on CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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the 1st floor to tenants. He also added floors to the building and now rents out the 2nd and 3rd floor as well.  At the end of the trial, the Court decreed that the land belonged to Ramanna.  Here, • Ramanna gets the mesne profits from the rent for the 1 st floor room, • but since Muthanna added the improvements at his own cost, the profits from the 2nd and 3rd floor room rent will not be given to Ramanna. ● 2. Vandana had wrongfully usurped Poorna’s land 8 years ago and had since done extensive damage to the land, making it uncultivable.  At the legal battle that ensued, the Court held that Poorna was to get mesne profits, which included restoring her to her status before Vandana wrongfully took it from her. This means that Vandana must also pay to make the land cultivable again. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss in detail : Kinds and Jurisdiction of Courts, Hierarchy of Courts. ✔ Explain : "Suit of civil nature". Can a court try a suit without jurisdiction ? (Nov2012, Oct-2013) ANSWER : ✔ Refer :  https://blog.ipleaders.in/indian-civil-procedure-code/  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  https://blog.ipleaders.in/courts-justice-system-india/  http://www.legalservicesindia.com/article/article/jurisdiction-of-civil-court-andplace-of-suing-1780-1.html  http://www.ncib.in/pdf/judiciary-of-india.pdf  https://www.linkedin.com/pulse/hierarchy-courts-india-flow-diagram-ramanathansivakumar  https://www.hierarchystructure.com/civil-courts-hierarchy-in-india/  http://singhania.in/indian-civil-courts-system/ ✔ Intro :  The fundamental principle of English Law that “wherever there is a right, there is a remedy”, has been adopted by the Indian legal system. ● It means, whenever the rights of a person is infringed or curtailed or the person is stopped by anyone in enjoying the rights so guaranteed to him, ● there must be some judicial forum having authority to adjudicate on the matter CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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and the rights so guaranteed should be restored or compensated as per the case.  To get the rights restored or claiming compensation or damage sustained, person has to approach the appropriate forum, which has the authority to adjudicate on the matter and award the relief so sought. ✔ Meaning of jurisdiction :  Jurisdiction means the authority through which ● a court entertain suits, appeals and applications, and the court administer justice according to the provisions of the law.  Definition : Sec-9 of CPC 1908 : The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. ● Explanation I :– A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. ● Explanation II :– For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.  What is meant by ‘civil’ ? ● The word civil is not defined in the Code, however as per dictionary meaning it pertains to the private rights and remedies as distinguished from criminal and political. ● The word nature indicates the fundamental quality of a thing or person, its identity or the essential character. ● Hence, the suit of civil nature may be understood as  a suit in which the fundamental question for determination, the matters in controversy primarily relating to the private rights and obligations, not to be related to political or religious rights and obligations;  and if it is so the civil courts have the jurisdiction provided it is not expressly or impliedly barred.  In Most Rev. P.M.A. Metropolitan V. Moran Mar Marthoma, AIR 1995 SC 2001, the Supreme Court explained the concept of jurisdiction u/s 9 of CPC : ● 1. Phraseology used in the section is both positive and negative, ● 2. The earlier part opens the door widely and latter debars the entry of those which are expressly or impliedly barred. ● 3. The two explanation, one from the inception and the second added in 1976 reflects the legislative intentions. ● 4. That those religious matters in which rights of the property or the office is involved irrespective of the fact whether any fee is attached to the office or not CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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is a matter of civil nature and the civil court is competent to try such suit. ● 5. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of rights. ● 6. The word ‘shall’ makes it mandatory. ● 7. No Court can refuse to entertain a suit if it is of the description mentioned in the section. ✔ Types of jurisdiction :  While the question of jurisdiction of a court is determined, the nature of the case, the pecuniary value of the suit, and the territorial limitation of the court need to be taken into consideration.  Jurisdiction of the Civil Court may be categorized as follows : ● 1. Territorial or Local Jurisdiction ● 2. Pecuniary Jurisdiction ● 3. Jurisdiction over subject matter ● 4. Original and Appellate Jurisdiction  1. Territorial or Local Jurisdiction : ●  2. Sec-15 : Pecuniary Jurisdiction : ● Every suit shall be instituted in the Court of the lowest grade competent to try it .  The word competent to try indicate the competency of the court with respect to the pecuniary jurisdiction.  It means, the courts of lowest grade who has the jurisdiction with respect to pecuniary value shall try the suit at first. ● Pecuniary means “involving money“. Civil Courts, according to their grades, have some limitation to try suits and entertain appeals for the value of money not exceeding some stipulated amount. ● Supreme Court, High Courts and Courts of Sessions have unlimited pecuniary jurisdiction. ● Currently, Junior Civil Judges have pecuniary jurisdiction of Rs.3,00,000 and Senior Civil Judges have pecuniary jurisdiction of Rs.10,00,000. ● Now, the biggest question is, who will determine the valuation of the suit for the purpose of determining the pecuniary jurisdiction of the court.  In general, it is the valuation done by the plaintiff is considered for the purpose of determining the pecuniary jurisdiction of the court, unless the court from the very face of the suit find it incorrect.  So, if the court finds that the valuation done by the plaintiff is not correct, that is either undervalued or overvalued, • the court may require the plaintiff to prove that the valuation are proper. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• the court will direct the party to approach the appropriate forum. ● Irregular exercise of pecuniary jurisdiction : What if the Court proceeded with the matter in which it did not have the pecuniary jurisdiction?  It is a fundamental rule that a decree of a court without jurisdiction is nullity .  Halsbury rightly states : • “where by reason of any limitation imposed by statute, charter or commission, • a court is without jurisdiction to entertain any particular action or matter, • neither the acquiesce nor the express consent of the parties can confer jurisdiction upon the court • nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled.”  Definition : Sec-21 : Objections to jurisdiction : • (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court • unless such objection was taken in the Court of first instance at the earliest possible opportunity, • and in all cases where issues are settled, at (or before such settlement), • and unless there has been a consequent failure of justice.  Thus under Sec-21(2), • Party has a right to raise the issue but at the earliest possible time, • BUT, once the court has proceeded with the matter and given the decision objection as to pecuniary jurisdiction cannot be raised at the appellate stage UNLESS there is failure of justice.  ie IF in case of error in exercising pecuniary jurisdiction, • there is NO failure of justice, and a party did not take objection to such error in exercising pecuniary jurisdiction, • THEN the decision so given will not be void, but it will be considered as irregular exercise of jurisdiction.  3. Jurisdiction over the subject matter : ● There are civil courts established to try suits or cases of particular nature. ● For example,  the small causes courts can try only non-contentious cases, like suits relating to promissory notes etc.  Industrial tribunals and labor courts having jurisdiction to try suits related to industrial and labor disputes only. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Administrative tribunals are there to try only the service related matters of the Government employees. These tribunals are not courts but they have been conferred judicial powers to try the matters and enforce the orders ● Different courts have been empowered to decide different types of suits. Certain courts have no jurisdiction to entertain certain suits.  For examples, suits for testamentary succession, divorce cases, probate proceedings, insolvency matters, etc. cannot be entertained by a Court of Civil Judge (Junior Division). ● This is called jurisdiction as to subject matter . ie such courts have been allotted the subject over which the court can entertain the matter, and such courts cannot deal with the subject matters which are not within its preview. ● In case, such court takes up the matter which is not been allotted to it, that is the matter is beyond the subject matter competency. ● It is a fundamental rule that a decree of a court without jurisdiction is nullity. ● Halsbury rightly states :  “where by reason of any limitation imposed by statute, charter or commission, • a court is without jurisdiction to entertain any particular action or matter, • neither the acquiesce nor the express consent of the parties can confer jurisdiction upon the court • nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled.” ● THUS, when an error is committed by the court with respect to subject-matter jurisdiction,  the decision so given by the court is null and void as it falls within the ambit of lack of jurisdiction.  and the issue of such error can validly be raised at any stage of the proceedings, even at the appellate level as well.  4. Original and Appellate Jurisdiction : ● The Court in which the suit is filed initially and if the court has jurisdiction to try the original suits (the initial suit regarding the subject matter), such jurisdiction is called original jurisdiction. ● Once the case is decided, the aggrieved party may prefer an appeal in appropriate court. Such jurisdiction of the court to hear the appeal is called the Appellate jurisdiction. ● The Supreme Court, High Court and District Courts are having both original and appellate jurisdiction and can hear both appeals and original suits. ✔ Important principles related to jurisdiction : There are some important principles related to jurisdiction of courts. These principles are there to improve the CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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efficiency of the courts and to avoid any delay.  Res Sub-judice : Stay of suit : ●  Res Judicata : ● ✔ Hierarchy of Courts :  India is one of the biggest democracies in the world and also one country which has a complex yet effective judiciary system.  There are many different levels of judiciary in India and many different types of courts, each of which is responsible for passing jurisdiction on cases that come to them.  Each court may hear both civil and criminal cases but within each of these segments, a different hierarchical structure is followed to ensure smoothness and proper distribution of responsibilities.  There is a hierarchy of civil court in each state of India which comes under the high court of that state to administer the disputes in civil laws.  The hierarchy may differ from state to state but remains pretty much the same on a broader level.  The following is a basic nomenclature or hierarchy of civil courts in India. ● Image : “Hierarchy of Civil Courts in India – c2808f.jpg” :

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● Image : “Hierarchy of Courts in India - by geography.png” :

 Supreme Court : ● The Supreme Court is the highest judiciary body in the country and handles both civil and criminal cases. ● The verdict that it passes on civil cases is the last word and cannot be challenged any further. ● It is the highest court of appeal and comprises of the chief justice and 30 other judges  High Court : ● The next level of civil courts in India is the high court. ● There is one high court for each state in India and these courts too listen to criminal cases as well. Sometimes, a single high court listens cases from more than 1 state. ● The high courts are often considered to be the principal civil courts of original jurisdiction in each state along with district courts which come at a level lower to high courts. ● Civil cases which fall between the monetary value of over 20 lakhs are filed before the high court of each state.  District Court : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● The District Courts of India are established by the State governments in India for every district or for one or more districts together taking into account the number of cases, population distribution in the district. ● They administer justice in India at a district level. ● These courts are under administrative control of the High Court of the State to which the district concerned belongs. ● The decisions of District court are subject to the appellate jurisdiction of the concerned High court. ● The highest court in each district is the District and Sessions Court.  When it exercises its jurisdiction under Code of Civil Procedures it is called District Civil Court.  When it exercises its jurisdiction under Code of Criminal Procedure it is called Court of Sessions. ● The district court is presided over by one District and Sessions Judge appointed by the state Government. The District and Sessions Judge is often referred to as  “District Judge” when he presides over civil matters. In addition to the district judge there may be number of Additional District Judges and Assistant District Judges depending on the workload.  and “Sessions Judge” when he presides over criminal matters. ● The district judge is also called “Metropolitan session judge” when he is presiding over a district court in a city which is designated “Metropolitan area” by the state Government. ● The district court has appellate jurisdiction over all subordinate courts situated in the district on both civil and criminal matters. ● Subordinate courts, on the civil side (in ascending order) are,  Small Cause Court, Junior Civil Judge Court, Principal Junior Civil Judge Court, Senior Civil Judge Court. ● Subordinate courts, on the criminal side (in ascending order) are,  Second Class Judicial Magistrate Court, First Class Judicial Magistrate Court, Chief Judicial Magistrate Court. ● In addition ‘Family Courts” are established to deal with matrimonial disputes alone. The Principal judge of family court is equivalent to District Judge. ● Civil cases which are between the monetary value of 3 lakhs and 20 lakhs are filed before the district judges or additional district judges.  Senior Civil Judge Court : ● After the district court, the court that falls next in the hierarchy of civil courts in India is the senior civil judge court.

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● This is the court which entertains regular matters which require proper civil trial following all the rules of procedure and evidence given in the civil procedure court.  Civil Judge Court : ● This is a lower level civil court which too entertains civil matters. Civil cases which are upto a monetary value of 3 lakhs are filed before such courts.  Small Cause Court : ● This is the lowest level civil court in India and is established to adjudicate upon small cause matters like custody matters, guardianship which do not need an extended or detailed trial. Cases which are below the value of 3 lakhs are filed with this court.  Munsiff Court : ● Apart from the sub-ordinate Courts, District Munsiff Courts also form a part of this hierarchy. ● They are the lowest in order of handling matters of civil nature and function below the sub-ordinate Courts. ● Their pecuniary limits, meaning the Court's ability to hear matters upto a particular claim for money, are notified by respective State Governments.  Tribunals : ● Apart from above listed judicial bodies, Indian judiciary is also characterised by numerous semi-judicial bodies involved in dispute resolution. ● These bodies function as semi or quasi-judicial bodies because they may comprise of administrative officers or judges without a legal background. Yet they function in their judicial capacity and hear relevant legal matters and settle claims between the parties. ● Tribunals have been constituted under specific constitutional mandate enshrined in the Constitution of India or through legal enactments, eg a law passed by the legislature. ● Their creation aims at increasing efficiency in resolving disputes and reducing the burden on courts. ● Illustrations of some of these tribunals include :  Central Administrative Tribunal (CAT) for resolving the grievances and disputes of central government employees, and State Administrative Tribunals (SAT) for state government employees;  Telecom Dispute Settlement Appellate Tribunal (TDSAT) for resolving disputes in the telecom sector in India;  and the National Green Tribunal (NGT) for disputes involving environmental issues. ● Some of these tribunals function with regulators. Regulators are specialised CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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government agencies that oversee the law and order compliance in the relevant government sectors.  For example one of the tribunals TDSAT functions alongside the regulator, TRAI (Telecom Regulatory Authority of India) in formulating laws and policy for resolving telecom disputes in India. ● Thus these tribunals complement and supplement the role of courts in maintaining law and justice in the society. ●  Family Courts : ● The Family Courts in India deal with matters related to matrimonial relief which includes,  nullity of marriage, judicial separation, divorce, restitution of conjugal rights, declaration as to the validity of marriage and matrimonial status of the person, property of the spouses or any of them and declaration as to the legitimacy of any person, guardianship of a person or custody of any minor, maintenance including the proceedings under the CrPC. ● The Family Courts Act, 1984 in India was enacted on 14 September, 1984 to provide for the family courts with a view to promoting conciliation in and secure speedy settlement of disputes relating to marriage and family affairs. ● The objective was to take family and marital disputes away from the overcrowded intimidating and congested environment of traditional courts of law and bring them to congenial and sympathetic surroundings. ● The aim was 'conciliation' between the estranged family members and not 'confrontation'. ● The emphasis was on a non-adversarial method of resolving family disputes. ● The Act stipulates that a party is not entitled to be represented by a lawyer without the express permission of the Court. ● However, invariably the court grants this permission and usually it is a lawyer which represents the parties. ● The most unique aspect regarding the proceedings before the Family Court is that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, will the matter be taken up for trial by the Court. The Conciliators are professionals who are appointed by the Court. ● Once a final order is passed, the aggrieved party has an option of filing an appeal before the High Court. Such appeal is to be heard by a bench consisting of two judges. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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➔ Discuss : Kinds of suits. ✔ Write explanatory note : Interpleader Suit. (Dec-2015) ✔ Explain - "Representative Suit." (Oct-2013) ANSWER : ✔ Refer :  https://blog.ipleaders.in/indian-civil-procedure-code/  https://www.lawfinderlive.com/bts4/cpc.htm ✔ Types of suit : Following are the types of suit :  Suits by Indigent Persons  Inter-Pleader Suits  Representative Suit ✔ Suits by Indigent Persons :  An Indigent person is the one who is poor and cannot afford to pay the court fee. This kind of suits are also called as “Pauper Suits”.  When a suit is filed before a competent civil court, the party has to pay the prescribed court fee. If the suit is filed without the prescribed court fee, the suit is liable to be rejected.  Definition : ORDER XXXIII - SUITS BY INDIGENT PERSONS : ● 1 . Subject to the following provisions, any suit may be instituted by an indigent person. ● Explanation I—A person is an indigent person,—  (a) if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or  (b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees. ● Explanation II—Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. ● Explanation III—Where the plaintiff sued in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. ● 1A . Inquiry into the means of an indigent person —  Every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of the Court, unless the Court otherwise directs. ● In Moorti Shree Behari v. Premdas, AIR 1972 All. 287, held that CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 In the definition of “indigent person”, the word ‘Person’ not only refers to natural person, it is ALSO applicable to juristic person.  In some cases, the plaintiff may not be able to pay the prescribed court fee due to poverty, etc. In such circumstances, to help such persons to protect their rights, the Civil Procedure Code, 1908 has provisions under Order XXXIII to provide an exemption from the court fee. ✔ Inter-Pleader Suits :  In fact, “Inter-pleader Suits” is not defined in the Code of Civil Procedure, 1908.  ‘Inter-plead’ generally means to litigate with each other to find a solution concerning a third party.  In “Inter-pleader” suits, the dispute is not between the plaintiff and defendants. ● In fact, the plaintiff in such suits has no interest in the subject matter of the dispute. ● The dispute is between the defendants and they inter-plead against each other .  Ingredients : In “Inter-pleader” suits, ● the plaintiff must be in lawful possession of a property belonging to some other person. ● The property may be movable or immovable, ● Plaintiff must not have any interest in the property. ● There shall be two or more claimants for the property ● Plaintiff must be ready to hand over the property to the right claimant based on the decision of the court.  Illustration : ‘X’ is having lawful possession of a Gold Chain in which he has no interest. ‘Y’ and ‘Z’ are independently claiming the Gold Chain. ● In such circumstances ‘X’ sues ‘Y’ and ‘Z’ to find out the decision of the court as to the ownership of the Gold Chain. ● In such suits, defendants ‘Y’ and ‘Z’ will adversely claim and litigate. ● Plaintiff ‘X’ will be silent and be the spectator in such disputes, because the real dispute lies between the defendants in the “Inter-pleader” suits.  Procedure : ● Order 35 lays down the procedure relating to an interpleader suit. ● In every interpleader suit the plaint state that,  (i) he claims no interest in the subject-matter in dispute other than the charges or costs;  (ii) the claims are made by the defendants severally; and  (iii) there is no collusion between him and any of the defendants. ● The Court may order the plaintiff to place the thing claimed in the custody of the court and provide his costs by giving him a charge on the thing claimed. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● Where any of the defendants in an interpleader suit files a suit against the plaintiff in another court in respect of the subject-matter of the suit,  that court shall stay the proceedings. ● At the first hearing, the court may,  (i) declare that the plaintiff is discharged from all liability, or  (ii) award him his costs and dismiss him from the suit; or  (iii) if it thinks that justice or convenience so requires, retain all parties until the final disposal of the suit. ● Where the admission of the parties or other evidence enables the court to do so, it may adjudicate the title to the thing claimed. ✔ Representative Suit :  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  This kind of suit may be filed by one or more persons on behalf of others having the same interest in the suit.  Following conditions must be fulfilled in cases of representative suits : ● Parties must be numerous ● They must have the same interest in the suit ● Permission must be granted or direction must be given by the Court ● Notice must be given to the parties to be represented in the suit.  This is different from Public Interest Litigation because, ● in PIL, requirement of locus standi is more relaxed and it is not necessary for the person to have an interest in the suit if the matter in issue in the suit affects the general public. ● In representative suit, the plaintiff shall have locus standi independent of other parties. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain with decided cases the provisions of the place of suit. (Nov-2011) ✔ Explain in detail the provisions of place of the institution of suit provided in the code of civil procedure. (Apr-2016) ANSWER : ✔ Refer :  http://www.nja.nic.in/16%20CPC.pdf  http://www.legalservicesindia.com/article/article/jurisdiction-of-civil-court-andplace-of-suing-1780-1.html ✔ Outline : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Sections 15 to 20 of the CPC 1908 deal with place of suing.  Section 15 provides that every suit shall be instituted in the Court of lowest grade competent to try it.  Section 16 provides for institution of the suit where subject matters are situated.  Section 17 provides that suit shall be instituted for immovable property situate within the jurisdiction of different Courts.  Section 18 deals with the place of institution of a suit where local limits of jurisdictions of Courts are uncertain.  Section 19 provides for institution of suits for compensation for wrongs to person or movable property.  Section 20 provides for institution of the suits not covered by earlier provisions where defendants reside or cause of action arises. ✔ Source of jurisdiction :  The Court cannot derive jurisdiction apart from the Statute. No amount of waiver or consent can confer jurisdiction on the Court if it inherently lacks it or if none exists.  Conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court  And if a court having no jurisdiction passes a decree over the matter, it would amount to a nullity, as the matter by-passes the correct route of jurisdiction. ● Such an issue can be raised even at a belated stage in execution.  The finding of a court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction.  Acquiescence of parties cannot confer jurisdiction upon a court and an erroneous interpretation equally should not be permitted to perpetuate or perpetrate, defeating the legislative intention. ✔ Immovable Property : Sec- 16-18  Sec-16 : Suits to be instituted where subject-matter situate : ● Subject to the pecuniary or other limitations prescribed by any law. suits  (a) for the recovery of immovable property with or without rent or profits,  (b) for the partition of immovable property,  (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,  (d) for the determination of any other right to or interest in immovable property,  (e) for compensation for wrong to immovable property,  (f) for the recovery of movable property actually under distraint or attachment, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. ● Provided that a suit to obtain relief respecting, or compensation for wrong to immovable property  held by or on behalf of the defendant, may  where the relief sought can be entirely obtained through his personal obedience,  be instituted either in the Court within the local limits of whose jurisdiction the property is situate, • or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. ● In Sec-16, “property” means property situate in India.  Sec- 17 : Suits for immovable property situate within jurisdiction of different Courts : ● Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, ● the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate : ● Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.  Sec-18 : Place of institution of suit where local limits of jurisdiction of Courts are uncertain : ● (1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate,  any one of those Courts may, if satisfied that there is ground for the alleged uncertainty,  record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property,  and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction.  Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction. ● (2) Where a statement has not been recorded under sub-section (1),  and objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate,  the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice. ✔ Movable Property : Section 19 :  Sec-19 : Suits for compensation for wrongs to person or movables : ● Where a suit is for compensation for wrong done to the person or to movable property,  if the wrong was done within the local limits of the jurisdiction of one Court  and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court,  the suit may be instituted at the option of the plaintiff in either of the said Courts.  Illustrations :● (a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi. ● (b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi. ✔ Other Suits : Section 20  Sec-20 : Other suits to be instituted where defendants reside or cause of action arises : ● Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction● (a) the defendant, or each of the defendants where there are more than one,  at the time of the commencement of the suit,  actually and voluntarily resides, or carries on business, or personally works for gain; or ● (b) any of the defendants, where there are more than one,  at the time of the commencement of the suit  actually and voluntarily resides, or carries on business, or personally works for gain,  provided that in such case either the leave of the Court is given, • or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, • acquiesce in such institution; or ● (c) the cause of action, wholly or in part, arises. ● Explanation : A corporation shall be deemed to carry on business at its sole or principal office in India or,  in respect of any cause of action arising at any place where it has also a subordinate office, at such place. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Illustrations :● (a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta.  A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business. ● (b) A resides at Shimla, B at Calcutta and C at Delhi A, B and C being together at Banaras, B and C make a joint promissory note payable on demand, and deliver it to A.  A may sue B and C at Banaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides;  but in each of these cases, if the non-resident defendant object, the suit cannot proceed without the leave of the Court. ✔ Irregular exercise of territorial jurisdiction : What if the Court proceeded with the matter in which it did not have the territorial jurisdiction?  It is a fundamental rule that a decree of a court without jurisdiction is nullity .  Halsbury rightly states : ● “where by reason of any limitation imposed by statute, charter or commission,  a court is without jurisdiction to entertain any particular action or matter,  neither the acquiesce nor the express consent of the parties can confer jurisdiction upon the court  nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled.”  Definition : Sec-21 : Objections to jurisdiction : ● (1) No objection as to the place of suing shall be allowed by any appellate or Revisional Court  unless such objection was taken in the Court of first instance at the earliest possible opportunity • and in all cases where issues are settled at (or before such settlement),  and unless there has been a consequent failure of justice. ● (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court  unless such objection was taken in the executing Court at the earliest possible opportunity,  and unless there has been a consequent failure of justice.  Definition : Sec-21-A : Bar on suit to set aside decree on objection as to place of suing CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title,  on any ground based on an objection as to the place of suing. ● Explanation : The expression "former suit" means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned.  Thus, ● Party has a right to raise the issue but at the earliest possible time, ● BUT, once the court has proceeded with the matter and given the decision objection as to territorial jurisdiction cannot be raised at the appellate stage UNLESS there is failure of justice.  ie IF in case of error in exercising territorial jurisdiction, ● there is NO failure of justice, and a party did not take objection to such error in exercising territorial jurisdiction, ● THEN the decision so given will not be void, but it will be considered as irregular exercise of jurisdiction. ✔ Summary :  When a suit is related to immovable property : ● the court within whose local jurisdiction property is situated have the jurisdiction to try the matter. ● In case when a part of the property is situated in the local limit of the other courts as well, I mean when the property is situated in more than one territorial limits of the courts  than in that case the courts in whose territorial limit any portion of the property is situated have the jurisdiction  and in such situation it is the plaintiff who will decide which court to approach. ● In case it is not possible to say with certainty that the property is situated within the jurisdiction of the one or the other of several courts,  in such case one of these several courts, if it is satisfied that there is such uncertainty, may after recording a statement to that effect proceed to entertain and dispose of the suit.  When suit is related to movable property : ● As we know movable property follow the person ● and hence suit may be brought at the option of the plaintiff either at the place where the wrong is committed or where the defendant resides, carries on business or personally works for gain.

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● Where such wrongs consists of series of acts,  a suit may be filed at any place where any of the acts has been committed. ● Similarly, where a wrongful act is committed at one place and the consequence ensue at another place,  a suit may be instituted at the option of the plaintiff where the action took place or the consequences ensued.  A suit for compensation for wrong (tort) to a person ● may be instituted at the option of the plaintiff either where such wrong is committed, or where defendant resides, carries on business or personally works for gain.  Section 20 provides for all other cases not covered under any of the foregoing rules. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain : (i) Parties to suit, (ii) Joinder of parties, (iii) Non-Joinder of parties, (iv) Mis-joinder of Parties, (v) Framing of Suit, (vi) Cause of Action. ANSWER : ✔ Refer :  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  https://www.lawfinderlive.com/bts4/cpc.htm ✔ (i) Parties to suit :  When a person has some dispute against another person he could move a civil suit before a Court of Law.  Here the persons in dispute are the parties to the suit.  Thus the parties are necessary element in a civil suit.  In Civil Procedure generally there are two parties viz. the plaintiff and the defendant. There may also be third parties who come incidentally to a suit.  The Plaintiff : ● A plaintiff is the one who moves a suit by filing a plaint. ● So he must have a claim against another in law. ● He must be one who is competent to sue. ● He must have the legal right and locus standi to file the suit. ● Order 1 Rule 1 of CPC explains who may be joined as plaintiffs.  The Defendant : ● A person who defends allegations and claims made against him is called the defendant. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● He must be competent to be sued. ● Order 1 Rule 3 of CPC explains who all may be joined as defendants.  Third Party : ● All parties who are interested in the suit or its outcome can file applications in a Court of Law to add them as parties, either plaintiff or defendant. ● The defendant can also file application to join another person as defendant who shares the liability.  Definition : ORDER I-PARTIES OF SUITS : ● 1. Who may be joined as plaintiffs— All persons may be joined in one suit as plaintiffs where—  (a) any right to relief in respect of, or arising out of, • the same act or transaction or series of acts or transactions • is alleged to exist in such persons, whether jointly, severally or in the alternative; and  (b) if such persons brought separate suits, any common question of law or fact would arise. ● 2. Power of Court to order separate trial— Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient. ● 3. Who may be joined as defendants— All persons may be joined in one suit as defendants where—  (a) any right to relief in respect of, or arising out of, • the same act or transaction or series of acts or transactions • is alleged to exist against such persons, whether jointly, severally or in the alternative; and  (b) if separate suits were brought against such persons, any common question of law or fact would arise. ● 3A. Power to order separate trials — Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.  Legal Representative : ● “Legal Representative” means a person who in law, and for legal purposes represents the estate of a deceased person. ● This may include any person who intermediates with the estate of the deceased; any person who acquires the land through the laws of succession due to the death of a party involved in a suit will also be the ‘legal representative’ for the CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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purpose of the law. ● For example, Jeevan was fighting a case in the court over the title of a residential property. He died during the time the suit was still pending. In his Will, he had left the property to his wife.  Here his wife is Jeevan’s Legal Representative. ✔ (ii) Joinder of parties :  The question of joinder of parties may arise either as regards the plaintiffs or as regards the defendants.  Order 1 deals with the subject of parties to suit and inter alia (amongst other things) with ● the joinder, misjoinder and non-joinder of parties ● and to some extent with the joinder of cause of action.  Joinder of plaintiffs (O1 R1) ● All persons may be joined in one suit as plaintiffs where  (a) any right to relief in respect of the same act, or transaction, • is alleged to exist in such persons whether jointly or severally; and  (b) if such persons brought separate suits, • any common question of law or fact would arise. ● Eg ‘A’ enters into an agreement jointly with B and C to sell 100 tins of oil. A thereafter refuses to deliver the goods.  Here both, B and C have each of them a right to recover damages from A.  The said right arises out of the same transaction, namely, • the breach of agreement; • and common questions of law and fact would also arise.  B and C, therefore, may file a suit jointly as plaintiffs against A for damages. ● Separate trials (Rule 2) :  Where it appears to the court that any joinder of plaintiff may embarrass or delay the trial of the suit, the court may, • put the plaintiffs to their election • or order separate trials • or make such other order as may be expedient.  Joinder of defendants (O1 R3) : ● All persons may be joined in one suit as defendants where  (a) any right to relief in respect of the same act or transaction, • is alleged to exist against such persons, whether jointly, severally; and  (b) if separate suits were brought against such persons, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• any common question of law or fact would arise. ✔ (iii) Non-Joinder of parties and Mis-joinder of Parties :  O1 R9 : ● "No suit shall be defeated by reason of the mis-joinder or non-joinder of parties,  "Necessary party" and "Proper party" : ● “Necessary party” is one whose presence is indispensable for proceeding with the suit and for final decision thereof. ● "Proper party" is one in whose absence an effective order can be passed, but whose presence is necessary for complete and final decision of suit.  Non-joinder : ● Where a person who is necessary or proper party to a suit has not been joined as a party to suit, it is a case of non-joinder.  Mis-joinder : ● In legal procedure (both civil and criminal),  misjoinder refers to a wrongful joinder. ● Misjoinder of parties means,  joining as plaintiffs or defendants persons who have conflicting interests, or who were not involved in the same transaction or event.  presence of a party who is unwanted or unnecessary to the proceedings . ● Definition :  If, • (i) two or more persons are joined as plaintiffs or defendants in a suit in contravention of Order 1 rule 1 and 3, and • (ii) they are neither necessary nor proper party,  it is a case of mis-joinder of parties. ● To avoid such misjoinder, two factors are essential, viz.  The right to relief must arise out of the same act or transaction.  There must be a common question of law or fact.  O1 R13 : ● All objections on the ground of non-joinder or misjoinder of parties,  shall be taken at the earliest possible opportunity. ✔ Misjoinder of Causes of Action :  O2 R3 provides that, ● a plaintiff may unite in the same suit,  several causes of action,  against the same defendant, or the same defendants jointly, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● and any plaintiffs having  cause of action in which they are jointly interested  against the same defendant or the same defendants jointly ● may unite such causes of action in the same suit.  Therefore, if the plaintiffs are not jointly interested against the same defendant or defendants jointly, then, there is a misjoinder of causes of action.  O2 R7 : ● all objections regarding misjoinder of causes of action shall be taken at the first hearing of the suit  i.e., at the earliest opportunity at or before settlement of issue, ✔ (v) Framing of Suit :  ✔ (vi) Cause of Action :  Cause of action as understood in the civil proceedings means “bundle of facts which taken with law applicable to them, gives the plaintiffs a right to relief against the defendant”.  The cause of action must be antecedent to the institution of suit.  Misjoinder of Causes of Action : ● Misjoinder of causes of action consists in joining several demands in one declaration which the law does not permit to be joined, to enforce substantive rights of recovery, that are distinct and contradictory. ● Under CPC, only related counts can be put together in a cause of action. ● Example – for theft, the thief and people helping the thief can be p part of a joint suit for the cause of action of theft. But a claim of theft and the claim that his passport is invalid cannot be joined together and heard in the same suit.  This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Write a detailed note on : "Stay of suits." (Nov-2012, Oct-2013) ANSWER : ✔ Refer :  https://blog.ipleaders.in/civil-procedure-code-quick-peak/ ✔ Intro : Res Sub-judice : Stay of suit :  ‘Res‘ means “a matter“. ‘Sub-judice‘ means “pending judicial inquiry“. The expression ‘Res Sub-judice’ means “a matter which is pending judicial enquiry”.  A suit is stayed when another suit CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● directly or substantially regarding the same subject matter ● and involving the same parties, or under the same title ● has already been instituted in any other Court in the country.  This is done in order to prevent conflicting judgements and to save on precious time.  There are some suits that are barred from being filed in a Court, for reasons other than the Court’s lack of jurisdiction. ✔ CPC Provision :  According to Sec-10 of CPC 1908, which is based on the principle “Res Sub-Judice”, ● when a suit is pending before a competent court, between the same parties and under the same title then, no other court in India should entertain and try such suits.  Definition : Sec-10 : Stay of suit :

● No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, under the same title  where such suit is pending in the same or any other Court in having jurisdiction to grant the relief claimed,  or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction,  or before the Supreme Court. ● Explanation : The pendency of a suit in a foreign Court does not preclude the Courts from trying a suit founded on the same cause of action.  The object of Section 10 is to prevent the courts from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief.  Here, the policy of the law is to confine the plaintiff to one litigation process , thus negating the possibility of two contradictory verdicts on the same matter.  It intends to protect the person from multiplicity of proceedings and avoid a conflict of decisions. ✔ Essential Conditions of Res sub-judice : For applicability of Res sub-judice the following conditions must be present : ● 1. The matter in issue and in subsequent suit must be the same, which is directly and substantially in issue in previously instituted suit. ● 2. The previously instituted suit must be pending in the same Court or in any other Court ● 3. The previously instituted suit must be pending in a competent Court of civil jurisdiction.

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● 4. The parties in both the suits must be the same.  If these conditions are fulfilled, the later suit shall be stayed till the disposal of earlier suit, the findings of which operate as res judicata on the later suit. The principles of resjudicata are given in section 11. ✔ Example :  Kumar instituted a suit against Akshara for divorce on grounds of mental cruelty. Thereafter, Akshara filed a suit against Kumar at the same time for custody of their child. ● Here, the subsequent suit is not barred by sub judice because it is not the same subject matter being adjudicated upon in the second suit.  Trina instituted a suit against Munni for recovery of some property. While the suit was still pending in court, Trina instituted another suit against Munni for the profits from the property during the pendency of the suit. ● Here, the subsequent suit is barred by sub judice as it relates to the same property.  Dutta filed a suit against his brother-in-law, Gupta, for his share in the family property after a relative died intestate. At the same time, Gupta wanted to file a suit over the splitting of the family business between them. ● Here, the second suit is not barred because the matter in the subsequent suit is not directly and substantially in issue in the previous suit.  There was a suit (Bhopal Gas) pending before the US Federal Court over the compensation amount for victims of a disaster caused by an American company in India. ● This does not bar a similar suit from being instituted in any court in India at the same time, as long as the Indian court has jurisdiction.  The victims of a road accident filed a suit against the insurance company to get the insurance money for the damaged vehicle. At the same time, a suit for compensation was instituted against the owners of the vehicle that caused the accident. ● Here, the second suit is not barred by the first suit as they do not concern the same two parties.  A gives Y, an aspiring builder, a promissory note stating that he will pay him Rs 1,25,000 at the end of one year to invest in his building business. Y enters into contracts with architects and agents to help his business grow. At the end of the year, Y does not receive the money and falls short of the payment of Rs. 1,25,000 he needs to make to an architect X. X sues Y. Y, in turn, sues A. A asks for a stay on the suit as another suit is already pending in Court regarding the same subject matter. ● Suit not barred. A does not have a valid application for stay of suit because  the rights and obligations arise out of two distinct, separate contracts. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 The parties in both the cases are not the same. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain in detail the doctrine of "Res Judicata' with illustration. How it differs from the principle of Estoppel ? (Dec-2015) ✔ Explain the principle of "Res-Judicata" with decided Cases. (Nov-2011) ✔ Explain Res-judicata and give two illustrations of Res-judicata. (Nov-2012) ✔ Write an eassy on : "Res-judicata". (Oct-2013) ✔ Explain in detail the principle of Res Judicata with illustrations. (Nov-2014) ✔ Explain in detail the provisions relating to the principle of “Res-Judicata” with case laws. (Apr-2016) ANSWER : ✔ Refer :  http://allqanons.blogspot.in/2015/12/cpc-notes.html  https://blog.ipleaders.in/civil-procedure-code-quick-peak/ ✔ Res judicata :  Intro : ● The “Nemo Debet Bis Vexari Pro Una Et Eadem Causa” means no one should be vexed twice for the same cause. ● This maxim is popularly known as the doctrine of res judicata. ● Doctrine of res judicata, which is a Latin term, is embodied in section 11 of the Civil procedure Code aiming to give finality to litigation.  This doctrine was recognized much earlier in the Hindu Jurisprudence as prang– nyaya in the Brihaspati Smriti by providing that if a person who has been defeated in a suit according to law, files his plaint once again, he must be told that he has been defeated already.  The rule intended to prevent new investigation as well as harassment of the other party again and again in various litigations on the same cause.  The doctrine is based on the two grounds, 1) public policy, and 2) hardship to an individual. The doctrine is founded on justice, equity and good conscience.  The principle of res judicata does not oust jurisdiction or cognizability of Civil Court but it bars retrial to decide once again a matter which is concluded.  Definition : Sec-11 : Res judicata : ● No Court shall try any suit or issue in which  the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties litigating under CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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the same title,  in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised'  and has been heard and finally decided by such Court.  Thus, Sec-11 of CPC provides that no Court shall try any suit or issue, that has already been adjudicated upon in a previous suit.  Here, the policy of the law is to avoid any suit or issue which has already been adjudicated.  Section 11 also contains 6 explanations to clarify the principle of res judicata.  Ingredients to constitute res judicata :- The following conditions must remain present to constitute a matter res judicata :● 1. There must be two suits, one previously instituted and the other subsequently instituted, ● 2. Identity of matter in issue : The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue, either actually or constructively, in the former suit. ● 3. Identity of Parties : The former suit must have been between the same parties or between the parties under whom the parties of subsequent suit or any of them claim. ● 4. Same title : In the former suit, the parties must have litigated under the same title as like that of the subsequent suit. ● 5. Concurrence of Jurisdiction : The Court which have decided the former suit must have been a Court which is competent to try the subsequent suit. ● 6. Final decision : The matter which is directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit.  Any relief claimed in the plaint, which is not expressly granted by the decree, is, for the purposes of this section, to be deemed to have been refused.  Constructive Res Judicata : ● According to this principle, Res Judicata will be applicable if the matter in controversy might and ought to have been raised in the previous suit. ● The same person cannot take a conflicting position in a subsequent suit. He is barred from doing so by constructive Res Judicata. ● For example : In a case on revenue matters, Malik had taken the plea that he was not a tenant on the suit land.  Therefore, in any subsequent suit by a mortgagor for selling the property, it is not open for him to take up the plea that he was living on the land as a permanent tenant.  Erroneous decision : Even an erroneous decision on a question of law attracts the CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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doctrine of res judicata between the parties to it. ● The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata.  (Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors., AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65). ● The apex Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr., AIR 1960 SC 941 explained the scope of principle of res-judicata observing as under :  “7. The principle of res judicata is based on the need of giving a finality to judicial decisions.  What it says is that once a res is judicata, it shall not be adjudged again.  When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, • either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, • neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.  Exceptions to Res Judicata : Exceptions to the rule of Res Judicata ● (i) When judgment is passed without jurisdiction  Fatima Bibi Ahmed Patel v. State of Gujarat (2008) 6 SCC 789. Supreme Court held that the principle of Res Judicata does not apply to criminal cases. Where the entire proceedings have been initiated illegally and without jurisdiction. ● (ii) When matter involves a pure question of law. ● (iii) When judgment has been obtained by committing fraud on the Court.  The principle of res judicata would not apply if the decree has been obtained by practicing misrepresentation or fraud on the court, • or where the proceedings had been taken all together under a special Statute.  More so, every finding in the earlier judgment would not operate as res judicata. Only an issue “directly” and “substantially”, decided in the earlier suit, would operate as res judicata.  Where the decision has not been given on merit, it would not operate in case against the judgment and decree of the court below the appeal is pending in the appellate court, the judgment of the court below cannot be ✔ Differences Between ‘Res Sub Judice’ and ‘Res Judicata’ :  The main spirit behind BOTH these principles is that no person should be called in question twice for the same cause of action.

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 However, following are difference between the two : Res Sub Judice

Res Judicata

Contained in Section 10 of C.P.C.

Contained in Section 11 of C.P.C.

Relates to a matter which is pending in Relates to a matter adjudicated upon a court of law.

or a matter on which judgement has been pronounced.

It bars the trial of a suit in which the

It bars the trial of a suit of an issue in

matter directly or substantially is

which the matter directly and

pending adjudication in a previous suit substantially in issue has already been adjudicated upon in a previous suit between the same parties under the same title. Res-subjudice prohibits proceedings of

Res-judicata prohibits second trial of

two parallel suits between same

the same dispute between same

parties

parties

✔ Estoppel :  ✔ Differences between Res judicata and Estoppel :  Some jurists have sometimes said that the res judicata is a part of the doctrine of estoppel.  But the doctrine of res judicata and the doctrine of estoppel essentially differ from each other.  Estoppel is the doctrine of law of evidence and prevents any party from blowing hot and cold at different occasions according to his sweet will. ● On the other hand, res judicata prevents a person from harassing other by successive litigations on the same cause.  The points of difference may be better explained by the following tabular form. Res judicata 1

Estoppel

The principle of res judicata is a

On the other hand , the principle of

part of law of procedure and is

estoppel is a part of law of Evidence and

founded on the ground of public

founded on the principle of equity that one

policy that there should be an end

should not be permitted to say different

to the litigation. It is contained in

things at different occasions. It is

section 11 of CPC.

contained in section 115 of the Indian Evidence Act .

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Res judicata 2

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Estoppel

The Doctrine of res judicata is the

Whereas doctrine of estoppel is the result

result of a decision of a Court of

of the act of parties

law. 3

4

Res judicata ousts the jurisdiction

Whereas estoppel is only a rule of

of Court and prohibits the Court

evidence and prohibits a party from

from trying any matter or issue

proving a different fact, other than what

already finally decided.

he stated earlier, by adducing evidence.

The truth of the former decision is The rule of estoppel prevents a person conclusively pre-supposed by the

from denying what he once induced

plea of res judicata.

another to believe to be true and to act upon it.

5

Res judicata binds both the parties Estoppel binds only that party who made to a litigation.

6

the previous statement.

The doctrine of res judicata aims at The doctrine of estoppel aims at keeping a bringing an end to the litigation.

party at only one point what he stated to be true and induced another to act upon such belief.

7

Res judicata prevents a person

On the other hand, estoppel shuts the

from agitating the same cause in

mouth of a person to speak hot and cold

successive litigations.

at different occasions.

This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Foreign Judgment & its enforcement. ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm  http://www.legalservicesindia.com/articles/fore.htm  ✔ What is meant by “foreign judgment”?  Section 2(5) of CPC defins "Foreign Court" as ● a court situated outside India and not established or continued by the authority of the Central Government.  Section 2(6) says "Foreign Judgement" means ● a judgment of a foreign Court.  In other words, a foreign judgment means adjudication by a foreign court upon a CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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matter before it.  Thus judgments delivered by courts in England, France, Germany, USA, etc. are foreign judgments.  Dicey rightly states : "A foreign judgment is conclusive as to any matter thereby adjudicated upon and can not be impeached for any error either ● (1) Of fact; or ● (2) Of law" ✔ Res judicata and Private International Law :  Sections 13 and 14 enact a rule of res judicata in case of foreign judgments.  These provisions embody the principle of private international law that ● a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian court ● and will operate as res judicata between the parties thereto except in the cases mentioned in Section 13.  Nature And Scope of Sec. 13, CPC : ● A foreign judgment may operate as res judicata except in the six cases specified in the section 13 and subject to the other conditions mentioned in Sec. 11 of CPC. ● The rules laid down in this section are rules of substantive law and not merely of procedure. ● The fact that the foreign judgment may fail to show that every separate issue, such as, the status of the contracting parties, or the measure of damages, was separately framed and decided, is irrelevant  unless it can be shown that failure brings the case within the purview of one of the exceptions to Section 13. ✔ Object of Sec-13 and Sec-14 :  The judgment of a foreign court is enforced on the principle that where a court of competent jurisdiction has adjudicated upon a claim, ● a legal obligation arises to satisfy that claim.  The rules of private international law of each State may differ, but by the comity of nations certain rules are recognized as common to civilized jurisdictions.  Such recognition is accorded not as an act of courtesy but on considerations of justice, equity and good conscience.  An awareness of foreign law in a parallel jurisdiction would be a useful guideline in determining our notions of justice and public policy.  We are sovereign within our territory but "it is no derogation of sovereignty to take account of foreign law".  As has been rightly observed by a great jurist : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● we shall not brush aside foreign judicial process unless doing so "would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal." ✔ Jurisdiction to Foreign Courts : The following circumstances would give jurisdiction to foreign courts :  1. Where the person is a subject of the foreign country in which the judgment has been obtained;  2. Where he was a resident in the foreign country when the action was commenced and the summons was served on him;  3. Where the person in the character of plaintiff selects the foreign court as the forum for taking action in which forum he issued later;  4. Where the party on summons voluntarily appeared; and  5. Where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained. ✔ Binding Nature of Foreign Judgments :  The Code of Civil Procedure provides that 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 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 proceeding 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 proceeding in which the judgment was obtained or opposed to natural justice; ● e) Where it has been obtained by fraud; ● f) Where it sustains a claim founded on a breach of any law in force in India  In other words, a foreign judgment is not conclusive as to any matter directly adjudicated upon, IF one of the conditions specified in clauses (a) to (f) of section 13 is satisfied and it will then be open to a collateral attack. ✔ Presumption as to Foreign Judgments : Section 14  Sec-14 of the Code declares that 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 of competent jurisdiction, unless the contrary appears on the record, or is proved.  However, if for admissibility of such copy any further condition is required to be CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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fulfilled, it can be admitted in evidence only if that condition is satisfied.  In Narsimha Rao v. Venkata Lakshmi, the Supreme Court held that ● mere production of a Photostat copy of a decree of a foreign court is not sufficient. ● It is required to be certified by a representative of the Central Government in America. ✔ Submission to jurisdiction of Foreign Court :  It is well established that one of the principles on which foreign courts are recognized to be internationally competent is voluntary submission of the party to the jurisdiction of such foreign court.  The reason behind this principle is that having taken a chance of judgment in his favor by submitting to the jurisdiction of the court, ● it is not open to the party to turn round when the judgment is against him and to contend that the court had no jurisdiction.  Submission to jurisdiction of a foreign court may be express or implied.  Whether the defendant has or has not submitted to the jurisdiction of a foreign court is a question of fact, which must be decided in the light of the facts, and circumstances of each case. ✔ Conclusiveness of Foreign Judgment :  A foreign judgment is conclusive and will operate as res judicata between the parties and privies though not strangers.  It is firmly established that a foreign judgment can be examined from the point of view of competence but not of errors.  In considering whether a judgment of a foreign court is conclusive, the courts in India will not require whether conclusions recorded by a foreign court are correct or findings otherwise tenable.  In other words, the court cannot go into the merits of the original claim and it shall be conclusive as to any matter thereby directly adjudicated upon between the same parties subject to the exception enumerated in clauses (a) to (f) of Section 13. ✔ Enforcement of Foreign Judgments : A foreign judgment, which is conclusive under Section 13 of the Code, can be enforced in India in the following ways :  1. By instituting a suit on such foreign judgment : ● A foreign judgment may be enforced by instituting a suit on such foreign judgment. ● The general principle of law is that any decision by a foreign court, tribunal or 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 CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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shall be conclusive as to any mater thereby directly adjudicated upon between the same parties. ● Such a suit must be filed within a period of three years from the date of the judgment.  2. Execution Proceedings : ● A foreign judgment may also be enforced by proceedings in execution in certain specified cases mentioned in Section 44-A of the Code. ● The said section provides that where a certified copy of a decree if 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. ● When a foreign judgment is sought to be executed under Section 44-A, it will be open to the judgment-debtor to rake all objections, which would have been open to him under Section 13 if a suit had been filed on such judgment. ● The fact that out of six exceptions there has been due compliance with some of the exceptions is of no avail.  The decree can be executed under Section 44-A only if all the conditions of Section 13 (a) to (f) are satisfied. ✔ Foreign Awards :  It is not open to the party, who is party to the award, to contend that the award was not given on merits of the case.  However, if the award was given against the rules of natural justice or it was fraudulently obtained, ● the party may not be prevented from putting forward those contentions.  But it is difficult to accept the view that because on a foreign judgment it is open to a party to contend that it was not given on the merits of the case, ● it is equally open to a party who is resisting the suit on the award to contend that the award was not given on the merits of the case.  Only if the award given in a foreign country is reinforced by a decree of the Court of that country the courts will be bound to take notice of it. ● But without such a decree reinforcing such award, the award must be deemed to be non-existent. ✔ Conclusion :  A foreign judgment would be conclusive as to any matter thereby directly adjudicated upon between the same parties.  Hence we can conclude that a judgment of a foreign Court creates estoppel or res judicata between the same parties, ● provided such judgment is not subject to attack under any of the clauses (a) to (f) of Section 13 of the Code. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 If any claim is made by any party and subsequently abandoned at the trial of a suit and if the decree in that suit necessarily implies that claim has not met with acceptance at the hands of the court, then the court must be deemed to have directly adjudicated against it. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss in detail : Alternate Dispute Resolution (ADR) : Sec.89 – object, purpose, background and procedure. ANSWER : ✔ Refer :  This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Issuance of Summons. ANSWER : ✔ Refer :  Read from “Trial Procedure and, Judgment” in Module-2. This is Module-1. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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Module-2

2) Trial Procedure, Judgment, Suits in particular cases : 2.1) Appearance of parties, Ex-parte procedure, Effect of Death, Marriage & Insolvency of Parties

2.2) Attendance of witnesses, Adjournments, Set off and Counter Claims, Discovery, Inspection & Production of Documents

2.3) Trial procedure, Interim orders: Commission, arrest or attachment before judgment, injunction and appointment of receiver, Interest and costs

2.4) Suits in particular cases : 2.4.1) Suits by or against Government/Public Officers (Sec. 79-82) 2.4.2) Suits by aliens and by or against foreign rules or ambassadors (ss8387A)

2.4.3) Suits relating to Public nuisance (ss 91-93) 2.4.4) Suits by or against firm 2.4.5) Suit by Indignant persons(O. 33), Suit of Mortgage 2.4.6) Interpleader suits 2.4.7) Suits relating to public charities 2.4.8) Summary Suits and other special suits 2.5) Execution: Concept, General Principles, Procedure & Powers Execution of Decree (Sec.52-54)

2.6) Enforcement, arrest and Detention (Sec. 55-59), Attachment (Sec. 60-64), Sale (Sec.65-97), Delivery of Property, Stay of Execution GO TO CONTENTS. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 MODULE-2 QUESTIONS : ➔ Discuss in detail : Trial Procedure and, Judgment. ✔ Explain the provisions regarding appearance of parties and consequences of nonappearance of parties. (Nov-2012) ✔ Explain in detail the provisions and consequences of appearance and nonappearance of parties to a suit with case laws. (Apr-2016) ✔ Discuss : Ex-parte procedure. ✔ Explain : Arrest and attachment before judgment.  Write short notes : Attachment before judgment. (Oct-2013) CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Explain : Attachment before judgment. (Nov-2014) ✔ Explain the following provisions under the Code of Civil Procedure : Procedure in a suit in case of non-attendance of one or more of several defendants. (Dec-2015) ✔ Explain : Service or summons. (Nov-2014)  Explain the following provisions under the Code of Civil Procedure : Procedure for service of summons when the defendant refuses to accept the service of summons or cannot be found. (Dec-2015) ➔ Discuss : (i) Effect of Death on trial, (ii) Effect of marriage on trial, (iii) Effect of Insolvency of Parties ➔ Discuss : (i) Attendance of witnesses during trial, (ii) Adjournments. ➔ Explain the meaning of "Set-off" and distinguish between set-off and Counter claim. (Nov-2014) ✔ Explain the provisions of “set off" and “Counter claim” in civil suit with decided cases. (Nov-2011) ✔ Write short notes : Counter – claim (Nov-2012) ✔ Explain the terms "Set Off" and "Counter Claim” with illustrations and distinguish between them. (Dec-2015) ➔ Discuss : (i) Discovery of documents, (ii) Inspection of documents, (iii) Production of Documents. ➔ Discuss : Appointment of Commissioner. ✔ Write short notes : Commissioner for local inspection (Nov-2012) ➔ Explain the provisions of the temporary Injunction as well as Permanent Injunction with decided cases. (Nov-2011) ✔ In what cases temporary injunctions may be granted ? Enumerate and explain essentials regarding grant of temporary injunctions. (Nov-2012) ✔ Explain essentials regarding grant of Temporary Injunction. (Oct-2013) ✔ Explain : Guiding rules for granting Temporary Injunction. (Nov-2014) ✔ Explain in detail the provisions for the grant of temporary injunction with case laws. (Apr-2016) ➔ Explain in detail the Appointment, Duties and Powers of the Receiver. (Apr-2016) ✔ Write explanatory note : Provisions relating to appointment, Powers and duties of a receiver. (Dec-2015) ✔ Write short notes : Receiver (Nov-2012) ✔ Explain : Appointment of the Receiver. (Nov-2014) ➔ Discuss : Imposition of interest and costs. ➔ Explain in detail the provisions relating to suit by or against the Government with decided Cases. (Nov-2011) ✔ What are the procedural requirements for suits by or against Government ? (NovCONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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2012, Oct-2013) ✔ Discuss the provisions relating to the suit by or against the Government with necessary cases. (Nov-2014) ✔ Explain in detail the provisions relating to suit by or against the “Government” with case laws. (Apr-2016) ➔ Discuss : Suits by aliens and by or against foreign rules or ambassadors (ss8387A). ➔ Discuss : Suits relating to Public nuisance (ss 91-93) . ➔ Discuss : Suits by or against firm. ➔ Discuss : Legal Aid under CPC. ✔ Explain the provisions of suit by indigent persons under the Civil Procedure Code. (Nov-2014) ➔ Discuss : Suit of Mortgage. ➔ Discuss : Interpleader suits. ➔ Discuss : Suits relating to public charities. ➔ Discuss : Summary Suits and other special suits. ✔ Write in detail the provisions of summary proceedings in a civil suit with decided cases. (Nov-2011) ✔ Write explanatory note : Provisions relating to summary procedure. (Dec-2015) ✔ Explain in detail the provisions relating to suit of summary proceedings with case laws. (Apr-2016) ➔ Discuss : Execution of Decree (Sec.52-54) : Concept, General Principles, Procedure & Powers. ✔ Discuss about various modes of execution of decree and state the powers of court executing a decree. (Dec-2015) ✔ "A Court executing a decree cannot go beyond a decree." Discuss. (Nov-2014) ➔ Discuss : (i) Enforcement, (ii) arrest and Detention (Sec. 55-59), (iii) Sale (Sec.6597), (iv) Delivery of Property, (v) Stay of Execution. GO TO CONTENTS. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 MODULE-2 ANSWERS : ➔ Discuss in detail : Trial Procedure and, Judgment. ✔ Explain the provisions regarding appearance of parties and consequences of nonappearance of parties. (Nov-2012) CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ Explain in detail the provisions and consequences of appearance and nonappearance of parties to a suit with case laws. (Apr-2016) ✔ Discuss : Ex-parte procedure. ✔ Explain : Arrest and attachment before judgment.  Write short notes : Attachment before judgment. (Oct-2013)  Explain : Attachment before judgment. (Nov-2014) ✔ Explain the following provisions under the Code of Civil Procedure : Procedure in a suit in case of non-attendance of one or more of several defendants. (Dec-2015) ✔ Explain : Service or summons. (Nov-2014)  Explain the following provisions under the Code of Civil Procedure : Procedure for service of summons when the defendant refuses to accept the service of summons or cannot be found. (Dec-2015) ANSWER : ✔ Refer :  https://www.scribd.com/doc/154007184/civil-procedure-code-1908  http://jayant-myblog.blogspot.in/2015/05/civil-suit-trial-stages.html  https://www.slideshare.net/valechakaran/stages-of-civil-suit  https://www.lawfinderlive.com/bts4/cpc.htm ✔ Trial Procedure :  A lawsuit begins when a complaint is filed with the court.  The plaint consists of a heading and title, the body of plaint and the relief(s) claimed.  Every suit shall be instituted in the Court of the lowest grade competent to try it.  Outline : ● 1. Plaint and documents filed along with plaint ● 2. Issue of of Summons [O5 R1 to R8] ● 3. Service of Summons [Sec-27, Sec-28, O5 R9 to R30] ● 4. Arrest and Attachment before Judgment : ● 5. Documents to be Filed with Written Statement ● 6. Ex-parte procedure : Appearance of Parties and Consequences of NonAppearance ● 7. Discovery by Interrogation and Production of Documents ● 8. Issues ● 9. Hearing of the Suit ● 10. Affidavit ● 11. Judgement CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● 12. Decree ● 13. Execution of a Decree ● 14. Appeals ✔ 1. Plaint and documents filed along with plaint :  A plaint is the pleading of the plaintiff on which a suit is filed.  In order to substantiate the allegations and claims in the plaint there may be need of some documents. These documents will help the plaintiff for a fair chance of success in the suit.  There are some documents which are undisputed and the non-production of these documents will not turn out to be fatal.  Failure to produce documents which are necessary will be fatal to the case of the plaintiff.  The rule with regard to production of documents along with the plaint is mentioned in Order 7 Rule 14 of the CPC. ● Sub-Rule 1 of Rule 14 says that if the plaintiff relies upon a document in his possession for supporting his claims, he shall enlist such documents and produce along with the plaint when it is presented. ● Moreover, these documents are to be filed in the court along with copy.  If the documents are not filed by the plaintiff along with the suit, he will be precluded from filing the same at any later stage. ● However these can be filed at a later stage with the leave of the Court [Order 7 Rule 14(3)].  There is a provision to help the plaintiff in case the documents, which are very important for supporting his claim, are not within his possession. ● Sub-Rule 2 says that the plaintiff can state such documents in the plaint and wherever possible it shall be stated in whose possession or power those documents are.  In certain cases, especially in the case of Banks as plaintiffs, only certified copy of documents need to be filed at the time of presentation. ● The original documents can be produced later.  Documents filed along with the plaint are treated as part of the pleadings .  In Civil Rules of Practice in Rule 16(1) it is stated that every plaint or other proceeding shall at the foot thereof, contain a list of documents signed by the party or his pleader.

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 Image : “stagesofcivilsuit-151117090224-lva1-app6892.jpg” :

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 Image - “CPC Stages – cropped.jpg” :

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✔ 2. Issuance of Summons :   When a suit is instituted by the plaintiff the court orders to issue summons to the defendant. (O5 R1)  This is to permit the defendant to appear and answer the claim of the plaintiff.  This ensures a fair trial. Without a duly served summon, no further action can be taken against the defendant. So sending of summons is very important in a civil case.  O5 R1 : Summons : ● (1) When a suit has been duly instituted, a summons may be issued to the defendant  to appear and answer the claim  and to file the written statement of his defence, if any,  within thirty days from the date of service of summons on that defendant:  Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim:  Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. ● (2) A defendant to whom a summons has been issued under sub-rule (1) may appear—  (a) in person, or  (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or  (c) by a pleader accompanied by some person able to answer all such questions. ● (3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.  As per Order 5 the defendant is to file written statement within 30 days from the date of service of summons. Proviso of Order 5 states that – ● No such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim. ● So in order to attract this proviso the defendant must appear and as well as admit the claim.  In another proviso it is stated – ● If the defendant fails to file the written statement within the prescribed period of CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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30 days, he shall be allowed to file the same on such other days as may be specified by the Court for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.  The defendant may appear in person or by a duly instructed pleader or by a pleader accompanied by some person who able to answer all questions.  Every summons shall be accompanied by the copy of the plaint also.  O5 R2 : Copy of plaint annexed to summons : ● Every summons shall be accompanied by a copy of the plaint.  O5 R7 : Summons to order defendant to produce documents relied on by him : ● The summons to appear and answer shall order the defendant to produce all documents or copies thereof in his possession or power upon which he intends to rely in support of his case.  O5 R8 : On issue of summons for final disposal, defendant to be directed to produce his witnesses : ● Where the summons is for the final disposal of the suit,  it shall also direct the defendant to produce, on the day fixed for his appearance, • all witnesses upon whose evidence he intends to rely in support of his case. ✔ 3. Service of Summons : [Sec-27, Sec-28, O5 R9 to R30]  Sec-27, Sec-28 and Order 5 of the Code of Civil Procedure deals with the service of summons to defendants.  As per section 27 the summons may be served on such day not beyond 30 days from the date of the institution of suit.  The ordinary mode of service of summon is by delivery or tendering a copy of it to the person summoned either personally or to his agent or to any adult male/ female member of his family, against signature in acknowledgement of the service.  O5 R9 : Defendant resides within the jurisdiction of the Court : ● The Summon shall, unless the court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by Court. ● The summons may also be sent by any of the following means, but it will be at the expense of plaintiff :  (a) by registered post acknowledgement due, addressed to the defendant or his agent empowered to accept the service; or  (b) by speed post; or  (c) by such courier services as are approved by the Court; or  (d) by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 O5 R17 : Defendant refuses to accept service of summons or cannot be found : ● Where  (i) the defendant or his agent refuses to sign the acknowledgment,  (ii) or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, • who is absent from his residence and there is no likelihood of his being found at the residence within a reasonable time, • and there is no agent empowered to accept service of the summons on his behalf, ● the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business,  and shall then return the original to the Court from which it was issued,  with a report endorsed thereon or annexed thereto stating that • he has so affixed the copy, the circumstances under which he did so, • and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.  Sec-28 : Service when the defendant resides in another State : ● If the defendant is residing in another state, the summons is served through a court i.e. the court in which the suit is instituted issues the summons to the court in the jurisdiction of which the defendant resides for it to be served upon him. ● Now the court to which the summons is sent shall proceed as if it had been issued by such court and then return the summons to the court of issue together with the record of its proceedings in this regard.  O5 R19 : ● Where the acknowledgement to a summon contains an endorsement that the defendant or his agent had refused to take delivery of the summons :  the Court issuing the summons shall declare that the summons had been duly served on the defendant.  O5 R20 : Substitute Service : ● Where the Court is satisfied that the defendant is avoiding service of summon, or that for any other reason the summons cannot be served in the ordinary way,  the Court shall order the summons to be served by affixing a copy in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business. ✔ 4. Arrest and Attachment before Judgment : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Arrest before judgment : [Order 38 Rules 1 to 4] ● O38 R1 :  Where at any stage of a suit, the court is satisfied • (a) that the defendant, • with intent to delay the plaintiff • or to avoid any process of the court • or to obstruct or delay the execution of any decree that may be passed against him.• (i) has absconded or left the local limits of the jurisdiction of the court, or • (ii) is about to abscond or leave the local limits of the jurisdiction of the court, or • (iii) has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof, or • (b) that the defendant is about to leave India • under circumstances affording reasonable probability • that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant,  the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance :  Provided that the defendant shall not be arrested • if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim ; • and such sum shall be held in deposit by the court until the suit is disposed of or until further order of the court. ● O38 R2 :  Where the defendant fails to show such cause, • the court shall order him • either to deposit in court money or other property sufficient to answer the claim against him, • or to furnish security for his appearance at any time when called upon while the suit is pending,  Attachment before judgment : [Order 38 Rules 5] ● The court can order conditional attachment of whole or part of the property. ● O38 R5 :  (1) Where, at any stage of a suit the court is satisfied, that the defendant • with intent to obstruct CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• or delay the execution of any decree that may be passed against him • (a) is about to dispose of the whole or party of his property, or • (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, • the court may direct the defendant • either to furnish security in such sum as may be specified in the order, • or to produce and place at the disposal of the court, such portion of the said property of the value as may be sufficient to satisfy the decree, • or to appear and show cause why he should not furnish security.  (2) The plaintiff shall, unless the court otherwise direct, • specify the property required to be attached and the estimated value thereof. ✔ 5. Documents to be Filed with Written Statement :  The written statement is the pleadings of the defendant in a suit.  In the written statement, a defendant MAY categorically and specifically deny any/ all allegations against him and any/ all claims raised by the plaintiff in the plaint.  He can also raise a counter claim in the written statement.  As in a plaint, the defendant can also file documents along with written statement, if he relies upon the particular document.  The rule is envisaged under Order 8 Rule 1A of the CPC.  If the defendant has not produced the document along with his written statement, he cannot afterwards produce it in Court without its leave. ✔ 6. Ex-parte procedure : Appearance of Parties and Consequences of NonAppearance :  The general provisions of CPC are based on the principle that both the parties must be given an opportunity to be heard.  The proceedings must not be held to the disadvantage of one party.  Order 9 lays down rules regarding the appearance and the consequences of nonappearance of a party in the hearing.  (i) Where neither party appears – ● If both the parties do not appear when the suit is called on for hearing, the Court may make an order that the suit be dismissed.  (ii) Where the plaintiff appears and the defendant does not appear ● (a) when the summon was duly served – The Court may make an order that the suit shall be heard ex-parte. ● (b) Where the plaintiff appears and the defendant does not appear when the summon was not duly served – the Court shall direct a second summons to be issued and served on the defendant. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● (c) When summons served but not in due time – the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant ● (d) Where due to plaintiffs’ default the summons was not duly served or was not served in sufficient time – the Court shall order the plaintiff to pay the costs occasioned by the post-ponement.  (iii) Where only the defendant appears – (O9 R8) ● The Court shall make an order that the suit be dismissed,  unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission. ● O9 R9 provides that on such dismissal of the suit,  the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action;  but he may apply for an Order to set the order of dismissal aside. • In which case, the court shall, • after issuing notice of the application to the other side and on being satisfied that there was sufficient cause for non-appearance, • set aside the dismissal on payment of costs or on other terms as it thinks fit. ● In Lakshmi Commercial Bank v. Hans Raj AIR 1981 P&H 228 it was observed :  "In deciding whether a suit dismissed for default be restored, • what has really to be considered is whether the plaintiff was really trying to appear on the day fixed. • if sufficient cause is shown by the plaintiff for his non-appearance, court may restore the suit. • What is "sufficient cause" depends upon facts and circumstances of each case and liberal and generous construction should be adopted to advance the cause of justice and restoration should not ordinarily be denied."  Dismissal of Suit : The court may dismiss the suit on the date fixed for hearing if ● (a) the summons is not served upon the defendant in consequence of failure of the plaintiff  to pay the court fee or postal charges, or  to present copies of the plaint as required by O7 R9 (Order IX Rule 2 C.P.C.) ● (b) neither party appears when the suit is called for hearing (Order IX Rule 3) ● (c) After a summons has been issued to the defendant and returned unserved,  the plaintiff fails for a period of one month from the date of the return, • to apply for the issue of a fresh summons, • or plaintiff did not endeavour to discover the residence of the defendant CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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(Order IX Rule 5 C.P.C.) ● (d) The defendant appears and the plaintiff does not appear when the suit is called out for hearing, unless the defendant admits the claim or part thereof (Order IX Rule 8 C.P.C.).  Ex parte Decree (Order 9) – ● As per Rule 6, if the defendant fails to appear before the court in spite of a proper service of the summons, the court may proceed ex-parte and may pass a decree in favour of the plaintiff. This is called an ex-parte decree. ● In Re: [Hochest Company Vs V S Chemical Company], the SC explained that  an ex parte decree is such decree in which defendant did not appear before court and the case is heard in the absence of the defendant from the very beginning  Remedies available to the defendant against an ex parte decree : ● (i) Application to set aside the ex parte decree  As per Order 9, Rule 13, a defendant may apply before the court that passed the decree to set it aside.  If he satisfies the court that the summons was not duly served or he was prevented by any other sufficient cause from attending the hearing, the court shall make an order setting aside the decree.  For example, bona fide mistake as to the date or hearing, late arrival of train, etc. are sufficient causes for absence of the defendant.  Such an application for setting aside may be made within 30 days from the date of decree as per Section 123 of Limitation Act. ● (ii) Prefer an appeal against the decree under Section 96(2). ● (iii) Apply for review under Order 47 Rule 1. ● (iv) File a suit on the ground of fraud. ● All the above remedies are concurrent and can be pursued concurrently . ✔ 7. Discovery by Interrogation and Production of Documents :  Discovery means finding out material facts and documents from an adversary in order to know and ascertain the nature of the case or in order to narrow the points at issue or to avoid proving admitted facts.  The objects of a discovery are to – ● (i) Ascertain the nature of the case of the opponent or material facts for the opponent’s case. ● (ii) Obtain admission of opponent for supporting the party’s own case ● (iii) Narrow the points at issue ● (iv) Avoid expense and effort in proving admitted facts.  Discovery consists of a variety of methods including interrogation, deposition and CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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production of documents.  Discovery conducted using written questions may be secured through written interrogatories or requests to produce documents or other things. These requests may be served only upon a party. A request for production may seek any item within a party’s control.  A deposition is an interview of a party or witness conducted by a lawyer. Usually, this interview is conducted orally with a lawyer for the other side present and able to participate.  The procedure of Discovery involves a number of procedural rules – ● how a deposition is conducted, the permissible scope and who may conduct a deposition, ● when a party may object to a question at a deposition or to an interrogatory, ● when a party may enter upon land for inspection, ● when a party may make physical or mental inspections of another party, and ● what happens when a party does not cooperate with a court order directing compliance with discovery.  Admission by parties – ● ‘Admission’ means that one party accepts the case of the other party in whole or in part to be true. ● Admission may be either in pleadings or by answers to interrogatories, by agreement of the parties or admission by notice. ✔ 8. Issues :  Issues are points of contest between the parties in a suit.  The determination of issues has great importance in the trial of a case, because it is issues and not the pleadings, which indicates the appropriateness of evidence to be given.  The object of settlement of issues is to determine the material points in controversy between the parties.  Issues, whether raised from allegations in the pleadings or from other materials, should not be inconsistent with pleadings; the court is bound to frame the proper issues arising from the pleadings.  Kinds of Issues : ● O14 R1(4) : Issues are of two kinds : (i) Issues of Fact : • Issue of fact means any issue, which has not been determined, by a rule of law, but is to be answered, in accordance with the evidence laid before the court.  (ii) Issues of Law : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• Issue of law means that issue, which is to be answered in accordance with the law and not in accordance with the facts or evidences that is laid before the court.  Framing of Issues : ● According to order 14, issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. ● Material propositions are those propositions of law or fact which  a plaintiff must allege in order to show a right to sue  or a defendant must allege in order to constitute his defence. ● Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. ● O14 R1 : At the first hearing of the suit the court shall,  after reading the plaint, and the written statements, if any,  and after such examination of the parties as may appear necessary,  ascertain upon what material propositions of fact or of law the parties are at variance,  and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.  Note : • If the defendant at the first hearing of the suit makes no defence, • then according to order 14 rule 1, the court need not frame issues.  Amendment in Issues : ● O14 R5 : Power to amend and strike out issue : The Court may, at any time before passing a decree,  (a) amend the issue or frame additional issues on such terms as it thinks fit, • and all such amendment or additional issues as may be necessary for determining the matters in controversy between the parties • shall be so made or framed.  (b) strike out any issues that appear to it to be wrongly framed or introduced. ● In Kewal Krishan v. Dina Nath, AIR 1993 SC 881, it was observed that,  even though it is the duty of the court to frame proper issues, • mere omission to frame an issue is not necessarily fatal to the suit. • Omission to frame an issue is an irregularity which may or may not be a material one. • If such omission affects the disposal of the suit on merits, • the case must be remanded to the trial court for a fresh trial. • However, where the parties went to trial with full knowledge that a CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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particular point was at issue, • they have not been prejudiced and substantial justice has been done, • hence, absence of an issue is not fatal to the case so as to vitiate the proceedings.  In Sita Ram v. Radha Bai, AIR 1964 SC 497, it was observed that, ● "issues" are the backbone of a suit. ● Framing of issue has a very important bearing on the trial and decision of case.  Firstly because it is issues framed and not the pleadings that guide the parties in matter of leading evidence.  Secondly the court cannot refuse to decide the point on which issue has been framed.  Thirdly court should not frame issue which does not arise in pleadings.  Materials for framing issues : ● O14 R3 : The court may frame the issues from all or any of the following : (a) allegations made on oath by the parties, or by any person present on their behalf, or made by the pleaders of such parties ;  (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit ;  (c) the contents of documents produced by either party :  Postponing of framing of issues : ● O14 R4 provides that  where the Court is of opinion that the issues cannot be correctly framed • without the examination of some person not before the Court or • without the inspection of some document not produced in the suit,  it may adjourn the framing of the issue to a future day, • and may (subject to any law for the time being in force) compel • the attendance of any person or • the production of any document by the person in whose possession or power it is, by summons of other process  Priority in settling issues : ● According to order 14,  “where issues both of law and fact arise in the same suit, • and the court is of the opinion, that the case or any part thereof may be disposed of on issues of law only, • it shall try those issues first, • and for that purpose may if it thinks fit, postpone the settlement of the issues of fact until after the issue of law have been determined”. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ 9. Hearing of the Suit :  The plaintiff has the right to begin unless ● the defendant admits the facts alleged by the plaintiff ● and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, ● in which case the defendant has the right to begin.  Where there are several issues, the party beginning shall state his case and produce his evidence in support of the issues which he is bound to prove.  The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.  The party beginning may then reply generally on the whole case.  Any party may address oral arguments in a case, and shall submit written arguments if the Court so permits.  A copy of such written arguments shall be simultaneously furnished to the opposite party.  The Court shall fix such time limits for the oral arguments by either of the parties in a case, as it thinks fit. ✔ 10. Affidavit :  An Affidavit is a statement written and sworn to in the presence of someone authorized to administer an oath, such as a notary public, in which the person swears to the notary that the statement is true.  Order XIX of CPC deals with Affidavit and there are three rules under the said Order. ● RULE 1 : Power to order any point to be proved by affidavit –  Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:  Provided that where it appears to the court that either party bona fide desires the production of a witness for cross examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. ● RULE 2 : Power to order attendance of deponent for cross examination –  (1) upon any application evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross examination of the deponent.  (2) Such attendance shall be in court, unless the deponent is exempted from personal appearance in court or the court otherwise directs. ● RULE 3 : Matters to which affidavits shall be confined – CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 (1) affidavit shall be confined to such facts as the deponent is able of his knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.  (2) the costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same. ✔ 11. Judgement :  ✔ 12. Decree :  ✔ 13. Execution of a Decree :  ✔ 14. Appeals :  GO TO MODULE-2 QUESTIONS. GO TO CONTENTS. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : (i) Effect of Death on trial, (ii) Effect of marriage on trial, (iii) Effect of Insolvency of Parties ANSWER : ✔ Refer :  This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : (i) Attendance of witnesses during trial, (ii) Adjournments. ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm ✔ (i) Attendance of witnesses during trial :  Order 16 : Summoning and Attendance of Witnesses :  Rule 10 & Rule 12 : Procedure if witness fails to comply with summons or appear : ● The court has power to enforce the attendance of any person to whom a summons has been issued and for that purpose may CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 (a) issue a warrant, with or without bail, for his arrest;  (b) attach and sell his property;  (c) impose a fine upon him not exceeding Rs. 500; or  (d) order him to furnish security for his appearance and in default commit him to civil prison.  Thus, the court may, where a person to whom summons has been issued fails to comply with it, without lawful excuse, ● issue a proclamation requiring him to attend at a time and place named therein  before inflicting the penalities mentioned above.  Where the person appears after the attachment of his property ● and satisfies the court, that he did not fail to comply with the summons without lawful excuse  or did not intentionally avoid service,  or that he had no notice of the proclamation,  the court may release the property from attachment. ● and fails to satisfy the court,  the court may impose upon him fine not exceeding Rs. 500 and attach and sell his property for the recovery of the same. (Order 16, Rules 11 and 12). ✔ (ii) Adjournments :  O17 R1(1) : Court may grant time and adjourn hearing : ● Court may,  if sufficient cause is shown, at any stage of the suit,  grant time to the parties or to any of them  and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing.  Vide Amendment Act No. 46 of 1999 a proviso is attached to Rule 1(i) which says ● "No such adjournment shall be granted more than three times to a party during hearing of the suit."  So right of adjournment on showing sufficient cause has been limit to three times. ● ie Suit may be dispossed off expeditiously and no party to suit should seek adjournment as a delaying tactic.  O17 R1(2) : Costs of adjournment : ● In every such case the court shall fix a day for the further hearing of the suit;  and may make such order as it thinks fit with respect to the costs occasioned by the adjournment.  Disposal of the suiit if either party fails to produce evidence : ● O17 R3 Court may proceed notwithstanding either party fails to produce CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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evidence :  Where any party to a suit to whom time has been granted • fails to produce his evidence, • or to cause the attendance of his witnesses, • or to perform any other act necessary to the further progress of the suit, for which time has been allowed,  the Court may proceed to dispose of the suit in one of the modes directed in this behalf by Order IX. • or make such other order as it thinks fit ● Thus, the court may, notwithstanding such default  (a) if the parties are present, • proceed under R3 to decide the suit forthwith; or  (b) if the parties are, or any of them is absent, • proceed under R2 (ex-parte) • Note : A decree passed under Rule 2 can be set aside under O9 R13 of the Code if the necessary requirements are fulfilled. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain the meaning of "Set-off" and distinguish between set-off and Counter claim. (Nov-2014) ✔ Explain the provisions of “set off" and “Counter claim” in civil suit with decided cases. (Nov-2011) ✔ Write short notes : Counter – claim (Nov-2012) ✔ Explain the terms "Set Off" and "Counter Claim” with illustrations and distinguish between them. (Dec-2015) ANSWER : ✔ Refer :  http://himanshuaroras.blogspot.in/2013/02/written-statement-order-viii-of-cpcof.html  https://blog.ipleaders.in/civil-procedure-code-quick-peak/ ✔ ✔ Counter claim : : Short note : ● A counterclaim is a claim by the defendant against the plaintiff. ● The usual notion is that the plaintiff has certain claims which the defendant defends himself against. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 However, sometimes, the defendant may also have some claims against the plaintiff. ● A counterclaim has to be a claim that could have been the subject matter of another suit and it is essentially a cross action. ● The defendant submits his claims in a document(s). The term ‘plaint’ incorporates this document as well. ● The defendant’s counter claim plaint need not pertain to the same information as in a plaintiff’s plaint. ● For example :  Shahid filed a suit for divorce from Karishma in the District Court citing incompatibility, and the summons was served on her. Karishma filed a suit a week later for judicial separation on the grounds of desertion. • Can this submission of Karishma’s be taken as a counterclaim to Shahid’s suit? • Yes, it is a cross action. A counterclaim does not give rise to a different suit, but may be taken as a reply to a claim by the plaintiff. ✔ Counter claim : :  Meaning of counter-claim : ● "Counter-claim" is one of the pleas open to a defendant to defeat the relief sought by the plaintiff against him. ● Counter claim is a claim by the defendant against the plaintiff.  It is a claim independent of and separable from, the plaintiff’s claim which can be enforced by a cross-action.  It is a cause of action in favour of the defendant against the plaintiff. ● A defendant in a suit may (in addition to his right to plead a set-off), ALSO set up a counter-claim.  However, counter claim may be set up only in respect of a claim for which the defendant can file a separate suit. Thus, a counter-claim is substantially a cross-action. ● A defendant is required to file a written statement against the contentions raised by the plaintiff in the plaint.  Defendant also has the right to file a counter claim also in appropriate cases. ● It is like the plaint of the defendant against the plaintiff. The courts normally treat the counter claim as a plaint.  Object of counter-claim : ● O-8 R-6A contemplates counter-claim in any suit.  The scheme of the new rule is to permit the defendants to set up counterclaims, which arise between the parties and which are cognizable by the court CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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where the suit is pending. ● The object appears to be to reduce pendency of cases so that cause of action and cross-claim similar in nature could be clubbed together and disposed of by a common judgment.  Definition : O-8 R-6A : Counter-claim by defendant : ● (1) A defendant in a suit may (in addition to his right of pleading a set-off under rule 6),  ALSO set up, by way of counter-claim against the claim of the plaintiff, • any right or claim in respect of a cause of action accruing to the defendant against the plaintiff • either before or after the filing of the suit, • but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:  Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. ● (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. ● (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. ● (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.  Definition : O-8 R-6B : Counter-claim to be stated : ● Where any defendant seeks to rely upon any ground as supporting a right of counter-claim,  he shall, in his written statement, state specifically that he does so by way of counter-claim.  Definition : O-8 R-6C : Exclusion of counter-claim : ● Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit,  THEN the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, • and the Court may, on the hearing of such application make such order as it thinks fit.  Definition : O-8 R-6D : Effect of discontinuance of suit :

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● If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed,  THEN, the counter-claim may nevertheless be proceeded with.  Definition : O-8 R-6E : Default of plaintiff to reply to counter-claim : ● If the plaintiff makes default in putting in reply to the counter-claim made by the defendant,  the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him • or make such order in relation to the counter-claim as it thinks fit.  Definition : O-8 R-6F : Relief to defendant where counter-claim succeeds : ● Where in any suit a set-off or counter-claim is established as defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the case may be,  THEN, the Court may give judgment to the party entitled to such balance.  Definition : O-8 R-6G : Rules relating to written statement to apply : ● The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.  Some important aspects of counter-claim : ● Counter-claim can be filed after filing of written statement. ● In Smt. Shanti Rani Das v. Dinesh Roy it has been held that the right to file a counter claim is referable to the date of accrual of cause of action.  If the cause of and such action had arisen before or after filing of the suit, cause of action continued up to the date of filing of the suit and such cause of action continued up to the date of filing written statement or extended date of filing plaintiff statement, THEN such counter claim can be filed even after filing the written statement. ● Claim and counter-claim decision by a single judgment : Although O-8 R-6A speaks of a counter-claim as a plaint in one place and as across-claim in another place, in its operative provision it lays down the Court should deliver a single judgment both on the original claim and counter-claim. ● O-8 R-6C specifically lays down a special procedure to separate the suit claim from the counterclaim. This provision emphasises the general rule that the suit claim and counter-claim ought to properly be regarded as constituting a unified proceeding.  However, should the plaintiff desire that the suit claim and counter- claim be dealt with as separate suits, he ought to apply therefore before the trial Court before the issues are settled. ✔ Set off : : Shortnote :  Where a plaintiff has instituted a suit for the recovery of money from the CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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defendant,  and the defendant has certain claims of money from the plaintiff, ● the defendant can set-off his claim against the plaintiff’s demand.  So, any sum of money legally recoverable by the defendant from the plaintiff, on the conditions that : ● it should not exceed the pecuniary limits of the jurisdiction of the Court, and ● both parties fill the same character as they fill in the plaintiff’s suit, ● at the first hearing of the suit, but not afterwards (unless the Court permits it), he presents a written statement containing the particulars of the debt he seeks to set-off.  Example : ● The compensation in a suit of wrongful possession between an owner and his tenant, may not be set off with the compensation in a suit for the inheritance of property from a common deceased relative. ✔ Set off : :  Meaning : ● In law, a set-off is a statutory defense to the whole or to a portion of a plaintiff's claim. ● Although set-off was recognized in equity, such a defense could be pleaded only in respect of mutual debts of a definite character,  and did not apply to cases in which damages were claimed, nor to equitable claims or demands. ● Set off is reciprocal acquittal of debts. ● In an action to recover money set-off is a cross-claim for money by the defendant, for which he might maintain an action against the plaintiff and which has the effect of extinguishing the plaintiff’s claim pro tanto (ie to that extent). ● The doctrine of set-off may be defined as  "the extinction of debts of which two persons are reciprocally debtors to one another by the credits of which they are reciprocally creditors to one another". ● Where in a suit for recovery of money by the plaintiff, the defendant finds that he has also a claim of some amount against the plaintiff, he can claim a set-off in respect of the said amount.  Definition : O-8 R.6 : Particulars of set-off to be given in written statement : ● (1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand  any ascertained sum of money legally recoverable by him from the plaintiff, • not exceeding the pecuniary limits of the jurisdiction of the Court,  and both parties fill the same character as they fill in the plaintiff's suit, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, • presents a written statement containing the particulars of the debt sought to be set-off. ● (2) Effect of set-off—The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off:  but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. ● (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.  Types of Set-off : ● 1. Legal Set-off :  In order to constitute legal set-off the following conditions must be fulfilled, viz. • (a) The suit must be for recovery of money . • ie Set-off has no application in a suit of ejectment against a tenant, though it is based on default of payment of rent • (b) The defendant must claim an ascertained sum of money . • A sum of money due in respect of a disputed transaction cannot constitute an un-ascertained sum. • (c) That ascertained sum must be legally recoverable from the plaintiff , • i.e. it is not barred by the law of limitation. • (d) `The plaintiff’s claim and the set-off must be claimed in the same character. • The amount must be recoverable by the defendant from the plaintiff and if there are more than one defendant then by all the defendants. • The amount must be recoverable by the defendant from the plaintiff and if there are more than one plaintiff then from all the plaintiffs. • (e) The set-off should be within the pecuniary jurisdiction of the court .  The above provisions further establish that the court must treat the claim of the defendant exactly as if the defendant had filed a plaint and the court must pass a decree in favour of the defendant, if his claim is established.  It is only in a written statement that a plea of set-off can be raised.  The rule further confines only to set-off and does not provide for a counterclaim, which is allowed by way of equitable set-off, and is not expressly provided in O-8 R-6A by CPC (Amendment) Act, 1976.  Illustrations : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's goods and is liable to him in compensation which he claims to set-off. • Here, the amount not being ascertained cannot be set-off. • A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. • Here, the two claims being both definite, pecuniary demands may be set-off. • A and B sue C for Rs. 1,000. • Here, C cannot set-off a debt due to him by A alone. • A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving. A sues C for a debt of Rs. 1,500 due in his separate character. • Here, C may set-off the debt of Rs. 1,000 ● 2. Equitable Set-off :  By equitable set-off we mean that form of set-off which the Court of Equity in England allowed when cross-demands arose out of the same transaction; even if the money claimed by way of set-off was an unascertained sum of money.  The Common Law Courts refused to take notice of equitable set-off claims for they were not ascertained sums. • However, the Courts of Equity agreed, because it would be inequitable to drive the defendant to a separate cross-suit and that he might be allowed to plead a set-off though the amount might be unascertained. • Such a set-off is called an equitable set-off.  Illustrations : • A sues B to recover Rs 6,000 due under a contract. B admits A’s claim, but claims to set-off several sums of money alleged to be damages sustained by him by reason of A’s breach of some of the terms of the same contract. • Here, B is entitled to claim the set-off, for the claim arises from the same transaction. • A agrees to sell, and B agrees to purchase, 200 bales of wool. B takes delivery of l70 bales and is ready and willing to take delivery of the remaining 30 bales, but A fails to deliver them. A sues B for the price of the 170 bales. B claims to set-off the damages sustained by him by reason of A’s failure to deliver the remaining bales. • Here, B is entitled to claim the set-off, as the claim arises out of the same transaction.  Principles governing equitable set-off : As a result of a series of decisions of the Courts in India there emerge the following propositions of law with regard to equitable set-off : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• As equitable right of set-off exists in this country when both the claim of the plaintiff and that of the defendant arise out of the same transaction. • The law of equitable set-off applies where the cross-claims, though not arising out of the same transaction, were closely connected together. ● Distinction between Legal and Equitable Set-off : The distinction between legal and equitable set-off may now be noted :  In a legal set-off the amount claimed must be an ascertained sum of money, • in an equitable set—off the claim must-be allowed even with respect to an unascertained sum of money.  In a legal set-off the court is bound to entertain and adjudicate upon the plea when raised. • in the case of an equitable set-off, however, it is not obligatory on the court to adjudicate upon it. The defendant cannot claim it as a matter of right. The court has the discretion to refuse to take notice of the equitable set-off if the investigation into the equitable claim is likely to result in delay.  In a legal set-off it is not necessary that the cross-demands arise out of the same transaction, • an equitable set-off is allowed only when the cross-demands arise out of the same transaction as the plaintiff ’s claim.  In a legal set-off the amount claimed to be set off must be legally recoverable and not barred by limitation at the date of the suit, • a claim by way of equitable set-off can be allowed even if it is barred at the date of the suit where there is fiduciary relationship between the plaintiff and the defendant. Eg Master-Servent.  A legal set-off requires a court-fee because it is a claim that might be established by a separate suit in which a court-fee would have to be paid. • there is no such fee required in an equitable set-off which is for an amount that may equitably be deducted from the claim of the plaintiff where a court-fee has been paid on the gross amount. ✔ Distinguish between set-off and Counter claim :  Set-off is a statutory defence to a plaintiff’s action. ● Counter-claim is substantially a cross action.  In legal set-off amount must be recoverable at the date of the suit. ● Amount must be recoverable at the date of written statement.  Set-off must be for an ascertained sum or must arise out of the same transaction as the plaintiff’s claim; ● a counter-claim, however, need not arise out of the same transaction.  Set-off can only be a shield and not a sword. Set-off is a statutory ground of CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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defence and has to be pleaded in the written statement. ● Counter-claim is a weapon of offence which enables the defendant to enforce his claim against the plaintiff as effectually as in an independent action. ● It is a sort of cross-action. It does not afford any defence to the plaintiff’s claim.  If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to establish his plea has to prove that set-off was barred when the plaintiff commenced the action; it is not enough to prove that it was barred at the time when it was pleaded. ● In the case of a counter-claim it is enough for the plaintiff to prove that the counter-claim was barred when it was pleaded.  Set-off amount claimed must be below or up to suit claim. ● A counter-claim by the defendant may however, exceed the plaintiffs claim, being in the nature of the cross-action. ● Under the provision of O-8 R-6F, if in any suit a set-off or counter-claim is established as a defence against the plaintiffs claim, and any balance is found due to the defendant, as the case may be, the court may give judgment to the party entitled to such balance. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : (i) Discovery of documents, (ii) Inspection of documents, (iii) Production of Documents. ANSWER : ✔ ✔ Refer :  http://www.shareyouressays.com/knowledge/legal-provisions-of-section-30-ofcode-of-civil-procedure-1908-c-p-c-india/114404  https://www.nls.ac.in/lib/bareacts/civil/cpc/cpco11.html ✔ Intro :  After the plaint has been filed by the plaintiff and the written statement by the defendant in court, it may appear to a party that the nature of his opponent’s case is not sufficiently disclosed in his pleadings. ● And every party to a suit is entitled to know the nature of his opponent’s case to enable him to know beforehand what case he has to meet at the hearing.  Every suit contemplates two sets of facts, namely, ● (1) facts which constitute a party’s case, which discloses the nature of a party’s case, ● (2) facts by which a party’s case is to be proved, which forms the evidence of his CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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case.  A party is entitled to know beforehand only the first set of facts , ● and not the facts which constitute exclusively the evidence of his opponent’s case, because for if the second set was also available to the opponent beforehand,  it would enable an unscrupulous party to tamper with his opponent’s witnesses,  and to manufacture evidence in contradiction,  and so shape his case as to defeat justice.  The lacuna in “facts which constitute a party’s case“ is redressed ● by discovery, through interrogatories, discovery of documents or by admissions. ✔ Basis for discovery, inspection, production, impounding, etc :  Sec-30 : Power to order discovery and the like : ● Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,  (a) Make such orders as may be necessary or reasonable in all matters relating to • the delivery and answering of interrogatories, • the admission of documents and facts, • and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;  (b) Issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;  (c) Order any fact to be proved by affidavit. ✔ Order XI Rule 20 : Premature Discovery :  A discovery is said to be premature when ● the right to the discovery of any kind of inspection sought depends upon the determination of any issue or question in dispute in the suit ● or for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection.  In such case the court may order that such issue or question in dispute in the suit be determined first and reserve the question as to the discovery or inspection.  It is discretionary to postpone discovery and inspection until some issue is determined ● but there is no contravention in ordering discovery or inspection before any issue is determined. ✔ Order XI Rule 21 : Non-compliance with order of discovery : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 When any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, ● if a plaintiff, be liable to have his suit dismissed for want of prosecution, ● and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, ● and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect, ● and an order may be made on such application accordingly after notice to the parties and after giving them a reasonable opportunity of being heard.  Where an order is made dismissing the suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. .  Note : The provisions of Order XI, Rule 21 CPC are not applicable to cases of noncompliance with the order for production of documents under Order XI, Rule 14, CPC. ie an order passed by the Court for the production of documents. ● at best the Court could draw an adverse inference because of non-production of documents by the plaintiff. ✔ (i) Discovery of documents :  Discovery is the obtaining by one party to an action or suit of information on oath from another party.  Discovery of documents enables a party to ascertain the nature of his opponent’s case or the material facts constituting his case.  It proceeds on the principle that every party to a suit is entitled to know the nature of his opponent’s case so that he may know beforehand what case he has to meet at the hearing.  It also enables a party to obtain admissions from his opponent to facilitate the proof of his own case.  It is of two kinds : ● (A) discovery by interrogatories of facts relevant to the issues in the action and within the knowledge of the party interrogated; and ● (B) discovery of documents relating to the matters in the action and in the possession of the 3rd party.  (A) Discovery by Interrogatories : ● IF the nature of the plaintiff’s case as disclosed in his plaint does not sufficiently disclose the nature of his case,  the defendant may administer interrogatories to the plaintiff. ● And IF the nature of the defedent’s case as disclosed in his written statement idoes not sufficiently disclose the nature of his case,  the plaintiff may administer interrogatories o the defendant, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● Before interrogatories are administered to the plaintiff by the defendant or to the defendant by the plaintiff,  it is necessary to obtain leave of the court to do so. ● The object of interrogatories is  (1) to ascertain the nature of your opponent’s case or the material facts constituting his case;  (2) to support your own case, either • (a) directly, by obtaining admissions, or • (b) indirectly, by impeding or destroying your adversary’s case. ● This results in narrowing the points in issue and also eliminates proving facts which are, admitted. ● Interrogatories will not be allowed in the following cases :  A party is not entitled to administer interrogatories for obtaining discovery of facts which constitute exclusively the evidence of his adversary’s case of title.  A party is not entitled to interrogate as to any confidential communications between his opponent and his legal advisers.  A party is not entitled to administer interrogatories which would involve disclosures injurious to public interests.  An interrogatory although relevant to and bona fide for the purposes of a suit may be premature, in which case it will not be allowed.  Interrogatories must not be fishing in nature, that is to say, they must refer to some definite and existing state of circumstances, and must not be put merely in the hope of discovering something which may help the party interrogating to make out some case.  (B) Discovery of documents : ● Any party may,  without filing any affidavit,  apply to the court for an order directing any other party to any suit  to make discovery on oath of the documents which are or have been in his possession or power,  relating to any matter in question therein. ● The court may either refuse or adjourn the application if satisfied that such discovery is not necessary or not necessary at that stage of the suit, or make such order as may be thought fit. ● Discovery refused : (Order XI, Rule 12)  But such discovery shall not be ordered when and so far as the court shall be of opinion that • it is not necessary either for fairly disposing of the suit or for saving costs. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● Jurisdiction of Court :  The suit being for enforcement of the security, it could be filed only where the property is situated.  In case the defendants desired to raise the question of jurisdiction as the mortgage was fictitious, they could do so. ● Classes of Documents subject to Discovery : Documents in respect of which discovery is claimed may be divided into two classes : • (a) Those which the adversary is entitled to inspect and • (b) Those which he is not entitled to inspect.  The adversary is entitled to inspection of all documents which do not come within class (b). ● Affidavit of documents :  Order XI, Rule 13 : A party who is directed by court to make discovery of documents should file an affidavit specifying which of the documents he objects to produce, or state on oath if he has no such documents.  In his affidavit of documents, he must set forth in the affidavit • all documents which are or have been in his possession or power relating to all matters in question in the suit. • specify which of the documents therein mentioned he objects to produce and shall set forth the grounds of objection.  There are three grounds on which production of documents can be resisted as of right. They are : • (1) A party is not bound to produce for the inspection of his opponent documents which of themselves evidence exclusively the party’s own case of title; • (2) A party is not bound to produce any confidential communications between him and his legal adviser; and • (3) A party is not bound to produce any public official document, if its production would be injurious to public interests. ✔ (ii) Inspection of documents :  Order XI Rule 15 : Inspection of documents referred to in pleadings or affidavit : ● Every party to a suit may give notice to any other party,  in whose pleadings or affidavits reference is made to any document, or who has entered any document in any list annexed to his pleadings,  to produce such document for the inspection of the party giving such notice, or of his pleader  and to permit him or them to take copies thereof. ● The party not complying with such notice shall not afterwards be allowed to put CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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any such document in evidence on his behalf in such suit,  unless he satisfies the court that • such document relates only to his own title, he being a defendant to the suit, • or that he had some other sufficient cause or excuse.  Order XI Rule 17 : Time for inspection when notice given : ● The party to whom such notice is given shall,  within ten days from the receipt of such notice, deliver to the party giving the same  a notice stating a time within three days from the delivery thereof • at which the documents, or such of them as he does not object to produce, • may be inspected at the office of his pleader, • or in the case of bankers’ books, account books or books in constant use for any trade or business, at their usual place of custody, • and stating which, if any, of the documents he objects to produce and on what ground.  Order XI Rule 18(1) : Order for inspection : ● Where the party receiving notice omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, ● the court may, on the application of the party desiring it,  make an order for inspection at such place and in such manner as it thinks fit, ● but no order will be made where the court thinks that it is not necessary either for disposing fairly of the suit or for saving costs.  Order XI Rule 18(2) : Documents not referred to in pleading or affidavit : ● An application to inspect documents, other than those referred to in the pleadings or affidavits ● shall be founded upon an affidavit showing of what documents inspection is sought,  that the party applying is entitled to inspect them  and that they are in the possession or power of the other party. ● The court shall not make such order for inspection if it is of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.  Order XI Rule 19(1) & (2) : Verified copies : ● In case of inspection of any business books the court may  instead of ordering inspection of the original books • order a copy of any entries therein to be furnished and verified by the CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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affidavit of some person who has examined the copy with the original entries • stating whether or not there are in the original book any and what erasures, interrelations, or alterations. ● The court may notwithstanding that such copy has been supplied, order inspection of the book from which the copy was made. ● Where on an application for an order for inspection privilege is claimed for any document, the court may inspect the document for the purpose of deciding as to the validity of the claim of privilege, unless the document relates to matters of State. ✔ (iii) Production of Documents :  Order XI, Rule 14 : The court may at any time during the pendency of any suit order any party ● to produce on oath any documents in his possession or power relating to the suit.  Order has to be speaking one : ● Where order was passed without assigning any reason on mere ground that counsel for opposite party had refused to address argument when opposite party contested application by filing reply  held that such order was invalid.  The court may, on the application of any party to a suit at any time, ● make an order requiring any other party to state by affidavit ● whether anyone or more specific documents specified in the application is or are, or has or have at any time been, in his possession or power; ● and if not then in his possession, when he parted with the same ● and what has become thereof.  Order XI, Rule 19(3) : Such application shall be made on an affidavit stating that ● in the belief of the deponent the party against whom the application is made ● has, or has at some time had, in his possession or power ● the documents specified in the application, ● which relate to matters in question in the suit. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Appointment of Commissioner. ✔ Write short notes : Commissioner for local inspection (Nov-2012) ANSWER : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm ✔ Appointment of Commission :  Sections 75 to 78 and Order 26 of CPC lays down the provisions relating to commissions.  Sections 75 & 76 provide that, ● the court may issue commission in the following cases • to any person or to Court other than a High Court :  (i) for examination of witness  (ii) for local investigation;  (iii) to examine accounts;  (iv) to make a partition;  (v) to hold a scientific, technical or expert investigation.  (vi) to conduct sale of properties • which is subject to speedy and natural decay and • which is in the custody of the Court pending the determination of the suit;  (vii) to perform any ministerial act; (“attend to the needs of some office) ✔ Commission to examine witnesses :  O26 R1 deals with the cases in which the Court may issue commission to examine witnesses : ● Any Court may in any suit  issue a commission for the examination on interrogatories or otherwise of any person  resident within the local limits of its jurisdiction  who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it ● Provided that a commission for examination on interrogatories  shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.  O26 R4 further lays down that, ● Any Court may in any suit  issue a commission for the examination on interrogatories or otherwise of • (a) any person resident beyond the local limits of its jurisdiction; • (b) any person who is about to leave such limits before the date on which he is required to be examined in court; and • (c) any person in the service of the Government who cannot, in the opinion CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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of the court, attend without detriment to the public service: ● Provided that where a person cannot be ordered to attend a court in person,  a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice: ● Provided further that a commission for examination of such person on interrogatories  shall not be issued unless the Court, for reasons to be recorded, thinks, it necessary so to do. ✔ Commission to make local investigation :  Rule 9 of Order 26 of the Code of Civil Procedure deals with the commission to make local investigation. It provides that in any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits of damages of annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. ✔ Commission for scientific investigation :  O26 R10A : ● Where any question arising in a suit involves any scientific investigation  which cannot be conveniently conducted before to the court  Court may issue a commission to such person as it thinks fit, • directing him to inquire into such question and report thereon the Court. ✔ Likewise, following is the summary on other provisions related to Court Commission :  Rule 10B deals with the commission for performance of a ministerial act.  Rule 11 deals with the commission to examine or adjust accounts.  Rule 13 deals with the commission to make partition of immovable property.  General provisions : ● Rule 15 : Before issuing any commission, the Court may order such sum as it thinks reasonable for the expenses of the commission to be paid into Court by the party at whose instance or for whose benefit the commission is issued. ● Rule 16 deals with Powers of Commissioners. ● Rule 17 deals with attendance & examination of witnesses before Commissioner ● Rule 18-B provides for the Court to fix a time for return of Commission  Commissions issued at the instance of foreign Tribunals : ● Rule 19 to Rule 22. ✔ Appointment of Commissioner is NOT an inherent power of a Court :  A Court has no inherent powers under section 151 of the CPC to appoint a CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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Commissioner because inherent powers are not over substantive rights.  In Padam Sen v. State of U.P., AIR 1961 SC 218, Supreme Court has held, ● that a Court has no inherent powers under section 151 C.P.C. to appoint a Commissioner to seize account books in the possession of the plaintiff upon an application by the defendant that he has apprehension that they would be tampered with. ● powers saved by section 151 C.P.C. are not powers over substantive rights which a litigant possesses. ● A party has full right over his account books. ● A Court can summon them and, if not produced, • it can penalise the party and draw adverse presumption against him.  BUT court can not seize them forcibly. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain the provisions of the temporary Injunction as well as Permanent Injunction with decided cases. (Nov-2011) ✔ In what cases temporary injunctions may be granted ? Enumerate and explain essentials regarding grant of temporary injunctions. (Nov-2012) ✔ Explain essentials regarding grant of Temporary Injunction. (Oct-2013) ✔ Explain : Guiding rules for granting Temporary Injunction. (Nov-2014) ✔ Explain in detail the provisions for the grant of temporary injunction with case laws. (Apr-2016) ANSWER : ✔ Refer :  http://bit.ly/2vj7sgu kamkus.org coursematerial : Civil Procedure Code & Limitation Law.pdf  http://himanshuaroras.blogspot.in/2013/01/injunctions-in-india.html  http://www.assignmentpoint.com/arts/law/injunction-specific-relief-act.html ✔ Short note “Temporary and Permanent Injunction” : https://blog.ipleaders.in/civilprocedure-code-quick-peak/  An injunction is like a spoke in the wheel.  It aims to maintain the status quo and prevent any possible further injury to the plaintiff, sometimes for the duration of the trial and sometimes as a part of a permanent decree given at the conclusion of the trial.  Requirement for grant of injunction : There are certain requirements that need to be taken care of before the Court will consider granting an injunction. The plaintiff must show that : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● (a) Plaintiff must establish a prima facie case in his favour . On the face of the facts presented, the plaintiff is more likely to win the case. ● (b) Between himself and the defendant, the balance of convenience tilts towards him. ● (c) Irreparable injury would result from not granting the injunction which would not be recoverable through compensation.  A permanent injunction restrains a party from ever doing a particular act and is granted on merits at the conclusion of the trial. ● Permanent Injunction may be a mandatory direction or an order to abstain, made at the end of the trial when the Court has decided and decreed upon the rights of the parties and the steps to be taken to grant relief to the winning party.  A temporary injunction, on the other hand, is granted only until the disposal of the suit  and it cannot be granted against the third party. ● This applies, for example, when the property in dispute is deteriorating or being damaged; the plaintiff can ask for a temporary injunction on the defendant’s neglect of the goods. ● For instance, if the defendant is likely to sell or transact using the property in dispute, it is necessary to get an injunction on the sale of the property. ● For example, suppose A and B have entered into a dispute concerning Property X and A takes the matter to Court. Upon receiving the summons, B contrives to sell the property immediately to C who wants to build a hotel on the said property.  Here, A cannot move to get a temporary injunction on C for the length of the trial because temporary injunction cannot be enforced on a third party. ✔ Intro :  Every court is constituted for the purpose of administering justice between the parties ● and therefore, must be deemed to process all such powers as may be necessary to do full and complete justice to the parties before it.  It is a well stated principle of law that an interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding. Therefore, a court undoubtedly processes the power to grant interim relief during the pendency of the suit. ✔ Meaning of Injunction :  An injunction is an order by the Court to a party to the effect that he shall do or refrain from doing a particular act. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any particular act.  It is a remedy in the form of an order of the Court addressed to particular person that ● either prohibits him from doing ‘or continuing to do a particular act (prohibitory injunction); ● or orders him to carry out a certain act (mandatory injunction).  According to Lord Halsbury : ● "An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing." ● In the former case it is called a Restrictive Injunction and the later case a Mandatory Injunction.  An injunction is an equitable remedy in the form of a court order that requires a party to do, or to refrain from doing, certain acts.  A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions. ● In some cases, breaches of injunctions are considered serious criminal offenses that merit arrest and possible prison sentences. ✔ Object :  The primary purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated, keeping in mind the pros and cons of the matter ● and striking a delicate balance between two conflicting interests,  i.e., injury and prejudice, likely to be caused to the plaintiff if the relief is refused;  and injury and prejudice likely to be caused to the defendant if the relief is granted.  The court in the exercise of sound judicial discretion can grant or refuse to grant interim relief.  The underlying object of granting temporary injunction is ● to maintain and preserve status quo at the time of institution of the proceedings ● and to prevent any change in it until the final determination of the suit.  It is in the nature of protective relief granted in favour of a party to prevent future possible injury.  The need for such protection, however, has to be judged against the corresponding needs of both the plaintiff and defendant to be protected against injury. ● The court must weigh one need against another and determine where the balance of convenience lies and may pass an appropriate order in exercise of its CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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discretionary power. ✔ Kinds of Injunction :  Injunctions are of three kinds: ● (i) temporary or Interlocutory or interim; ● (ii) permanent or perpetual, and ● (iii) mandatory.  Injunctions are also ● (i) preventive, prohibitive or restrictive, i.e. when they prevent, prohibit or restrain someone from doing something; or ● (ii) mandatory, i.e. when they compel, command or order some person to do something. ✔ Temporary Injunction : Interlocutory Injunction : Order 39 of CPC  According to order 39 of the CPC any order made temporarily prohibiting the defendant not to alienate, or to change or to damage the property in dispute during the pendency of the suit is called temporary injunction.  According to section 53 of the Specific Relief Act, temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period of a suit and are regulated by the Code of Civil Procedure, 1908.  Courts can also issue preliminary injunctions to take effect immediately and effective until a decision is made on a permanent injunction, which can stay in effect indefinitely or until certain conditions are met.  Temporary injunctions are thus injunctions issued during the pendency of proceedings.  Object of temporary injunction : ● The purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated. ● The underlying object of granting temporary injunction is to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit.  When and how a temporary injunction is granted : ● A temporary or interim injunction,  is regulated by the provision of the Order 39 of the CPC 1908  can be granted only until the disposal of the suit or until the further order of the Court.  may be granted at any stage of the suit. ● Essence of O-39 R-1&2 of the CPC – Temporary injunction may be granted by CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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the Court in the following cases when any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or;  when the defendants threatens, or intends to remove or dispose of his property with a view to defrauding his creditors; or  when the defendants threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit; or  when the defendant is about to commit a breach of contract, or other injury of any kind; or  when the court is of the opinion that the interest of justice so requires.  Who may apply? ● The relief of temporary injunction is generally prayed for by the plaintiff. ● However, it is not the plaintiff alone who can apply for an interim injunction. A defendant also may make an application for grant of an injunction against the plaintiff. ● In an appropriate case the defendant may also pray for and obtain an order of temporary injunction against the plaintiff.  eg in the plaintiffs suit for specific performance of contract of a transfer, on the prayer of the defendant, the plaintiff may be restrained from raising structure on the suit land by temporary injunction. ● The defendant can apply for temporary injunction against the plaintiff only if the relief claimed by the defendant arises out of the plaintiff’s cause of action or is incidental thereto.  Thus, injunction restraining the plaintiff from parting with possession of vacant portion of the disputed premises to the purchaser until the disposal of the appeal may be granted.  Against whom injunction may be issued : ● An injunction may be issued only against a party. It can not against a stranger or a third party. ● It also cannot be issued against a court or judicial officer . ● Normally, injunction can be granted against persons within the jurisdiction of the court concerned.  Nature of the relief : ● The relief of temporary injunction is an equitable relief and it is not granted where the person applying for temporary injunction does not come with clean hands.  A dishonest litigant loses his remedy when he is guilty of misrepresentation or concealment of material facts. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● Temporary injunction shall not be granted in favour of a person in unauthorised possession.  But where the applicant has been in possession of the property in suit for sometime and claims title on the basis of some documents, the question whether he is a trespasser will be decided at the trial. ● Injunction will not be granted in support of illegal or unauthorized act. ● The court may also refuse temporary injunction on the ground of delay, laches.  Considerations : The court is to take into consideration the effect of issuing temporary injunction on third party. ● eg where the plaintiff is a regular supplier of hospital goods to the Government,  but its registration was not renewed on account of failure of the plaintiff to comply with certain formality  as a result of which the Government invited open tenders and tenders from certain other suppliers were offered  and the plaintiff filed a suit and obtained interim injunction restraining the Government from accepting other tenders,  Here, the High Court set aside the order of injunction holding that • the interest of other suppliers who submitted tenders for supplying goods cannot suffer for no fault of their own • and by granting injunction the court cannot put the other intending suppliers to great inconvenience.  Discretion of the Court : ● According to section 22 of Specific Relief Act, the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so;  but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. ● The grant of temporary injunction is discretionary with the court and a party cannot get the relief as a matter of right. ● It shall not be granted merely because it is lawful to do so. ● It is a power of extraordinary nature and the court is to exercise the power with caution and great circumspection. ● The court shall grant the relief only when it is satisfied that the applicant will suffer irreparable loss or injury if the other party is not restrained as prayed for. ● Care shall be taken that the judicial proceedings cannot be used to protect or perpetuate a wrong committed by a person who approaches the court. ● The same consideration applies when the other party applies for vacating the interim relief granted by the court. The discretion has to be exercised on sound CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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judicial principles and not arbitrarily. ✔ Permanent Injunction : Perpetual Injunction : Sec 54 to 57 of the Specific Relief Act  According to Section 53 of the Specific Relief Act, a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; ● the defendant is thereby perpetually enjoined from assertion of a right, or from the commission of an act which would be contrary to the rights of the plaintiff.  The principles governing the grant of perpetual injunction are also applicable in respect of passing of orders of temporary injunction. ● If in a suit a decree of perpetual injunction cannot be granted, no temporary injunction should ordinarily be granted under this Order in that suit. ● eg where a building contractor whose services had been terminated is not entitled to a decree of specific performance of his contract of employment as it is one based on personal skill, no temporary injunction can be issued in such a case.  According to Section 54 of the S.R. Act, subject to the other provisions contained in, or referred to by this chapter, ● a perpetual injunction may be granted to prevent the breach of obligation existing in favour of the applicant, whether expressly or by implication.  When such obligation arises from contract the court shall be guided by the rules and provisions contained in the chapter II of this Act. ● i) Contracts which may specifically be enforced; and ● ii) Contracts which can not specifically be enforced.  Sec 56(d) of the Specific Relief Act : No injunction can be issued when it will have the effect of interfering with the public duties of any department of the Government.  When does courts grant permanent injunction ? When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunctions in the following cases :● a) Where the defendant is trustee of the property for the plaintiff.  Illustration : A trustee threatens a breach of trust. • His co-trustees if any should and the beneficial owner may sue for an injunction to prevent the breach. ● b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;  Illustration : In the course of A’s employment as a vakil, certain papers belonging to his client, B come into his possession. A threatens to make this papers public, or to communicate its contents to a stranger. • B may sue for an injunction to restrain A from so doing. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● c) where the invasion is such that pecuniary compensation would not afford adequate relief;  Illustration : A, is B’s medical adviser. He demands money for which B declines to pay. A then threatens to make known effect of B’s communications to him as a patient. • This is contrary to A’s duty and B may sue for an injunction to restrain him from so doing. ● d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.  Illustration : A pollutes the air with smoke so as to interfere materially with the physically comfort of B and C, who carry on business in a neighboring house. • B and C may sue for an injunction to restrain the pollution. ✔ Mandatory Injunction :  Section 55 of the S. R. Act– ● When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing.  The court may in its discretion grant an injunction to prevent the breach complained of, and also to compel the performance of the requisite act. ● Illustration : A, by new buildings, obstructs lights to the access and use of which B has acquired a right under the Limitation act, 1908.  B may obtained an injunction, not only to restrain A from going on with the buildings, but also to pull down so much of them as obstructs B’s light. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain in detail the Appointment, Duties and Powers of the Receiver. (Apr-2016) ✔ Write explanatory note : Provisions relating to appointment, Powers and duties of a receiver. (Dec-2015) ✔ Write short notes : Receiver (Nov-2012) ✔ Explain : Appointment of the Receiver. (Nov-2014) ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm ✔ Order 40 of CPC provides for appointment of receiver :  Rule 1 : Appointment of receivers  Rule 2 : Remuneration  Rule 3 : Duties CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Rule 4 : Enforcement of receiver’s duties  Rule 5 : When Collector may be appointed receiver ✔ Meaning of Receiver :  Receiver, is an independent, impartial party ● appointed by a court to receive, manage, and preserve  (1) a disputed property which is the subject matter of a court case, pending final disposition of the lawsuit, or  (2) an endangered property for the benefit of those who are entitled to it.  The court exercises its discretionary power while appointing a receiver.  Normally, the receiver is an officer of court and who is responsible for good faith and reasonable diligence.  A court if it is satisfied that it would be just and convenient to do so, ● can appoint a receiver in a case, even without an application from the party concerned.  If any loss occurs to the property entrusted to the receiver, out of his/her negligence or dishonest execution of trust, ● he/she shall be liable for damages. ✔ Appointment of Receiver : O40 R1 :  Where it appears to the Court to be just and convenient, the Court may by order– ● (a) appoint of a receiver of any property, whether before or after decree; ● (b) remove any person from the possession or custody of the property: ● (c) commit the same to the possession, custody or management of the receiver; and ● (d) confer upon the receiver all such powers,  as to • bringing and defending suits • for the realization, management, protection, preservation and improvement of the property, • collection of the rents and profits thereof, • application and disposal of such rents and profits, and the execution of documents as the owner himself has,  or such of those powers as the Court thinks fit. ✔ Remuneration of Received : O40 R2 :  The Court may by general or special order fix the amount to be paid as remuneration for the services of the receiver. ✔ Duties of Receiver : O40 R3 :  Every receiver so appointed shall– CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● (a) furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property; ● (b) submit his accounts at such periods and in such form as the Court directs; ● (c) pay the amount due from him as the Court directs; and ● (d) be responsible for any loss occasioned to the property by his wilful default or gross negligence. ✔ Enforcement of receiver’s duties : O40 R4 :  Where a receiver– ● (a) fails to submit his accounts at such periods and in such form as the Court directs, or ● (b) fails to pay the amount due from him as the Court directs, or ● (c) occasions loss to the property by his wilful default or gross negligence;  the Court may direct his property to be attached and may sell such property, ● and may apply the proceeds to make good any loss occasioned by him. ✔ When Collector may be appointed receiver : O40 R5 :  Where the property is land paying revenue to the Government, ● and the Court considers that the interests of those concerned will be promoted by the management of the Collector,  the Court may, with the consent of the Collector, appoint him to be receiver of such property. ✔ Duration for which a Receiver can be appointed :  No provision has been made in the Code of the Civil Procedure regarding the duration of appointment of Receiver.  In Hira Lal Patni v. Loon Karan Sethiya, AIR 1962 SC 21, SC has observed :● (i) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment; ● (ii) if a receiver is appointed in a suit without his tenure being expressly defined, he will continue to be receiver till he is dis-charged; ● (iii) even after the final disposal of the suit as between the parties to the litigation,  though Receiver's functions are terminated, he would still be answerable to the Court as its officer till he is finally discharged. ● (iv) the court has ample power to continue the Receiver even after the final decree if the exigencies of the case so required; ✔ In Union of India v. Heera Devi and another, AIR 1952 SC 765 :  The decree holder, a lady, had obtained a money-decree against one Ram Grahit Singh, a retired Head clerk in the dead letter office.

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 In 1949, a Receiver was appointed for collecting the monies standing to the credit of the judgment-debator in the Provident Fund with the postal authorities.  The Union of India intervened for setting aside the order of appointment of Receiver.  Supreme Court allowing the appeal of Union of India held that, ● A receiver cannot be appointed in execution of a decree in respect of a compulsory deposit in a Provident Fund of the judgment-debtor. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Imposition of interest and costs. ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm ✔ Intro :  Question of imposing costs in Civil proceeding is entirely on the discretion of the court.  Rules as to costs is subject to provisions of Code of Civil Procedure. ✔ KINDS OF COSTS :  The Code of Civil Procedure provides for four kinds of costs: ● (1) General costs - Section 35 ● (2) Miscellaneous costs - Order 20A ● (3) Compensatory costs for false or vexatious claims or defences - Section 35A ● (4) Costs for causing delay - Section 35B ✔ (1) General costs : Section 35 :  Object ● Section 35 deals with general costs. ● The object in awarding costs to a litigant is to secure to him the expenses incurred by him in the litigation. ● It neither enables the successful party to make any profit out of it nor punishes the opposite party.  Principles : ● The primary rules in respect of award of general costs are as under : ● (i) Costs are in the discretion of the court. The said discretion, however, must be exercised on sound legal principles. ● (ii) Normally, costs should follow the event and the successful party is entitled to costs unless there are good grounds for depriving him of that right. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Even a successful party may be deprived of the costs if he is guilty of misconduct or there are other reasons to do so.  u/s 34(2), when the court orders that costs should not follow the event, it must record reasons for doing so. ✔ (2) Miscellaneous costs : Order 20A :  O20A makes specific provision with regard to the power of the court ● to award costs in respect of certain expenses incurred in giving notices, typing charges, inspection of records, producing witnesses and obtaining copies. ✔ (3) Compensatory costs : Section 35A :  Object : ● Section 35A provides for compensatory costs. ● This section is an exception,  to the general rule on which Section 35 is based; viz. that • "costs are only an indemnity, and never more than indemnity". ● This section is intended to deal with those cases in which Section 35 does not afford sufficient compensation in the opinion of the court. ● Under this provision, if the court is satisfied that the litigation was inspired by vexatious motive and altogether groundless, it can take deterrent action. ● This section applies only to suits and not to appeals or to revisions.  Conditions : ● The following conditions must exist before this section can be applied :  (1) the claim or defence must be false or vexatious ;  (2) objections must have been taken by the other party that the claim or defence was false or vexatious to the knowledge of the party raising it ; and  (3) such claim must have been disallowed or withdrawn or abandoned in whole or in part. ● The maximum amount that can be awarded by the court is Rs 3000. ✔ (4) Costs of causing delay : Section 35B :  Section 35-B is added by the Amendment Act of 1976.  It is inserted to put check upon the delaying tactics of the litigating parties.  It empowers the court to impose compensatory costs on the parties who are responsible for causing delay at any stage of the litigation.  Such costs would be irrespective of the ultimate outcome of the litigation. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain in detail the provisions relating to suit by or against the Government with CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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decided Cases. (Nov-2011) ✔ What are the procedural requirements for suits by or against Government ? (Nov2012, Oct-2013) ✔ Discuss the provisions relating to the suit by or against the Government with necessary cases. (Nov-2014) ✔ Explain in detail the provisions relating to suit by or against the “Government” with case laws. (Apr-2016) ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm   Sections 79 to 82 and Order 27 of the Civil Procedure Code, deal with procedure in any suit brought by or against Government or Public Officer. ✔ NOTICE :  Section 80 C.P.C provides for giving of notice prior to filling of suit against Government or Public officer.  Accordingly, no suit shall be instituted against Government or Public officer ● in respect of any act purporting to be done by him in his official capacity ● until expiration of two months next after giving notice in writing has been delivered to Government or to such public officer.  In Bihari Choudhary v. State of Bihar AIR 1981 SC 1043, Supreme Court observed, ● "---- Section has been enacted as a measure of public policy with the object of ensuring that before a suit against Government of Public officer is instituted in the court,  the Government or Public officer concerned is afforded an opportunity to scrutinize the claim in respect of which the suit is proposed to be filed  and if it is found to be just claim, to take immediate action and avoid unnecessary litigation."  Notice under Section 80 should contain ● (a) Name, description and place of residence of plaintiff, (b) a statement of cause of action, (c) Statement of relief claimed, (d) Any other important information.  Sec-80(2) provides that, ● a suit may be instituted with the leave of court  for obtaining urgent or immediate relief claimed against Government of Public officer in his official capacity  without serving statutory notice. ● But in such case court shall not grant relief in the suit whether interim or CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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otherwise  except after giving to Government of Public officer as the case may be a reasonable opportunity of showing cause in respect of relief claimed.  Order 27 C.P.C provides regarding procedure to be followed in such suit.  This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Suits by aliens and by or against foreign rules or ambassadors (ss8387A). ANSWER : ✔ Refer :  This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Suits relating to Public nuisance (ss 91-93). ANSWER : ✔ Refer :   This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Suits by or against firm. ANSWER : ✔ Refer :  This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

➔ Discuss : Legal Aid under CPC. ✔ Explain the provisions of suit by indigent persons under the Civil Procedure Code. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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(Nov-2014) ANSWER : ✔ Refer :  http://shodhganga.inflibnet.ac.in/bitstream/10603/12650/10/10_chapter%206.pdf  http://www.legalserviceindia.com/articles/legaut.htm ✔ Outline :  Intro  Distinction between legal aid in civil and criminal proceedings  Legal Aid under CrPC : ●  Legal Aid under CPC : ● Suits by Indigent Persons : ● Appeals by Indigent Persons : ● Position of Minor ✔ Intro :  A just society is the one where justice prevails throughout alike.  To have equal right to approach the court is rendered useless if the right can't be exercised. It is then, nothing more than a paper promise.  The rich and influential can approach the courts because they have means, but the poor have to face injustice simply because they have no money to hire a lawyer.  It is therefore in the interest of justice to establish a social order when the poor not only have the right but also the means to seek justice.  The idea of legal aid to the poor is, thus a step in this direction". ✔ Distinction between legal aid in civil and criminal proceedings : Legal Aid is essential irrespective of cases, whether it is criminal case or civil case, when a party to the case/suit is indigent, because audi alterm partem is one of the principles of natural justice, which cannot be departed from. However, following are some differences :  a) A person is invariably defending himself against the state in criminal proceedings, ● whereas in civil proceedings the person may very often be invoking the legal process for relief.  b) Disputes arising in criminal jurisdiction are bound by rigid rules of procedure. ● The problems of the civil legal system have inspired innovative methods of dealing with the problem of access to the system. It has inspired the growth of altemative dispute resolution mechanism.  c) In criminal cases, a skilled lawyer becomes a necessity for providing procedural fairness. Much of a criminal trial is taken up with issues of procedure and proof CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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which are beyond the grasp and understanding of the accused. ● With regard to participation of lawyers in the system, civil legal aid lends itself to co-option of paralegals that can be trained to provide help this area.  d) Accessibility of lawyers : In criminal cases involving clients held in custody would require lawyers to visit their clients to seek instructions. In practice, however, this does not easily happen because visits by lawyers to jails are infrequent and still made difficult by the rules in prison manuals. Hence, in criminal cases there is STRONG need for legal aid. ● In civil cases, litigants are free to choose and meet with their friends, relatives and lawyers to seek guidance.  e) In criminal proceedings, the Court is under obligation to provide all accused with a competent lawyer. Criteria for legal aid are not hard and fast. ● While in civil proceedings, there are three criteria namely, the economic status (means) test, the prima facie test and the interests of justice test, to determine eligibility for legal aid. ✔ Legal Aid under CrPC :  ✔ Legal Aid under CPC :  The Code of Civil Procedure, 1908 lays down the procedure for the courts of civil judicature.  The equality before law and the principle of equal standing is an essential principle of civil jurisprudence.  The Code of Civil Procedure also makes a provision for extending the benefit of legal aid to those who are poor and thereby incapable to engage the services of a counsel in such litigation and unable to pay the heavy amounts of court fees, which makes the procuring of civil rights more difficult for the poorest of the poor in a society.  Suits by Indigent Persons : ● -----> Short note : discussed in Module-1. ● An Indigent person is the one who is poor and cannot afford to pay the court fee. This kind of suits are also called as “Pauper Suits”. ● Order XXXIII of Code of Civil Procedure deals with suits by Indigent persons. ● When a suit is filed before a competent civil court, the party has to pay the prescribed court fee. If the suit is filed without the prescribed court fee, the suit is liable to be rejected. ● Definition : ORDER XXXIII CPC - SUITS BY INDIGENT PERSONS :  1 . Subject to the following provisions, any suit may be instituted by an indigent person.  Explanation I—A person is an indigent person,— CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• (a) if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or • (b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees.  Explanation II—Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.  Explanation III—Where the plaintiff sued in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.  1A . Inquiry into the means of an indigent person — • Every inquiry into the question whether or not a person is an indigent person shall be made, in the first instance, by the chief ministerial officer of the Court, unless the Court otherwise directs. ● In Moorti Shree Behari v. Premdas, AIR 1972 All. 287, held that  In the definition of “indigent person”, the word ‘Person’ not only refers to natural person, it is ALSO applicable to juristic person. ● In some cases, the plaintiff may not be able to pay the prescribed court fee due to poverty, etc. In such circumstances, to help such persons to protect their rights, the Civil Procedure Code, 1908 has provisions under Order XXXIII to provide an exemption from the court fee. ● The purpose of the provision is that,  neither party should evade the payment of court fee nor no genuine cause of litigant should fail for want of funds. ● This Order has been enacted to save triple purposes,  a) To protect the bonafide claims of indigent persons,  b) To safeguard the interest of revenue and  c) To protect the defendants right not to be harassed. ● Assigning a pleader :  Rule 9A (1) provides for the Court to assign a Pleader to an unrepresented indigent person.  Where a person who is permitted to sue as an indigent person, is not represented by a pleader the court may, if the circumstances of the case so require, assign a pleader to him. ● Rules for Selecting the Pleader :  Rule 9A (2) provides for making of rules for selecting the pleader.  The High Court may with the previous approval of the State Government, is CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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empowered to make rules providing for the mode of selecting pleaders which will be assigned to an indigent person. ● Indigent person as a defendant :  As per Rule 17 an indigent person can also figure as a defendant and he can also plead a set-off or counter-claim, may be allowed to set up such claim as an indigent person. ● Power to make rules :  Power of Government to make supplementary rules for free legal aid services Rule 18 of Order XXXIII further empowers the State to make supplementary provisions for extending legal aid benefit to the indigent persons.  The High Court also is empowered to make rules for carrying out the supplementary provisions made by the Central or State Government for providing free legal services to the indigent persons.  Such rules may include the nature and extent of legal services and also the conditions under which they may be made available and the agencies through which such services may be rendered among others.  Appeals by Indigent Persons : ● Order XLIV deals with appeals by Indigent persons. ● It is divided into three parts.  The first deals with who may appeal as indigent persons . As per the provision any person who is entitled to appeal but who is unable to pay the fee required under the memorandum of appeal may present an application accompanied with memorandum of appeal. Such person may be allowed to appeal as an indigent person in all matters including the presentation of such application.  The second part deals with granting of time by the court for payment of court fees. In case the application is rejected the court while rejecting the application may allow the applicant to pay the requisite court fee within such time as fixed by the court or extended by the court from time to time.  The third part deals with an inquiry whether an applicant is indigent person . If the government pleader or the other party disputes the ‘indigent’ status of a party, an inquiry into the same shall be held by the appellate court or under the orders of the appellate court by an officer of that court.  Position of Minor : ● A minor is entitled to sue as an indigent person,  if no property, movable or immovable, is found in his name. ● The court cannot take into consideration the properties standing in the name of minor's father or any near relation. ● The father or any near relation of the plaintiff has nothing to do with this case except as next friend. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● It is therefore; clear that the minors cannot be directed to pay the Court-fee under such circumstances. They may be treated as indigent persons. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Suit of Mortgage. ANSWER : ✔ Refer :  This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Interpleader suits. ANSWER : ✔ Refer :  This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Suits relating to public charities. ANSWER : ✔ Refer :  This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Summary Suits and other special suits. ✔ Write in detail the provisions of summary proceedings in a civil suit with decided cases. (Nov-2011) ✔ Write explanatory note : Provisions relating to summary procedure. (Dec-2015) ✔ Explain in detail the provisions relating to suit of summary proceedings with case laws. (Apr-2016) ANSWER : ✔ Refer :  https://en.wikipedia.org/wiki/Summary_(law)  https://www.scribd.com/doc/154007184/civil-procedure-code-1908 CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ Intro :  Order 37 of the Civil Procedure Code provides for the summary procedure.  The provision has been made in order to prevent the unreasonable obstruction laid down by the defendant, who has no defence.  Unlike other civil suits, the trial in summary suits begins after the court grants leave to the defendant to contest the suit.  The court dealing with summary suits can pass the judgment in the favour of the plaintiff if ● the defendant has not applied for leave to defend ● or if such application has been made but refused, ● or the defendant who is permitted to defend fails to comply with the conditions on which the leave to defend was granted  The important feature of “summary suit” is that here the Defendant is not allowed to defend the suit, unless he takes the permission from court.  Defendant is allowed to defend himself only if according to the affidavit filed by him; it is must for the plaintiff to prove charges against him.  If by affidavit by Defendant, it appears that he has no defence, then court will decline him the permission and pass necessary orders in favour of plaintiff. ✔ Order-37 Rule-1(1) : Scope of O-37 : Courts and classes of suits to which the Order is to apply :  (1) This Order shall apply to the following Courts, namely,—  (a) High Courts, City Civil Courts and Courts of Small Causes ; and  (b) other Courts: ● Provided that in respect of the Courts referred to in clause (b),  the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper,  and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper. ✔ O-37 R-1(2) : Kinds of Summary Suits :  1. Suits upon bills of Exchanges, hundies or promissory notes;  2. Any suit filed by the plaintiff for recovery of a debt / money payable by the defendant according to a written contract,  3. In case of an enactment wherein the amount to be recovered is a fixed amount of money, or a debt other than a penalty, or  4. A guarantee, where the claim against the principal is in respect of a debt or for money only CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ O-37 R-2 : Institution of Summary Suits :  Order 37 rule 2 deals with the institution of summary suits.  Such suit may be instituted by presenting a plaint which shall contain ● 1. a specific averment to the effect that the suit is filed under this Order; ● 2. that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; ● 3. the following inscription, immediately below the number of the suit in the title of the suit, namely:-”(Under Order XXXVII of the Code of Civil Procedure,)” ✔ O-37 R-3 : Procedure for the appearance of defendant :  Order 37; rule 3 prescribes the mode of service of summons etc. and leave to defend.  The defendant is not entitled to defend the suit unless he enters an appearance within 10 days from the service of summons.  Such leave will be granted only if the affidavit filed by the defendant discloses such facts as may be deemed sufficient to entitle him to defend.  Such leave may be granted to him unconditionally or upon such terms as may appear to the court or judge to be just.  Leave to defend shall not be refused unless the Court is satisfied that ● the facts disclosed by the defendant do not indicate that he has a substantial defence to raise ● or that the defence intended to be put up by the defendant is frivolous or vexatious: ● The part of the amount claimed by the plaintiff and admitted by the defendant is not deposited by him in the Court.  The court then pronounces the judgement and passes a decree. Under special circumstances, the Court may, after decree, set aside the decree and if necessary stay or set-aside the execution and may give leave to the defendant to appear and to defend the suit. ✔ O-37 R-4 : Power to set aside decree :  After decree the Court may, under special circumstances, ● set aside the decree, ● and if necessary stay or set aside execution, ● and may give leave to the defendant to appear to the summons and to defend the suit, ● if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit. ✔ O-37 R-5 : Power to order bill, etc., to be deposited with officer of Court :  In any proceeding under this Order the Court may order the bill, hundi or note on CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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which the suit is founded to be forthwith deposited with an officer of the Court, ● and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof. ✔ O-37 R-6 : Recovery of cost of noting non-acceptance of dishonoured bill or note :  The holder of every dishonoured bill of exchange or promissory note ● shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment, ● as he has under this Order for the recovery of the amount of such bill or note. ✔ O-37 R-7 : Procedure in suits :  Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner. ✔ Difference Between Summary Suit and Ordinary Suit :  1. In the ordinary suit the defendant is entitled to defend the suit as of right. But in a summary suit  he is not entitled for the same except with the leave of the court.  2. In an ordinary suit the decree cannot be set aside by the trial court except in review. But in the  summary suit the trial court may set it aside under special circumstances  3. The summary suit must be brought within 1 year from the date on which the debt becomes  due and payable, whereas the period of limitation for suits for ordinary cases under negotiable  instrument is 3 years. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Execution of Decree (Sec.52-54) : Concept, General Principles, Procedure & Powers. ✔ Discuss about various modes of execution of decree and state the powers of court executing a decree. (Dec-2015) ✔ "A Court executing a decree cannot go beyond a decree." Discuss. (Nov-2014) ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm ✔ Intro :  Term `Execution' has not been defined in Code of Civil Procedure.  However expression "Execution" means, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● enforcement of decrees and orders by the process of the court, so as to enable the decree holder to realise the fruits of the decree. ✔ Which courts may execute decree ?  Sec-38 : ● A decree may be executed either by the court which passed it  or by the court to which it is sent for execution.  Sec-37 : ● Following courts fall within the expression "Court which passed the decree" : (i) Court of first instance by which decree is actually passed;  (ii) The court of first instance in the case of decree passed by appellate court;  (iii) Where the court of first instance has ceased to exist the court which would have jurisdiction to try the suit at the time of execution;  Thus, Section 37 has given very wide definition of “Court which passed the decree” ● for the purpose of facilitating the decree holder to realise the fruits of decree passed in his favour. ✔ Application for execution : [Order 21 Rule 10 and Rule 11]  The execution proceedings can be started only after the delivery of judgment by the court and preparation of the decree.  All proceedings in execution are started by an application for execution, ● which can be oral or written.  O21 R10 : ● where the holder of a decree desires to execute it,  he shall apply to the court which passed the decree  or to the officer (if any) appointed in this behalf, ● where the decree has been sent under the provisions herein before contained to another court then,  decree holder shall apply to such court or to the proper officer thereof.  Oral application for execution : ● O21 R11(1) :  Where a decree is for the payment of money the court may, • on the oral application of the decree-holder at the time of the passing of the decree, • order immediate execution thereof by the arrest of the judgment debtor, prior to the preparation of a warrant, • provided judgment debtor is within the precincts of the court.  Written application for execution :

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● O21 R11(2) :  Save as otherwise provided by R11(1), • every application for the execution of a decree shall be in writing signed and verified by the applicant • and shall contain particulars as provided in R11(2).  Application for arrest and attachment of properties of judgment debtor : ● O21 R11A, R12 and R13 deal with certain specific applications for execution.  Rule 11-A provides that • where an application is made for arrest & detention of judgment debtor, • it shall state, or be accompanied by an affidavit, stating the grounds on which arrest is applied for.  Rule 12 provides for application for attachment of movable properties not in possession of judgment debtor, • which require decree holder to attach with application, • an inventory of properties and their accurate descriptions.  Rule-13 provides for application for attachment of immovable properties belonging to judgment debtor, • which requires that • application shall contain full description of immovable properties with boundaries etc for proper identification • and also the proof of judgment debtor's ownership or his share in it. ✔ Notice to show cause against execution in certain cases :  Notice of execution is not to be issued to the party against whom execution application is filed in every case but only in certain cases mentioned in O21 R22.  O21 R22 : ● Show cause notice is to be issued in the following cases : (i) Where an application for execution is made • more than two years after the date of decree;  (ii) Where an application for execution is made, • against the legal representative of a party to the decree ,  (iii) Where an application for execution is made • against the assignee or receiver in insolvency where the party to the decree has been adjudged to be an insolvent. ✔ “A Court executing a decree cannot go beyond a decree” :  One of the most important Rule regarding the "Execution" is that : ● It must take the decree as it stands and execute according to its terms.

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 Thus, ● The court which executes the decree, has no power to vary or modify the terms. ● It has no power to question its legality or correctness. ● No inquiry into its regularity or correctness can be permitted in such an execution proceeding.  Limitations on the court executing a decree : ● Sec-47 : Which questions are to be determined by court executing the decree?  (1) All questions, • arising between the parties to the suit (or their representatives) in which the decree was passed and • relating to execution, discharge or satisfaction of decree • shall be determined by court executing the decree not by a separate suit.  (2) (* * * *)  (3) Where a question arises as to whether any person is or is not representative of a party,  Explanation I • For the purposes of this Section, • a plaintiff whose suit has been dismissed and • a defendant against whom a suit has been dismissed • are parties to the suit.  Explanation II • (a) For the purposes of this Section, • a purchaser of property at a sale in execution of a decree • shall be deemed to be a party to the suit in which the decree is passed; • (b) all questions relating to the delivery of possession of such property • to such purchaser or his representative • shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree. ● The underlying object of Sec-47 provision is  to provide cheap and expeditious remedy for determination of certain questions in execution proceedings without recourse to a separate suit and  to prevent needless and unnecessary litigation. ● Thus, we can say that, the executing court can go into all question between the parties relating to execution, discharge or satisfaction of decree, • and such court has no power to amend, modify or substitute a decree  or in other words, executing court can not go behind the decree. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Exception : ● Although An executing court cannot go behind the decree nor can it question its legality or correctness.  where the decree sought to be executed is nullity for the lack of inherent jurisdiction in court passing it, its invalidity can be set up in an execution proceeding. ● ie the executing Court can entertain an objection that the decree is nullity and can refuse to execute the decree. ● In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, it was observed :  It is a fundamental principle well established that • a decree passed by a court without jurisdiction is a nullity, • and that is invalidity could be set up • whenever and wherever it is sought to be enforced or relied upon • even at the stage of execution and even in collateral proceedings. This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : (i) Enforcement, (ii) arrest and Detention (Sec. 55-59), (iii) Attachment (Sec. 60-64), (iv) Sale (Sec.65-97), (v) Delivery of Property, (vi) Stay of Execution. ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm ✔ (i) Enforcement :  ✔ (ii) Arrest and Detention in execution of a decree (Sec. 55-59) :  One of the modes of executing decrees is arrest and detention in civil prison of the judgment-debtor.  Sections 55 to 59 and Rules 37 to 41 of Order 21 deal with arrest and detention of the judgment-debtor in civil prison.  Sec-55 provides that ● A judgment debtor may be arrested in execution of a decree  at any hour and on any day,  and shall, as soon as practicable, be brought before the court,  and his detention may be • in the civil prison of the district in which the court ordering the detention is situate, • or where such civil prison does not afford suitable accommodation, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• in any other place which the State Government may appoint for the detention of persons ordered by the courts of such district to be detained. ● Provided :  (i) for the purposes of making an arrest under this section, • no dwelling house shall be entered after sunset and before sunrise;  (ii) no outer door of a dwelling house shall be broken open • unless such dwelling house is in the occupancy of the judgment debtor • and he refuses, or in any way prevents access thereto, • but when the officer authorised to make the arrest has duly gained access to any dwelling house, • he may break open the door of any room in which he has reason to believe the judgment debtor is to be found.  (iii) if the room is in the actual occupancy of a woman who is not the judgment-detor and who, according to the customs of the country, does not appear in public, • the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, • and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, • may enter the room for the purpose of making the arrest.  (iv) where the decree in execution of which a judgment debtor is arrested, • is a decree of the payment of money • and the judgment debtor pays the amount of the decree • and the costs of the arrest to the officer arresting him, • such officer shall at once release him.  Discretionary power to permit judgment-debtor to show cause against detention in prison : ● O21 R37(1) :  Where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment debtor who is liable to be arrested in pursuance of the application, • the Court shall, instead of issuing a warrant for his arrest, • issue a notice calling upon him to appear before the court on a day to be specified in the notice • and show cause why he should not be committed to the civil prison.  Provided that such notice shall not be necessary • if the court is satisfied that CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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• the judgment debtor is likely to abscond • with the object of delaying the execution of the decree.  O21 R37(2) : ● Where appearance is not made in obedience to the notice,  the court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment debtor.  Sec-55(3) : ● Where a judgment debtor is arrested in execution of a decree for the payment of money and brought before the court,  the court shall inform him that he may apply to be declared an insolvent, • and that he may be discharged if he has not committed any act of bad faith regarding the subject of the application  Sec-56 : ● A woman shall not be arrested in execution of decree in payment of money .  Sec-57 : ● The State Government may fix scales, • graduated according to rank, race and nationality  of monthly subsistence allowance payable by the decree holder for the subsistence of the judgment debtor :  Period of Detention of judgment debtor : ● Sec-58 :  Every person detained in the civil prison in execution of a decree shall be so detained • (a) where the decree is for the payment of a sum of more than Rs 1,000/-, • for a period not exceeding three months, and • (b) where the decree is for the payment of Rs 500/- to Rs 1,000/-, • for a period not exceeding six weeks.  Provided that he shall be released from such detention before the expiration of the said period of detention • (i) On the amount mentioned in the warrant for his detention being paid, or • (ii) On the decree against him being otherwise fully satisfied, or • (iii) On request of person on whose application he has been so detained, or • (iv) On omission to pay subsistence allowance by person on whose application he was so detained  Provided also that he shall not be released from such detention under clause (ii) or (iii) without the order of the court. ✔ (iii) Sale (Sec.65-97) : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 ✔ (iv) Delivery of Property :  ✔ (v) Stay of Execution :  This is Module-2. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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Module-3

3) Appeals, Review, Reference, Revision and Miscellaneous : 3.1) Appeals : Concept and General Provisions 3.1.1) Appeals from original decree 3.1.2) Appeals from appellate decree 3.1.3) Appeals from orders 3.1.4) Appeal to the Supreme Court 3.1.5) First Appeal and Second Appeal 3.2) Review, Reference and Revision 3.3) Miscellaneous Provisions : 3.3.1) Transfer of cases 3.3.2) Restitution 3.3.3) Caveat 3.3.4) Inherent powers of courts 3.4) Law Reform: Law Commission on Civil Procedure Amendments GO TO CONTENTS. This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 MODULE-3 QUESTIONS : ➔ Explain with decided cases the Provision of “Appeal" and "Revision" under the Code of Civil Procedure. (Nov-2011) ✔ Discuss : Appeals from original decree. ✔ Discuss : Appeals from appellate decree. ✔ Discuss : Appeals from orders. ✔ Discuss : Appeal to the Supreme Court. ✔ Discuss : First Appeal and Second Appeal. ✔ Discuss : “Right to appeal is a discretionary right”.  Has an aggrieved party unlimited right to prefer an appeal against orders by a Court ? (Nov-2012) ✔ Explain in detail the provisions relating to an Appeal. (Oct-2013) ✔ Explain : Provisions of Appeal. (Nov-2014) ➔ Discuss : (i) Review, (ii) Reference, (iii) Revision. ✔ Write explanatory note : Revision and Review (Dec-2015) CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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➔ Differentiate : Appeal, Review, Reference and Revision. ➔ Discuss : Transfer of cases. ➔ Discuss : Restitution of appeal, review, reference, revision. ➔ Write short notes : Caveat. (Nov-2012, Oct-2013) ✔ Explain : Caveat. (Nov-2014) ➔ Discuss - "Inherent Powers of the Court". (Oct-2013) ➔ Discuss : Law Reform: Law Commission on Civil Procedure Amendments . GO TO CONTENTS. This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 MODULE-3 ANSWERS : ➔ Explain with decided cases the Provision of “Appeal" and "Revision" under the Code of Civil Procedure. (Nov-2011) ✔ Discuss : Appeals from original decree. ✔ Discuss : Appeals from appellate decree. ✔ Discuss : Appeals from orders. ✔ Discuss : Appeal to the Supreme Court. ✔ Discuss : First Appeal and Second Appeal. ✔ Discuss : “Right to appeal is a discretionary right”.  Has an aggrieved party unlimited right to prefer an appeal against orders by a Court ? (Nov-2012) ✔ Explain in detail the provisions relating to an Appeal. (Oct-2013) ✔ Explain : Provisions of Appeal. (Nov-2014) ANSWER : ✔ Refer :  https://www.scribd.com/doc/154007184/civil-procedure-code-1908  https://blog.ipleaders.in/indian-civil-procedure-code/  https://blog.ipleaders.in/civil-procedure-code-quick-peak/  https://www.lawfinderlive.com/bts4/cpc.htm ✔ Outline :  Elements of appeal  What Courts to hear appeals :  Powers of appellate Court :  Kinds of Appeal : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 (i) Appeals from original Decrees : First Appeals (Section 96-99, Order 41) :  (ii) Appeals from appellate decree : Second Appeals (Section 100-103, Order 42) :  (iii) Appeals from Orders (Section 104-106, Order 43, Rule 1-2) :  (iv) Appeals to Supreme Court (Sections 109 and 112, Order 45) :  Right to appeal is a discretionary right : All orders made by courts are not appealable : ✔ Intro :  The term ‘appeal‘ is not defined in Civil Procedure Code, 1908.  When a suit is heard by the trial court, the trial court enquires the issue, arrives at a conclusion and pronounces a decree either in favor of the plaintiff or the defendant.  For the purpose of safeguarding citizens from the possible loopholes in the judicial process, and to give the losing party an opportunity to be heard by a reviewing body, ● there is a provision for appeal in our judicial system.  Ordinarily appeal means a complaint made to a superior court against the decision of a subordinate court with the object of getting such order modified or set-aside or reversed.  An appeal is the judicial review of the decision of a lower Court by a higher Court. The higher Court will re-examine the case and the lower Court’s judgement and base its own order on this examination.  An appeal is always made to a higher authority, a reviewing body which will look into the matter on certain points and decide whether the adjudication previously made should be reversed or modified or retained.  Appeal is the continuation of the original proceedings before a superior court . ✔ Elements of appeal : The three basic elements of an appeal are : ● A decision ● An aggrieved person ● A reviewing body.  An appeal may do three things : ● Reverse the order ● Modify the order ● Dismiss the order ✔ What Courts to hear appeals :  Sec-106 : Where an appeal from any order is allowed, ● it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made,

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● or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court. ✔ Powers of appellate Court :  The general rule is that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary. But the appellate court has discretion to allow additional evidence.  Sec-107 : (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power– ● (a) to determine a case finally; ● (b) to remand a case; ● (c) to frame issues and refer them for trial; ● (d) to take additional evidence or to require such evidence to be taken.  (2) Subject as aforesaid, ● the Appellate Court shall have the same powers ● and shall perform as nearly as may be the same duties ● as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. ✔ Kinds of Appeal :  There are four classes of appeals, provided under the Civil Procedure Code : ● (i) Appeals from original Decrees : First Appeals (Section 96-99, Order 41) ● (ii) Appeals from appellate decree : Second Appeals (Section 100-103, Order 42) ● (iii) Appeals from Orders (Section 104-106, Order 43, Rule 1-2) ● (iv) Appeals to Supreme Court (Sections 109 and 112, Order 45) ✔ (i) Appeals from original Decrees : FIRST Appeals (Section 96-99, Order 41) :  The characteristics of a first appeal may be listed as follows : ● it lies against the decree passed by the Court exercising original jurisdiction. ● it may be filed in a superior Court which may or may not be the High Court. ● it may be made on a question of fact, law or a mixed question. ● Letters Patent Appeal (LPA) may lie against the judgment of a single Judge to a division bench.  Sec-96 : ● as per Sec-96(1), appeal from a decree passed by a court exercising original jurisdiction lies  ONLY IF some court is authorised to hear such appeal. ● as per Sec-96(2), appeal certainly lies in case of ex-parte decree. ● as per Sec-96(3), NO appeal lies in case of decree with consent.

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● as per Sec-96(4), NO appeal lies in case of decree passed by a Small Cause Court with suit value less than Rs 10,000/-.  Sec-97 : Appeal from final decree where no appeal from preliminary decree : ● IF a party aggrieved by a preliminary decree does not appeal from such decree,  he shall be precluded from disputing correctness of preliminary decree  in any appeal which may be preferred from the final decree.  Sec-98 : Majority opinion shall prevail in case appeal is heard by 2+ judges.  Sec-99 : " ● An appellate Court shall not reverse a decree on the ground of mis-joinder or non-joinder of parties, unless  there is non-joinder of a necessary party, or  it has affected the merits of the case or the jurisdiction of the Court, or  there has been a failure of justice. ✔ (ii) Appeals from appellate decree : SECOND Appeals (Sec 100-103, Order 42) :  A second appeal lies against the decree of the first appeal  A second appeal may be made only to the High Court  Restrictions exist on the second appeal because allowing new facts to be introduced, or new arguments to be raised would undermine the previous judicial processes. ● Therefore, the only grounds for a second appeal is that there is a substantial question of law.  Order 42 deals with procedure to be adopted in second appeal.  Illustration : ● Mani and Ratna were in a dispute over a contractual obligation.  Mani lost the case at the High Court appeal.  He went to the Supreme Court on second appeal and said that he had never signed the contract, introducing an issue about the facts. Hence, appeal is likely to be rejected on that ground.  There is no letters patent appeal in second appeal.  Definition : Sec-100 : ● (1) Save as otherwise expressly provided in this Code, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court,  if the case involves a substantial question of law. ● (2) An appeal may lie under this section  from an appellate decree passed ex parte. ● (4) Where the High Court is satisfied that a substantial question of law is CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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involved in any case,  it shall formulate that question ● (5) The appeal shall be heard on the question so formulated  and the respondent shall be allowed to argue that the case does not involve such question.  Meaning of substantial question of law : ● In Santosh Hazari v. Purushottam Tiwari (By L.Rs), AIR 2001 SC 965, SC observed,  Section 100 of Code as amended in 1976 restricts the Jurisdiction of High Court to Hear the Second Appeal only on `Substantial Question of Law involved in the case'.  Respondent is at liberty to show that substantial questions of law are not involved.  The phrase "Substantial Question of Law" means, • question of law which must be debatable, • not previously settled by law of land or binding precedent • and must have material bearing on the decision of the case, if answered either way.  Sec-100A : "No Further Appeal in Certain Cases" ● Notwithstanding anything contained in any letters patent for any High Court or in any other instrument having the force of law  where any appeal from an original or appellate decree or order is decided by a single judge of High Court, • no further appeal shall lie from the judgment and decree of such single Judge :  Sec-101 of C.P.C. lays down that no second appeal shall lie except on the ground stated in Sec-100 and Sec-100A.  Sec-102 : ● No second appeal shall lie from any decree,  when amount or value of subject matter does not exceed Rs 25000/-. ✔ (iii) Appeals from Orders (Section 104-106, Order 43, Rule 1-2) :  Section 104 (Appeals from Orders) and Order 43 of the CPC deals with such orders from which appeal lies.  Definition : Sec-104 : Orders from which appeal lies : ● (1) Appeal from orders would lie from following orders on ground of defect or irregularity in law – and from no other orders –  (a) An order for compensatory costs in respect of untrue or vexatious claims or defenses (Section 35A) CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 (b) An order under section 91 or 92 refusing leave to institute suit on public nuisances and other wrongful acts affecting the public  (c) In any suit in which • an arrest or attachment has been effected • or a temporary injunction granted under Section 95, • AND where the aggrieved feels that arrest or attachment is on insufficient grounds.  (d) An order inflicting a punishment of fine or arrest or detention, • except where such arrest or detention is in execution of a decree.  (e) any order from which an appeal is expressly allowed by rules:  However, no appeal shall lie from following orders – • any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed Rs 3,000/• from any order passed in appeal under section 100. ● (2) No appeal shall lie from any order passed in appeal under this section.  Sec-105 : Other orders : ● (1) Save as otherwise expressly provided,  no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction;  but, where a decree is appealed from, • any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. ● (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom,  he shall thereafter be precluded from disputing its correctness. ✔ (iv) Appeals to Supreme Court (Sections 109 and 112, Order 45) :  Order 45 C.P.C deals with procedure in appeal before Supreme Court.  Sec-109 : ● An appeal shall lies to Supreme Court,  from any judgement, decree or final order in a civil proceeding of High Court, if the High Court certifies :• (i) That the case involves a substantial question of law of general importance and • (ii) That the opinion of the High Court on said question needs to be decided CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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by Supreme Court.  Sec-112 : ● (1) Nothing contained in this Code shall be deemed–  (a) to affect the powers of the Supreme Court under Article 136 ( special leave to appeal) or any other provision of the Constitution, or  (b) to interfere with any rules made by the Supreme Court for the presentation of appeals. ● (2) Nothing herein contained applies to any matter of criminal proceedings in High Courts. ✔ Right to appeal is a discretionary right : All orders made by courts are not appealable :  Right of appeal is not a natural or inherent right attaching to litigation.  Such a right is given by the statute or by the Rules having the force of statute.  ✔ Summary :  Any person can bring in a suit of civil nature as it is an inherent right. However, an Appeal cannot be claimed as the inherent right and can be preferred only where it is expressly provided by the statute.  While an appeal may be a vital part of the judicial process, it is difficult to know till when the recursive appeal process may continue.  An appeal sometimes causes inevitable delays in the delivery of justice, but it provides a much-needed intervention in order to reverse or modify a wrong decision. GO TO MODULE-3 QUESTIONS. GO TO CONTENTS. This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : (i) Review, (ii) Reference, (iii) Revision. ✔ Write explanatory note : Revision and Review (Dec-2015) ANSWER : ✔ Refer :  https://blog.ipleaders.in/indian-civil-procedure-code/  https://blog.ipleaders.in/civil-procedure-code-quick-peak/ ✔ (i) Review : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Section 114 and Order XLVII of the Code of Civil Procedure, 1908 deals with the Review.  Review means consideration, inspection or re-examination of a subject or thing.  Sec-114 of CPC : ● Any person aggrieved by  a decree or order from which an appeal is allowed but not filed,  or a decree or order from which no appeal is allowed, ● can file a review petition in the same court which passed such decree or order on the following grounds :  1. When new and important matter or evidence is discovered which after the exercise of due diligence was not within his knowledge, or could not be produced by him at the time when the decree or order was passed;  2. When there is any mistake or error apparent on the face of the record;  3. When there is any other sufficient reason.  Accordingly, a Court may reconsider a decision given by the same court. But a court cannot review its decision Suo moto.  If there is a glaring omission or mistake or error by the judiciary, a review can be adopted in the case of such manifest error on the face of judgment. The review is at the discretion of the Court and is not a right of the party.  Explanation : ● The fact that  the decision on a question of law on which judgment of the court is based has been reversed or modified by subsequent decision of a superior court in any other case  shall not be a ground for the review of such judgement."  GROUNDS : ● O47 R1 says that Application for Review of Judgement may be made on any of the following grounds : (a) Discovery of new and important matter or evidence , which after the exercise of due diligence was not within his knowledge or could not be produced at the time when the decree was passed or made.  (b) Mistake or error, apparent on the face of record.  (c) Any other sufficient reason.  The Court may decide to review a case if : ● a party has tried to appeal a decree, but has not been allowed to do,  or where the appeal has been dismissed because it is barred by time,  or the decree was passed by an incompetent court.

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● an appeal was allowed but not preferred.  there is no bar on the right to appeal.  ie In case an appeal is preferred before a review THEN the review is not permitted. ● If the review is taken at the initial stage, then the appeal is allowed.  Note : ● If the review is granted and the order or decree is reversed, the appeal will lapse and vice versa. ● Example, the Kukrejas lost a case and decided to appeal it, but the Court told him that he would not be allowed to. They may apply to the Court for review of the matter. ✔ (ii) Reference :  Section 113 and Order XLVI of the Code of Civil Procedure, 1908 deals with reference.  Reference means referring a case to the higher court to seek the opinion of the higher court when there is a doubt in the question of law.  Sec-113 : ● A court, at any time before judgement, subject to such conditions as may be prescribed, ● may state a case and refer the same for the opinion of the High Court ● and High Court may make such order thereon as it thinks fit.  When a lower court has a doubt over a question of law, it may refer the same to the High Court for an opinion.  A hierarchy exists between the courts in matters of jurisdiction and position of law. For instance, the higher the court, greater is the ambit of jurisdiction.  The interpretation given to a law by a higher court becomes binding on the lower court.  A subordinate Court may state a case and refer it to the High Court for an opinion if there is a doubt over a question of law.  The conditions for the use of reference : ● It must be a pending suit or appeal in which the decree is not subject to appeal or a pending proceeding in execution of such decree ● A question of law or usage having force of law must arise. ● The Court must have a doubt as to a question of law.  A question of law are of two types : ● Doubts about the validity of the Act/ordinance/regulation itself :  as to whether it is compatible with the Constitution of India, and does not violate or take away any of the rights guaranteed under the Constitution or CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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any other law. There may also be other questions that amount to those dealing with the law. ● Other questions :  may include whether a law is applicable, or it is an ultra vires application of the law, or it may be a question of whether the law is being implemented in the right manner. ✔ (iii) Revision :  Section 115 of the Code of Civil Procedure, 1908 deals about Revision.  The Higher Courts have revision jurisdiction and can call for the record of any case which is already decided. This power is given for the efficient exercise of supervisory jurisdiction of Higher Courts.  The High Court may decide to revise any decisions taken by the lower courts under certain circumstances. CPC, u/s 115, empowers the High Court to entertain revision in any case decided in a subordinate Court.  Definition : Sec-115 : Revision : ● The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court  and in which no appeal lies thereto,  and if such subordinate Court appears• (a) to have exercised a jurisdiction not vested in it by law, or • (b) to have failed to exercise a jurisdiction so vested, or • (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.  However, this provision is only applicable where the order, if made in favour of the revisioner, would have finally disposed of the suit. Therefore, in the following cases, revision is not possible : ● In a suit for stay of proceedings. ● In a case which has provision for higher appeal. ● any order made or deciding an issue in the course of the suit.  For example, in a suit for divorce, the husband is troubled by the court’s order on maintenance and seeks to get the judgement revised to that extent. ● Here, this is an order made in the course of deciding the suit, and therefore, no such revision will be possible. This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Differentiate : Appeal, Review, Reference and Revision. ANSWER : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm ✔ (A) Difference between Appeal and Review :  1. An application for review lies to the same court, ● while an appeal lies to a superior court.  2. The grounds of appeal are wider than the grounds of review.  3. There is no second review provided in the Code of Civil Procedure, ● while there are provisions for second appeal in certain cases.  4. Appellate power enables the court to correct all errors committed by subordinate court. ● While scope of review is limited. ● In A.T. Sharma v. A.P. Sharma AIR 1979 SC 104 it was observed:  As a general rule where a litigant obtained a judgment in a court, • he is by law entitled, not to be deprived of fruits thereof without solid grounds. • Object of Review is • neither to enable the Court to write a second judgment • nor to give second inning to a party who has lost the battle because of his own negligence. ✔ (B) Difference between Appeal and Reference :  1. A right of appeal is a substantive right conferred by law ● while the power of reference is vested in the courts like HCs and SC.  2. An appeal is preferred to a superior court which need not necessarily be a HC. ● while reference is always made to the High Court, or SC  3. The grounds of appeal are wider ● than the grounds of reference.  4. An appeal is preferred after a decree or appealable order is passed by the court. ● while reference is made in a pending suit, appeal or execution proceedings in order to enable a court to arrive at a correct conclusion. ✔ (C) Difference between Appeal and Revision :  1. Appeal is a substantiuve right, in specified condition, given by statute, ● but revision is an entirely discretionary power of court.  2. Appeal is continuation of the proceedings, in effect the entire proceedings are before the appellate court and it has power to review findings of facts (evidence) subject to statutory limitations prescribed. ● but in the case of a revision whatever powers the revisional authority may or CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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may not leave, it has no power to revisit findings of facts (evidence) unless the statute expressly confers on it that power.  3. In case of appeal, an application must be made by the aggrieved party. ● But revision can be suo moto.  4. An appeal lies to a superior court from every original decree unless expressly barred, ● but, a revision lies only in the cases mentioned in Section 115 C.P.C., and to the High Court only.  5. An appeal abates if the legal representative of the deceased are not brought on record within the time allowed by law, ● while a revision may not abate and the High Court has a right to bring the proper parties before the court at any time. ✔ (D) Difference between Review and Reference :  1. In reference, the subordinate court refers the case to the High Court under Section 113 of the Code of Civil Procedure, ● while in review an application is made by the aggrieved party in the court which passed the order of judgement.  2. The Hcs & SC only can decide matters on reference ● while the power of review is to be exercised by the court which passed the decree or order.  3. Reference is made during the pendency of the suit, appeal or execution proceedings, ● while application for review is made to the court after a decree or order is passed. ✔ (E) Difference between Review and Revision :  1. The power of revision is exercised by the High Court and in some cases, by the District Court, i.e., the superior court, ● while the power of review is exercised by the court which passed the decree or order.  2. Revisional powers can be exercised only in cases in which no appeal lies, ● but review can be made even when appeal lies.  3. The ground for revision relates to jurisdiction, • i.e. want of jurisdiction, failure to exercise vested jurisdiction, or illegal or irregular exercise of the jurisdiction, ● while the grounds for review are  the discovery of new and important matter of evidence,  some apparent mistake or error on the face of the record  or any other sufficient reason. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 4. No appeal lies from an order passed in the exercise of revisional jurisdiction ● while the order following the review application is appealable. ✔ (F) Difference between Reference and Revision :  1. In reference, the case is referred to the High Court by a court subordinate to it as provided in Section 113 of the Code of Civil Procedure, ● while the revision application is moved by the party concerned or the revisional court can suomoto send for the case and examine the record.  2. The ground of reference are, doubt in respect of a question of law, ● while the ground for revision relates to jurisdiction, i.e., want of jurisdiction, failure to exercise jurisdiction vested in the court or its irregular exercise. This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Transfer of cases. ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/cpc.htm ✔ Intro :  Sections 22 to 25 of the Code of Civil Procedure lay down the provisions relating to transfer of a suit.  Sec-22 : ● where a suit may be instituted in any one of two or more courts and is instituted in one of such courts, ● any defendant after notices to the other parties, may at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, ● apply to have the suit transferred to another court, ● and the court to which such application is made, after considering the objections of the other parties, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed.  Section 23 of the Code of Civil Procedure further lays down in which court such application for transfer lies.  Sec-23 : ● (i) Where the several courts having jurisdiction are subordinate to the same appellate court, an application under section 22 shall be made to the appellate court. ● (ii) Where such courts are subordinate to different appellate courts, but to the same High Court, the application shall be made to the said High Court. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● (iii) Where such courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the court in which the suit is brought is situate.  Section 24 of the Code of civil Procedure deals with the general powers of transfer and withdrawal.  Sec-24 : ● On the application of any of the parties ● and after notice to the parties ● and after hearing such of them as desires to be heard, or of its own motion without such notice, ● the High Court or the District Court may at any stage  withdraw any suit, appeal or other proceedings before it • for trial or disposal to any court subordinate to it and competent to try or dispose of the same,  or, withdraw any suit, appeal or other proceeding pending in any court subordinate to it. ● In case of withdrawal, it can try or dispose of the same,  or transfer the same for trial or disposal to any court subordinate to and competent to try or dispose of the same  or re-transfer the same for trial or disposal to the court from which it was withdrawn.  Sec-24(3) : ● Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Judge Court ● and `proceeding' includes a proceeding for the execution of a decree or order.  Sec-24(5) : ● A suit proceeding may be transferred under this section from a Court which has no jurisdiction to try it.  Sec-25 : Power of Supreme Court to transfer suits etc. ● (1) On application of a party and after notice to the parties and after hearing such of them as desire to be heard,  the Supreme Court, may at any stage, if satisfied that an order under this Section, is expedient for the ends of justice,  direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil court in any other State. This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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➔ Discuss : Restitution of appeal, review, reference, revision. ANSWER : ✔ Refer :  This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Write short notes : Caveat. (Nov-2012, Oct-2013) ✔ Explain : Caveat. (Nov-2014) ANSWER : ✔ Refer :  http://www.legalservicesindia.com/article/article/caveat-petition-2124-1.html ✔ Intro :  A Caveat is a Latin term which means, 'let a person beware'.  The term originated in the mid 16th century.  In law, it may be understood as a notice.  It may simply be understood as a warning.  In the Civil Procedure Code of 1908 (hereinafter, the Code) it was inserted under Sec-148A by the recommendations of the Law Commission of India's 54th Report and was inserted by the CPC (Amendment) Act 104 of 1976. ✔ Section 148A of CPC :  A caveat petition is a precautionary measure which is undertaken by people usually when they are having a very strong apprehension that some case is going to be filed in the Court regarding their interest in any manner.  The word 'Caveat' is not defined in the Code.  In the case of Nirmal Chand v. Girindra Narayan, the Court had defined the word Caveat, wherein it said, ● A Caveat is a caution or warning given by a person to the Court, not to take any action or grant relief to the other side without giving notice to the caveator and without affording opportunity of hearing him.  Sec-148A : ● (1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court,  any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof. ● (2) Where a caveat has been lodged under sub-section (1), CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 the person by whom the caveat has been lodged (hereinafter referred to as the caveator) • shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made under sub-section (1). ● (3) Where, after a caveat has been lodged under sub-section (1),  any application is filed in any suit or proceeding,  the Court shall serve a notice of the application on the caveator. ● (4) Where a notice of any caveat has been served on the applicant,  he shall forthwith furnish the caveator, at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application. ● (5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period].  Essential ingredients of a caveat : ● 1. Who may lodge a Caveat? (Clause 1) :  Any person claiming a right to appear before the Court, • where an application is expected to be made or where an application has already been made • in a suit or proceeding instituted • in a suit or proceeding which is about to be instituted • May lodge a caveat thereof. It is substantive in a nature. ● 2. Duties of the Caveator (Clause 2) :  This clause is directive in nature. The person by whom the Caveat has been lodged is called a Caveator.  He shall, • Serve a notice of the Caveat by registered post, acknowledgement due • On the person by whom the application has been made • On the person by whom the application is expected to be made ● 3. Duty of the Court (Clause 3) :  After a Caveat has been lodged under Clause 1, • if any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the Caveator. • This clause is mandatory in nature. ● 4. Duties of the Applicant (Clause 4) : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 It is directive in nature and says that, where a notice of any Caveat has been served on the applicant, he shall furnish, at the expense of the Caveator, • A copy of the application made by him. • Copies of any paper or document which has been filed by him in support of his application. • Copies of any paper or document which may be filed by him in support of his application. ● 5. Life of a Caveat Petition (Clause 5) :  The life of the petition is 90 days, from the date on which it was lodged.  Object and Scope of the Section : ● The object of this section is to safeguard the interest of the Caveator,  who is ready to face the suit or proceedings which is expected to be instituted by his opponent, • by affording him an opportunity to be heard, before an ex parte order is made.  Also, to avoid multiplicity of proceedings, so as to save the costs and conveniences of the Courts. ● The Scope of the section was laid down in various cases. ● In the case of Nirmal Chand the Court had said that  any party affected by an interim order can file a Caveat petition. ● In the case of Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma, the court opined that,  a person who is a total stranger to a proceeding cannot lodge a caveat. ✔ Read http://www.legalservicesindia.com/article/article/caveat-petition-2124-1.html for detailed discussion on various important cases related to provision of Caveat. This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss - "Inherent Powers of the Court". (Oct-2013) ANSWER : ✔ Refer :  Read “Inherent powers of High Court” from 302 Criminal Procedure Code (CrPC).  Read “Inherent powers of SC” from 304E Public Interest Lawyering (PIL). This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Law Reform: Law Commission on Civil Procedure Amendments. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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ANSWER : ✔ Refer :  https://blog.ipleaders.in/indian-civil-procedure-code/ ✔ This is Module-3. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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Module-4

4) Limitation Act: 4.1) Concept and object of the Act 4.2) law assists only vigilant and not those who sleeps over his rights 4.3) Distinction with latches, acquiescence, Prescription 4.4) Extension and suspension of Limitation, Liability of Govt. Departments for delay & Judicial pronouncements

4.5) Sufficient cause for not filling the proceedings : 4.5.1) Illness 4.5.2) Mistaken Legal Advise 4.5.3) Mistaken view of Law 4.5.4) Poverty, minority and Purdha Imprisonment Defective Vakalatnama, Legal Liabilities

4.5.5) Foreign rule of limitation : contract entered into under a foreign law, Acknowledgement - essential requisites continuing tort and continuing breach of contract GO TO CONTENTS. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 MODULE-4 QUESTIONS : ➔ Discuss under Limitation Act : Aims and objects of the Limitation Act. (Nov-2011, Apr-2016) ➔ Discuss : "Every suit instituted, appeal preferred and application made after the period of limitation prescribed, shall be dismissed". ✔ Explain : "The Limitation Act helps only those who are vigilent and not idle” (Nov-2014)  Write note : Limitation Act : “Law of Limitation helps only vigilant and not idle.” (Dec-2015) ➔ Discuss under Limitation Act : Effect of "Legal disability" on limitation. (Nov-2011) ✔ Discuss : Doctrine of Tolling. ✔ Explain : Effect of legal disability on the period of limitation. (Nov-2014) ✔ Explain under the Indian Limitation Act : Effect of “Legal Disability” on the period of limitation. (Apr-2016) ➔ Write note : Limitation Act : “Once time has begun to run, no subsequent disability CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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or liability stops it.” (Dec-2015) ➔ Explain - Limitations bars remedy but does not extinguish the right and discuss exceptions to the rule. ✔ Does a debt subsists notwithstanding that its recovery is barred by limitation? ➔ Distinguish : latches, acquiescence, Prescription. ➔ Discuss : Extension and suspension of Limitation. ✔ Explain extension and exclusion of time in cases of delay in preferring an appeal. (Nov-2012) ➔ Discuss : Liability of Govt. Departments for delay & Judicial pronouncements. ➔ Discuss : Sufficient cause for not filling the proceedings . ➔ Explain the effect of "Mistake" and "Fraud" on the period of limitation. (Oct-2013) ✔ Explain : Effect of death on period of limitation. ✔ Explain : Effect of "Fraud" and “Mistake” on period of limitation. (Nov-2014) ✔ Write note : Limitation Act : Effect of Fraud and "Mistake' on the period of Limitation. (Dec-2015, Apr-2016) ➔ What matters should be considered by a Court in a suit by or against minors ? (Nov2012, Oct-2013) ✔ Discuss : Effect of Minority on period of limitation. ✔ Explain the provisions relating to the suit by or against minor with decided cases. (Nov-2014) ✔ Explain in detail the provisions relating to suit by or against the “Minor” with case laws. (Apr-2016) ➔ Discuss under Limitation Act : Effect of "part Payment” on limitation. (Nov-2011) ➔ Discuss : Foreign rule of limitation : contract entered into under a foreign law . ➔ Explain under the Indian Limitation Act : Effect of the Acknowledge on the period of limitation. (Apr-2016) ✔ Discuss under Limitation Act : Effect of “Acknowledgement in Writing" on limitation. (Nov-2011) ✔ When and under what circumstances acknowledgement in Writing can extend the period of limitation ? (Nov-2012, Oct-2013) ✔ Explain : Effect of acknowledgment in writing on account of debt on period of limitation. (Nov-2014) ➔ Discuss : continuing tort and continuing breach of contract . ✔ Write note : Limitation Act : Effect of Period of Limitation on continuing breaches and torts. (Dec-2015) GO TO CONTENTS. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 MODULE-4 ANSWERS : ➔ Discuss under Limitation Act : Aims and objects of the Limitation Act. (Nov-2011, Apr-2016) ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/LIMITAT.htm  http://www.dullb.com/Downloads/Semester3/LIMITATION_STUDY %20MATERIAL_SEM%203.pdf  https://www.netlawman.co.in/ia/limitation-act-1963 ✔ Origin of the Law of Limitation :  Unlimited and perpetual litigation disturbs the peace of society and leads to disorder and confusion.  A constant dread of judicial process and a feeling of insecurity retard the growth and prosperity of a nation.  The Romans, therefore, had the maxim interest republicae ut sit fines litum ● ie the interest of the State requires that a period should be put to litigation).  The law of limitation prevents persons from enforcing their own rights, ● and disputing the rights of others, ● after a certain period of time, ● and thus quiets titles and enhances the value of property.  Hence as a matter of public policy, law of limitation is to prescribe periods after the expiry of which a suit cannot be maintained in court of law.  The principle on which law of limitation is based is incorporated in maxim ● It is in the interest of the State that  remedies for violated rights should be sought in courts of Law without delay. ● "interest republic let sit finis litium"  The principle is based on public policy that, ● claims are extinguished or ought to be held extinguished, ● whenever they are not litigated in the proper forum (court) within the prescribed period.  The delay take away all solid grounds of the complaint because of the negligence or neglect of the party himself.  It has been said by John Voet that

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● controversies are limited to a fixed period of time, ● lest they should be immortal while men are mortal.  The Indian Limitation Act lays down definite Rules of law, ● giving to the people for whose benefit they have been framed, ● a guarantee that after a lapse of certain period they may rest in peace and rely upon titles or other rights which they have acquired.  Laws of limitation enjoins alertness upon the citizen by making a citizen who delays too long to lose his right altogether.  The principle is base on well know maxim, ● Vigilantibus non dormentibus Jura Subvenient  ie the laws assist the vigilant and not those who sleep over their rights ✔ History of Law of Limitation In India :  There was no specific, uniform Law of Limitation till 1859.  It is in 1859 first specific enactment on law of Limitation was introduced which provided for limitation on Suits, appeals and certain applications to courts.  This Act also provided for acquisition of easements and extinguishment of rights on land and hereditary office at the determination of certain period.  Limitation Act of 1877 was more comprehensive. It provided for law of prescription not only in respect of land or hereditary office but also to other moveable properties.  Later Act 1877 was replaced by Act no IX of 1908.  The Act of 1908 remained in force till the present Act No. 36 of 1963 was passed.  The new Limitation Act came into force with effect from January 1, 1964.  The present Act is a unique piece of legislation which contains several provisions of far-reaching nature. ● It gives statutory expression to the changes recommended by the Law Commission. ● It does not contain merely drafting changes but in many aspects it is a new enactment.  The Limitation Act, 1963 is the legislation that governs the period within which suits are to be filed, with relevant provisions for delay, condonation thereof etc.  Sec-24 of the LA 1963 provides that,  for the purpose of the Limitation Act the Gregorian Calendar is to be used ● Gregorian Calendar means the British Calendar introduced by Pope Gregor XIII in 1582). ✔ Scope of the act :  The act extends to whole of India except the state of Jammu & Kashmir. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 The Limitation Act 1963 applies to ● all civil proceedings and some special criminal proceedings ● unless its application is excluded by any enactment. ✔ Constitutional validity of the Limitation Act 1963 :  In tilokchand motichand verses. h.p. munshi, supreme court held that ● the statute of limitation is not unconstitutional since it applies to right of action in future. ● it is a shield and not a weapon of offence. ● the state cannot place any hindrance by prescribing a period of limitation in the way of an aggrieved person seeking to approach the supreme court of india under article 32 of the constitution.  to put curbs in the way of enforcement of fundamental rights through legislative action might well be questioned under article 13(2) of the constitution. ● Court further held that a writ petition filed before the supreme court is not a suit and is also not a petition or application to which the limitation act applies, so limitation act is not applied to writs. ✔ Application in writs under the constitution :  The subject of limitation is dealt with in list III i.e. concurrent list, vide entry 13 of the Constitution of India.  The legislature may, without violating the fundamental rights, ● enact statutes prescribing limitation within which actions may be brought ● by varying or changing the existing rules of limitation either by shortening or extending time, ● provided a reasonable time is allowed for enforcement of the existing right of action which would become barred under the amended statute. ✔ Application in criminal proceedings :  In bapu verses. bapu (ilr 39 mad 750) it has been held that ● the limitation act does not apply to criminal proceedings unless it is made applicable to them by express provisions. ● periods of limitation have been provided for appeals under the criminal procedure code in article 114 and 115. ● article 131 of the limitation act applies to application of criminal revision.  in japani saho verses. chandrasekhar mahanty, the supreme court held that ● the reason why the limitation act, 1963 did not provide for limitation for filing criminal cases in the court of law, is that  it is well-settled that a criminal offence is considered as a wrong to the state and the society, even though it has been committed against an individual. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 the general rule of criminal justice is that a crime never dies and this principle is reflected in well-known maxim "nullum tempus ant locus occurrit regi" which means that lapse of time is no bar to crown in proceedings against the offenders. ✔ Limitation act is not applicable to,  proceedings under section 33c (2) of the industrial disputes act, 1947 . (town municipal council verses. presiding officer, labour court, ) ✔ Although the limitation act 1963 gives a wider definition to application  yet it is clear that only certain and not all applications are covered by the act despite the fact that the words "other proceedings” were added in the long title of the act in 1963. ✔ Applications not covered under LA 1963 :  (1) an application for a succession certificate, probate or revocation of probate ● (janaki verses. kesavalu, 8 mad 207 (208) ● (kalinath verses. nagendra nath,) ● (ashwini kumar verses. Sukhaharan).  (2) an application under the religious endowments act or an application for the appointment of new trustees. (janaki verses. kesavalu,)  (3) an application to a court to exercise the functions of a ministerial character example. An application for the grant of sale certificate (kylasa verses. ramasami)  (4) an application for a final decree in a suit for partition (sudarsahn pande verses. Lakshmidhar pande,)  (5) an application for election dispute (venkateswar rao verses. narasimha reddy,)  (6) an application to invoke the jurisdiction of the courts under section 151 of CPC {Saving of inherent powers of Court} (beeravu verses. kathiyamma, )  (7) an application to a court to do what the court is bound to do. (darbo verses. Kesho,). ✔ Salient features of the Limitation Act 1963 :  Elements of the Act : ● The Act created exceptions to the normal statute of limitations in addition to the previous ones of fraud and mistake. ● It introduced an exception if for example;  the permission of the court had been gained • to bring a case or the "material facts" of the case included • "facts of a decisive character" which the claimant was not aware of until after the expiry of the statute of limitations. ● Where these two requirements were fulfilled, a case could be brought as long as it was within twelve months of the claimant finding out the "facts of a decisive CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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character". ● The same principles applied if the injured parties were dead and the claim was being brought on behalf of his estate or dependents.  Limitation only applies to institution of proceedings, not to their continuance : ● The bar of limitation arises only at the time when a suit is instituted, an appeal is preferred or an application is made after the prescribed period of limitation.  The bar does not apply to steps which constitute a mere continuation of pending proceeding. ● Eg  Where an application for execution has been filed within the period of limitation, but subsequently, an application is made to continue the execution proceeding, the latter application is not subject to any period of limitation.  Similarly, where a suit is validly instituted, but the plaint is returned for some purpose and represented, such representation is only a continuation of the suit and does not affect the question of limitation.  Prescribed period cannot be extended or curtailed by consent : ● Period of limitation cannot be extended or shortened by consent of parties :  any agreement which curtail the period of limitation provided by this act will be void under section 28 of the indian contract act as it amounts to restraint of legal proceedings.  any agreement which extends the period of limitation will be void under section 23 of the indian contract act as it is against the public policy and would defeat the provisions of law. ● Parties cannot waive or contract themselves out of the law of limitation.  [goobardhan verses. dan dayal].  no one can contract himself out of the statute of limitation.  where the result of a compromise between the decree holder and the judgement-debtor was that the limitation provided by law is extended, • it was open to the judgement-debtor to plead that the decree-holder application for exemption was barred by limitation ✔ Conclusion :  Limitation and compensation of Delay are two effective implementations in the quick disposal of cases and effective litigation.  The law on limitation keeps a check on pulling of cases ● and prescribes time period within which the suit can be filled and the time available within which the person can get the remedy conveniently.  Compensation of delay keeps the principle of natural justice alive ● and also states the fact that different people might have different problem CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● and the same sentence or a singular rule may not apply to all of them in the same way. ● Thus it is essential to hear them and decide accordingly whether they fit in the criteria of the judgment or whether they deserve a second chance. GO TO MODULE-4 QUESTIONS. GO TO CONTENTS. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : "Every suit instituted, appeal preferred and application made after the period of limitation prescribed, shall be dismissed". ✔ Explain : "The Limitation Act helps only those who are vigilant and not idle” (Nov-2014)  Write note : Limitation Act : “Law of Limitation helps only vigilant and not idle.” (Dec-2015) ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/LIMITAT.htm ✔ Bar of limitation :  Sec-3 : ● (1) Subject to the provisions contained in sections 4 to 24 (inclusive),  every suit instituted, appeal preferred, and application made • after the prescribed period • shall be dismissed,  although limitation has not been set up as a defence.  Thus, Section 3 of Limitation Act gives the general rule of limitation that, ● a suit or an appeal or an application filed beyond the time prescribed therefor ● shall be dismissed ● although limitation is not setup as defence by opposite party.  Prescribed Period : ● Schedule to the Limitation Act 1963 contains, in tabular format,  description of suit,  period of limitation, and  time from which the period begins to run. ✔ Section 3 of Limitation Act gives the general rule of limitation by providing that,  a suit or an appeal or an application filed beyond the time prescribed therefor CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 shall be dismissed although limitation is not setup as defence by opposite party. ✔ In Ashok K. Khurana v. M/s Steelman Industries and others, AIR 2000 Delhi 336 it was observed :  Mere reading of Section 3 of the Act shows that it is mandatory and absolute in nature.  It enjoins upon the court to dismiss any suit instituted, appeal preferred or application made after the prescribed period of limitation, although limitation has not been set up as a defence.  Courts have no discretion or inherent powers to condone the delay if the suit is filed beyond the prescribed period of limitation, ● rather a duty is cast on the court to dismiss the suit, appeal or application if the same is barred by limitation ● unless matter is covered by Sections 4 to 24 of the Act. " ✔ Exceptions :  The Limitation Act, 1963, prescribed limitation with a view to see that a litigant does not drag on the litigation.  Gateways from the mandatory provisions of Sec-3 are provided by Sec-4 to 24.  ie the court has no power, apart from the provisions of Sections 4 to 24, ● to relieve a litigant from the bar of limitation even on equitable consideration or on grounds of hardship or in exercise of its inherent powers.  Sec-4 of the Act provides that ● where the prescribed period for any suit, appeal or application expires on a day when the court is closed,  the suit, appeal or application may be instituted, on the day when the court reopens.  Sec-5 gives an opportunity to a litigant to file applications beyond the prescribed period of limitation, ● provided he is able to establish that he was prevented by sufficient cause from approaching the Court within the said period.  Sec-5 of the Act provides that, ● an appeal or any application other than the application under any of the provisions of Order 21 {Execution of Decrees and Orders} of CPC, ● may be admitted after the prescribed period,  IF the appellant or applicant satisfied the Court that • he had sufficient cause for not preferring an appeal or making the application within such period.  Even though explanation for day-to-day delay is not being insisted by the Courts, ● the litigant has to nevertheless furnish the satisfactory explanation for filing the CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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application beyond the prescribed period of limitation.  This responsibility on the part of the litigant is much more in cases of abnormal delays, ● because by such delays right came to be vested in his adversary and such a right cannot be easily taken away by making unduly liberal approach by the Court.  Sec-6 to Sec-8 : ● extend the period of limitation,  in cases where the limitation expires before the cessation of disability, i.e. minority, insanity or idiocy.  Sec-12 to Sec-15 : ● provide for excluding certain periods in computing the period of limitation.  Sec-16 to Sec-24 : ● provide for the effect of death, fraud, mistake, acknowledgement in writing, part payment, addition or substitution of new plaintiffs or defendants, and continuous wrong. ● In such cases, the Act provides the date from which the fresh period of limitation shall begin to run. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss under Limitation Act : Effect of "Legal disability" on limitation. (Nov-2011) ✔ Discuss : Doctrine of Tolling. ✔ Explain : Effect of legal disability on the period of limitation. (Nov-2014) ✔ Explain under the Indian Limitation Act : Effect of “Legal Disability” on the period of limitation. (Apr-2016) ANSWER : ✔ Refer :  http://hanumant.com/Limitation-Legal%20Disability.html  https://www.lawfinderlive.com/bts4/LIMITAT.htm ● copy at http://bit.ly/2vj7sgu kamkus.org coursematerial : Civil Procedure Code & Limitation Law.pdf ✔ Intro :  Generally limitation begins to run from the date of cause of action. ● But the Indian Limitation Act itself provides certain exceptions to this general principle.  In a case, the aggrieved party is suffering with some legal disability, CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● then, the period of limitation does not run from the date of the accrual of the cause of action  but runs from a subsequent date, on which the disability ceases. ✔ Doctrine of Tolling :  Tolling provisions benefit a plaintiff by extending the time period in which he is permitted to bring suit.  Tolling is a legal doctrine that allows for the pausing or delaying of the running of the period of time, ● so that a lawsuit may be filed even after the statute of limitations has run.  Grounds for tolling the statute of limitations vary by jurisdiction, common grounds include : ● The plaintiff was a minor at the time a cause of action accrued. ● The plaintiff has been deemed mentally incompetent. ● The plaintiff was been convicted of a felony and is imprisoned. ● The defendant has filed a bankruptcy case triggering a stay of other lawsuits. ● The defendant is not physically present in a state. ● The parties were engaged in good-faith negotiations to resolve a dispute without litigation when the statute of limitations expired.  Tolling may occur under a statute that specifically provides for the tolling of the statute of limitations during specified circumstances.  It may also take the form of equitable tolling, ● ie court applies common law principles of equity to extend the time for the filing of a lawsuit.  Statutes of limitations are designed to aid defendants. However, a plaintiff can prevent the dismissal of his action for untimeliness under certain circumstances by seeking to toll the statute.  When the statute is tolled, ● the running of the time period is suspended until some event specified by law takes place. ✔ Various events or circumstances will toll a statute of limitations :  Statute of Limitation, is tolled when one of the parties is under a legal disability (the lack of legal capacity to do an act) at the time the cause of action accrues.  For example, a child or a person with a mental illness is regarded as being incapable of initiating a legal action on her own behalf. ● therefore, the time limit will be tolled until some fixed time after the disability has been removed. After such removal the counting of time will be resumed.  Note that, a personal disability that postpones the operation of the statute against CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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an individual may be asserted only by that individual.  If a party is under more than one disability, the statute of limitations does not begin to run until ALL the disabilities are removed. ✔ Sec-6 : (these are legal disabilities)  (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, ● at the time from which the prescribed period is to be reckoned,  a minor or insane, or an idiot, ● he may institute the suit or make the application within the same period  after the disability has ceased.  (2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make application within the same period after both disabilities have ceased as would otherwise has been allowed from the time so specified.  (3) Where the disability continues upto the death of that person his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.  (4) Where the legal representative referred to in sub- section (3) is at the death of person to whom he represents, affected by any of such disability, the rules contained in sub-sections (1) and (2) shall apply.  (5) Where a person under disability, dies after the disability ceases but within the period allowed to him under this Section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.  Explanation :- For the purposes of this Section `minor' includes a child in the womb. ✔ Discussion :  So Section 6 does not prevent running of limitation but only extends the period of limitation on the ground of disability of person entitled to sue or apply.  Section 6 excuses an insane person, minor and an idiot to file a suit or make an application for the execution of a decree within the time prescribed by law and enables him to file the suit or make an application after the disability has ceased, counting the period of time from the date on which the disability ceased.  If one disability supervenes on another disability or one disability is followed by another without leaving a gap ● then, the suit or application for execution may be filed after both disabilities have ceased to exist. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 If the disability or disabilities continue till the person's death ● then, the legal representative of the deceased on whom the title devolves is allowed to file a suit or make an application for execution within the time allowed by law counting it from the death of the person entitled. ● The mere fact that there is a guardian for the person under disability does not deprive such person of the indulgence granted by Section 6.  Once the statute begins to run, it will not be suspended by the subsequent disability of any of the parties unless specified by statute. ✔ In Akhtar Hussain v. Qudrat Ali AIR 1923 Oudh  it was observed that Section 6 of Limitation Act has no application in case of appeals.  Legal disability is inability to sue owing to minority, lunacy or idiocy.  The effect of legal disability is that it extends the period of limitation but it does not prevent the period from running. ✔ Discussion :  Some times a situation arises when one of the several persons jointly entitled to institute a suit or to execute a decree is under disability. ● In this connection Section 7 of Act says that  if one of the several persons jointly entitled to institute a suit or make an application for the execution of a decree, is under any such disability and a discharge can be given without the concurrence of such person, • the time will run against all of them.  However, if such discharge cannot be given, • time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the other or until the disability has ceased.  Thus, Section 7 of Limitation Act would apply when the right to sue is joint, irrespective of whether the substantive right is joint or not. ✔ Section 8 of Indian Limitation Act : Rules contained in Sections 6 and 7 are subject to the following conditions :  1. They cannot be applied to the suits to enforce rights of preemption.  2. They cannot be applied to any of the cases in which extension of period of limitation for more than three years from the cessation of disability or the death of a person as the case may be, is sought for. ✔ Ignorance of the existence of a cause of action :  Mere ignorance of the existence of a cause of action generally does not toll the statute of limitations, particularly when the facts could have been learned by inquiry or diligence. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 However, in cases where a cause of action has been fraudulently concealed, the statute of limitations is tolled until the action is, or could have been, discovered through the exercise of due diligence.  Ordinarily, silence or failure to disclose the existence of a cause of action does not toll the statute.  The absence of the plaintiff or defendant from the jurisdiction does not suspend the running of the statute of limitations, unless the statute so provides. ✔ Payment of the debt :  The statute of limitations for a debt or obligation may be tolled by either an unconditional promise to pay the debt or an acknowledgement of the debt.  The time limitation on bringing a lawsuit to enforce payment of the debt is suspended until the time for payment established under the promise or Acknowledgment has arrived. Upon that due date, the period of limitations will start again. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Write note : Limitation Act : “Once time has begun to run, no subsequent disability or liability stops it.” (Dec-2015) ANSWER : ✔ Refer :  http://www.alameenlaw.in/modelpapers-dec2016.html  https://drive.google.com/file/d/0B512e53sZU3sQ01ia3lvcjN1b1U/view ✔ Intro :  This is the fundamental rule of Law of Limitations. It has been taken from the English law. ● “Time when once it has commenced to run in any case will not cease to do so by reason of any subsequent event”. ✔ Bar of limitation :  Sec-3 : ● (1) Subject to the provisions contained in sections 4 to 24 (inclusive),  every suit instituted, appeal preferred, and application made • after the prescribed period • shall be dismissed,  although limitation has not been set up as a defence.  Thus, Section 3 of Limitation Act gives the general rule of limitation that, ● a suit or an appeal or an application filed beyond the time prescribed therefor CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● shall be dismissed ● although limitation is not setup as defence by opposite party.  Prescribed Period : ● Schedule to the Limitation Act 1963 contains, in tabular format,  description of suit,  period of limitation, and  time from which the period begins to run. ✔ WHEN does the time start to run?  The time begins to run when the cause of action accrues ● and the true test to determine when the cause of action has accrued  is to ascertain the time when the plaintiff could have first maintained his action.  Essential elements for cause-of-action : There must be in existence, ● a person who can sue ● and another who can be sued ● and all facts must have happened which are material to be proved to entitle the plaintiff to succeed.  IF at the date when the cause of action arises the plaintiff is under no disability or inability to sue ● THEN time will begun to run against him.  Where several persons have distinct causes of action in respect of the same matter, distinct periods of limitation apply. ✔  This section is based on the principle that when once limitation has commenced to run, it will continue to do so unless it is stopped by virtue of any express statutory provision.  This section only deals with the question of stopping limitation. ✔ The principle as incorporated in Limitation Act 1963 :  Definition : Sec-9 : ● Where once time has begun to run,  no subsequent disability or inability to institute a suit or make an application stops it:  EXCEPTIONS : The running of time will be suspended in the following cases : ● (i) Where letters of administration of the estate of creditor have been granted to his debtor. [Sec-9] ● (ii) The time requisite for obtaining a copy of the decree or order appealed from shall be excluded from computing the period of limitation prescribed for appeal CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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or review, [Sec-12] ● (iii) Exclusion of time in cases where leave to sue appeal as a pauper (poor person) applied for. ● (iv) When the plaintiff has been prosecuting another civil proceeding. ● (v) When notice has been given before the institution of suit in accordance with law, the limitation will be suspended during the period of notice. ● (vi) When an injunction order has been obtained to stay the institution of a suit. [Sec-15(1)] ● (vii) When the person dies on or before the accrual of the right to sue. ● (viii) When notice is served before the institution of a suit, the limitation shall be suspended during the period of notice (Section 15(1)). ● (ix) If the defendant is absent from India, the time upto which he has been absent shall be excluded while computing the period of limitation (Sec-15(5)). ✔ Difference between scope of Sec-9 and Sec-6 :  Sec-9 contemplates a case of subsequent and not of initial disability, ● ie, it contemplates those cases where the disability occurred after the accrual of the cause of action;  Sec-6, cover cases of initial disability, also known as legal disabilities.  Sec-6 : (these are legal disabilities) ● (1) Where a person entitled to institute a suit or make an application for the execution of a decree is,  at the time from which the prescribed period is to be reckoned, • a minor or insane, or an idiot,  he may institute the suit or make the application within the same period • after the disability has ceased. ✔ Other characteristics of the principle :  Sec-9 does not affect any exemption from limitation, which may operate without stopping time from running.  This principle is applicable only when the disability occurs after the period of limitation has started running, ● but has no application in cases of initial disability.  This section contemplates cases where the cause of action, continues to exist, ● This section does not apply to cases where the cause of action is cancelled by subsequent events.  Under this section time for execution of a decree started running from the date of the trial court decree and there was no provision for arresting the running of limitation thereafter.

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This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain - Limitations bars remedy but does not extinguish the right and discuss exceptions to the rule. ✔ Does a debt subsists notwithstanding that its recovery is barred by limitation? ANSWER : ✔ Refer :  http://hanumant.com/Limitation-RemedyRight.html  https://www.lawfinderlive.com/bts4/LIMITAT.htm ✔ The general rule of law of limitation is that,  it only bars the remedy and does not extinguish the right itself. ✔ When a suit or appeal or application is filed after the prescribed period of limitation, then such suit or appeal or application shall be dismissed, which means  the court will not grant remedy if asked for after the prescribed of limitation  however, the law does not dispute the right of litigant. ✔ The principle that pervades statutes of limitation at common law is that  ‘limitation extinguishes the remedy, but not the right' ✔ This means that the legal right itself is not defeated, but only the right to claim it in a court of law is extinguished. ✔ Exception to this general rule is discussed below. ✔ Under Section 25(3) of the Contract Act, a barred debt is good consideration for a fresh promise to pay the amount. ✔ When a debtor makes a payment without any direction as to how it is to be appropriated,  the creditor has the right to appropriate it towards a barred debt. ✔ In the case of Bombay Dyeing and Mfg Co. Ltd. v. State of Bombay AIR 1958 SC 328 SC held,  Section 27 of the Limitation Act provides that when the period limited to a person for instituting a suit for possession of any property has expired, his right to such property is extinguished.  And the authorities have held that when the property is incapable of possession (eg debt) the section has no application, and lapse of time does not extinguish the right of a person thereto.  It has also been held that a creditor is entitled to recover the debt from the surety, even though a suit on it is barred against the principal debtor.  And when a creditor has a lien over goods by way of security for a loan, he can CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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enforce the lien for obtaining satisfaction of the debt, even though an action thereon would be time-barred. ✔ Exception to the general rule of limitation :  An exception to this general rule is ● the law of prescriptive rights, whereby the right itself is destroyed.  It is important to note that, ● the law of limitation only bars the remedy of a person by means of a suit, ● it does not deprive him of his right if it can be exercised in any other manner. ● Illustration :  Where a suit or debt is barred by limitation, the debt nevertheless remains; • ie it is open to the debtor to pay the barred debt and the payment cannot be recalled on the ground of failure of consideration.  Similarly, a barred debt is a good consideration for a written promise to pay it. [Section 25 of the Contract Act].  In India, Section 27 of Act is the exception to this general principle so far as suits for possession of property are concerned.  Sec-27 of the limitation Act, 1963 : Extinguishment of Right to Property : ● At the determination of the period hereby limited to any person for instituting a suit for possession of any property, ● his right to such property shall be extinguished.”  Thus, after the expiry of period thus prescribed for instituting a suit for possession of any property,  the person who should have instituted such suit but has failed to do so,  shall cease to have any right to the property.  ie After the expiry of its period the law declares simply that ● not only the remedy is barred ● but that even title is extinct in favour of the possessor.  In Banarsi Das v. Jiwan Ram, AIR 1995 P and H 85 it was observed ● "A bare perusal of Section 27 of Indian Limitation Act would show that after expiry of the period of limitation prescribed for filing suit for possession under the Limitation Act, even the right to sue for possession is extinguished."  Suits Relating To Immovable Property : ● Articles 64 and 65 of the Limitation Act, 1963, establishes the law of adverse possession as it stands in India today. ● Articles 64 & 65 both prescribe a period of twelve years within which the right to claim a particular property is extinguished,  but the two differ in so far as the date on which such period of limitation CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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begins to run. ● Article 64 of Schedule of Limitation Act :  period of limitation for suit for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed is "twelve years" and,  such period begins to run from the date of such dispossession of plaintiff. ● Article 65 of Schedule of Limitation Act : Period of limitation for filing suit for possession of immovable property or any interest therein based on title is "twelve years" and  period of limitation begins to run when the possession of defendant becomes adverse to the plaintiff. ● Thus  in all suits for possession based on dispossession whether plaintiff had title or not, the burden of proof is on the plaintiff • to prove that he was in possession and was dispossessed within 12 years of filing suit and,  in all suits for possession based on title, burden of proof is on defendant • to prove that his possession over suit property becomes adverse to plaintiff for beyond 12 years of the suit, • ie upon the proof of defendant being in adverse possession for property for period of beyond 12 years (Article 65), plaintiff's right to property will extinguish to possessor. ● The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. ● For possession to be adverse, it must be a possession by a person who does not acknowledge the other's right but deny them. ● Note :  A. (in Article 64) the full period prescribed for a suit for possession must have expired, otherwise the title of the true owner is not extinguished in favour of wrongdoer. • ie title holder’s right is extinguished only when somebody else is in adverse possession of property of lawful owner and no suit for possession has been filed within prescribed period of limitation. • Institution of the suit for possession is sufficient to bar the operation of Section 27 of Limitation Act.  B. The law of adverse possession is no longer a tool of a powerful squatter buttressed by the lack of awareness on part of the true owner. ● Today, the law of adverse possession is viewed with great circumspection by the judiciary, and this is a trend that commenced abroad. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ In the case of J.K. Chemicals Ltd. v. CIT [1966] 62 ITR 34,  The assessee-company, which kept its accounts on the mercantile system,  debited the accounts as and when it incurred any liability on account of wages, salary or bonus due to its employees even though the amounts were not disbursed in cash to the employees,  and obtained deduction of the amounts so debited in the respective years in computing its total income. Certain portion of the wages, salary and bonus, so debited, was in fact not drawn by the employees. ● On June 30, 1957, a sum of Rs. 5,929 which had remained undrawn but had been allowed to be deducted during the accounting years 1945 to 1953 was credited to the profit and loss account of the said year. ● The Department included this amount in the total income of the accounting year on the ground that the trading liability in respect of which deduction had been allowed had ceased to exist, and under section 10(2A), the amount in question should be deemed to be income.  The Bombay High Court held that, ● in order that an amount may be deemed to be income under section 10(2A), there must be a remission or cessation of the liability in respect of that amount. ● The mere fact that more than three years had elapsed since the accrual of the liability and that the debts had become unenforceable against the assessee under the general law does not constitute cessation of the trading liability within the meaning of section 10(2A). ● A mere entry of credit in the accounts in respect of the amount would also not bring about a remission or cessation of the liability. ● Section 10(2A) was not, therefore, applicable and the amount was not liable to be assessed as income of the accounting year in which the credit entry was made. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Distinguish : Laches, Acquiescence, Prescription. ANSWER : ✔ Refer :  http://www.dullb.com/Downloads/Semester3/LIMITATION_STUDY %20MATERIAL_SEM%203.pdf ✔ Laches :  Note : ● In India, the statute of limitation being a complete code it has been said in many CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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cases that the equitable doctrine of laches and acquiescence does not apply to suits for which a period of limitation is provided by the limitation act.  The doctrine of laches and doctrine of acquiescence have their origin in the English courts of equity and applied to those cases which were not covered by the statutes.  Laches means slackness or negligence, ● and hence, willful negligence in asserting one's right.  The doctrine of laches is based on the principle, ● delay defeats equity.  These are following difference between limitation & laches : ● 1. the basis of the doctrine of laches is the same as that of the law of limitation.  In the case of limitation, • a suit is dismissed if not brought within the prescribed time and no other matters are taken into consideration.  In the case of laches, • there is no fixed period of time; the court will look into facts of each particular case to see • (a) whether there was an unreasonable delay on the plaintiffs part; • (b) whether the plaintiffs delay has resulted in loss or destruction of evidence; and • (c) whether the plaintiff has, by his delay or omission, induced the defendant to incur an expense or to alter his position. ● 2. In the case of limitation, the ignorance or knowledge of the plaintiff with respect to his right is, in most cases, immaterial.  on the other hand, in order to defeat a claim on the ground of laches, it would ordinarily be necessary to show that, • the plaintiff had a sufficient knowledge of the facts, constituting his title to the relief, • and that he knowingly abstained himself to assert his rights. ● 3. limitation is based on consideration of public policy  whereas the doctrine of laches is based on equitable consideration. ● 4. Limitation rests upon express law,  laches depends upon general principles. ✔ Acquiescence :  Note : ● In India, the statute of limitation being a complete code it has been said in many cases that the equitable doctrine of laches and acquiescence does not apply to suits for which a period of limitation is provided by the limitation act. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 The doctrine of laches and doctrine of acquiescence have their origin in the English courts of equity and applied to those cases which were not covered by the statutes.  Laches is just a type of acquiescence.  In kisandas premchand verses. jivatlal protapshi & co., court observed, ● Laches mean doing nothing.  Lapse of time or delay in suing, unaccounted for by disability or other circumstances constitutes laches.  Delay in seeking equitable remedy is technically known as laches and will disentitle the claimant to establish his claim even if the claim is not disputed.  The domain of acquiescence is large while that of laches is very small. ● Laches is merely passive,  while acquiescence implies almost active consent.  Where there is a statute of limitation, ● the objection of laches does not apply until the expiration of time allowed by the statute. ● But acquiescence is a different thing; it means more than laches.  Illustration of acquiescence : ● If a party who could object does not do so and knowingly permits another to incur an expense in doing an act under a belief that it would not be objected to,  a kind of permission may be said to have been given to another to alter his condition,  and he may be said to acquiesce.  Acquiescence consist of tripartite factors which are, knowledge, capacity and freedom,  For acquiescence, ● a person must be fully cognizant of his right to dispute the claim, ● and he must be under no disability ● and he must be free from all undue influence or pressure.  Mere delay is not, by itself, fatal to a suit. It is a case of laches. ● But delay which amounts to a waiver of the plaintiffs right by acquiescence  or conduct inducing a party to place himself in a position in which he would not otherwise have placed himself, may be sufficient to disqualify a plaintiff from asserting rights which are not actually barred by limitation. ✔ Prescription :  Law of prescription lays down the period at the expiry of which ● a substantive or primary right is, under certain circumstances, acquired or extinguished. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 The term 'prescription' as used in the limitation act, excludes, and is opposed to limitation. ● A person's right is extinguished by prescription when he cannot assert it either judicially or extra-judicially.  It perishes so far as he is concerned. ● But since a mode of losing rights is also often a mode of acquiring them, the right is virtually, though not expressly or directly, transferred to the person who claims it by prescription.  Where prescription extinguishes the substantive right itself, the remedy is necessarily lost or barred.  A prescription such as that dealt with by section 27 is an distinctive prescription. ● where prescription not only bars the remedy, and extinguishes the right of the original holder, ● but directly transfers his right to the opposing claimant, the latter acquires a title against all the world. ● such a prescription is called acquisitive prescription. [section 25]  Difference between limitation and prescription : ● 1. Law of limitation prescribes the time after which a suit or other proceedings cannot be instituted in a court of law.  A law of prescription prescribes the time at the expiration of which some substantive right may be acquired or may become extinguished.  ie prescription has a twofold aspect : as creating a right as well as extinguishing a right. ● 2. Law of limitation merely affects the remedy, it does not touch the right of a person to the debt, damage, goods, person, property, etc.  Prescription extinguishes the right of action. limitation is considered to be a species of prescription. ● 3. Law of limitation, as merely bars the remedy, is a part of the procedural or adjective law.  Law of prescription, as it affects the substantive right itself, is a part of the substantive law. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Extension and suspension of Limitation. ✔ Explain extension and exclusion of time in cases of delay in preferring an appeal. (Nov-2012) ANSWER : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ Refer :  ✔ Extension and suspension of Limitation :  ✔ Extension and exclusion of time in cases of delay in preferring an appeal :  This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Liability of Govt. Departments for delay & Judicial pronouncements. ANSWER : ✔ Refer :  This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Sufficient cause for not filling the proceedings. ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/LIMITAT.htm ✔ Sec-5 of the Act provides that,  an appeal or any application other than the application under any of the provisions of Order 21 {Execution of Decrees and Orders} of CPC,  may be admitted after the prescribed period, ● IF the appellant or applicant satisfied the Court that  he had sufficient cause for not preferring an appeal or making the application within such period. ✔ Court’s discretion as to sufficiency of the alleged cause :  The court has a discretion when it comes to “what would be a sufficient cause”.  In Sandhya Rani v. Sudha Rani AIR 1978 SC 537 Supreme Court observed: ● It is undoubtedly true that in dealing with the question of condoning the delay under Section 5,  the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time • and this has always been understood to mean that the Explanation has to cover the whole period of delay. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 However, it is not possible to lay down precisely as to what facts or matters would constitute `sufficient cause' under Section 5.  What would be such necessary steps will again depend upon the circumstances of a particular case.  Discretion is conferred on the Court after keeping in view relevant principles. ✔ Explanation to Section 5 says that,  The fact that the appellant or the applicant was misled by any order, practice or judgement of the High Court in ascertaining or computing the prescribed period may be "sufficient cause" within the meaning of this Section ". ✔ The following are some examples of what is and what is not "Sufficient Cause" :  (1) Illness : ● Illness is considered as `sufficient cause' to get benefit of Section 5. ● Provided, it is shown that the appellant or applicant was utterly disabled to attend to any duty.  (2) Imprisonment : ● A person can be given the benefit of Section 5 if he is undergoing imprisonment due to some criminal act. ● The time spent by him in the jail may be deducted from the prescribed period of time.  (3) Mistaken Legal Advice : ● A mistaken advice given by a legal practitioner may in circumstances of particular case give rise to `Sufficient Cause' within the meaning Section 5. ● In State of W.B. v. The Administrator, Howrah Municipality, AIR 1972 SC 749, it was held that  if a party had acted in a particular manner on a wrong advice given by his legal advisor,  he cannot be held guilty for negligence so as to dis-entitle the party to plead sufficient cause under Section 5 provided that no negligence, nor inaction nor want of bonafides is imputable to a party.  (5) Minority : ● u/s 6, minority is a sufficient cause for delay under the Limitations Act 1963. ● Sec-6 :  (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, • at the time from which the prescribed period is to be reckoned, • a minor or insane, or an idiot, • he may institute the suit or make the application within the same period • after the disability has ceased. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 (6) Illiteracy : ● The fact that appellant was illiterate is not sufficient reason to condone the delay.  (7) Delay in obtaining copies : When a delay is caused:  (a) obtaining a copy of the order or decree of a court and such delay was caused by the officer of the court.  (b) by the court itself in issuing orders.  (c) due to the method wrongly adopted in procuring the copy of the decree or order of the court. ● Such delay shall be deemed as sufficient cause for granting benefit of Section 5 of this Act. ✔ Guidelines in deciding “sufficiency of cause” :  In Collector of Land Acquisition v. Mst. Katiji AIR 1987 SC 1353 Supreme Court laid down following principles for dealing the application under Section 5 : ● (i) Ordinarily a litigant does not stand to benefit by lodging an appeal late. ● (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. ● (iii) The doctrine must be applied in a rational common sense pragmatic manner. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? ● (iv) When substantial justice and technical considerations are pitted against each other,  cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done of a non-deliberate delay. ● (v) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence; or on account of mala fides. A litigant does not stand to benefit by resorting to delay. ● (vi) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and it is expected to do so. ✔ Summary :  The Courts should adopt liberal approach in the matter of condonation of delay keeping in view the above principles. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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➔ Explain the effect of "Mistake" and "Fraud" on the period of limitation. (Oct-2013) ✔ Explain : Effect of death on period of limitation. ✔ Explain : Effect of "Fraud" and “Mistake” on period of limitation. (Nov-2014) ✔ Write note : Limitation Act : Effect of Fraud and "Mistake' on the period of Limitation. (Dec-2015, Apr-2016) ANSWER : ✔ Refer :  http://hanumant.com/Limitation-FraudMistake.html ✔ Effect of death :  Definition : Sec-16 of Limitation Act : ● 1. Where a person who would, if he were living, have right to institute a suit or right to make application, dies before such right accrues or where right to institute suit or make application assures only on the death of a person,  the period of limitation shall be computed • from the time when there is a legal representative of deceased • capable of instituting such suit or making such application. ● 2. Where a person against whom, if he were living, a right to institute suit or make application would have accrued, dies before such right accrues or where right to institute a suit or make application against any person-accrues only on death of such person,  the period of limitation shall be computed • from the time when there is legal representative of deceased • against whom plaintiff may institute such suit or make such application." ● 3. Above provisions do not apply to  suits for the possession of immovable property or of a hereditary office. ✔ Effect of fraud or mistake :  Period of limitation starts only after fraud or mistake is discovered by affected party.  Case : CC v. Candid Enterprises 2001(130) ELT 404 (SC 3 member bench). ● Vidarbha Veneer Industries Ltd. v. UOI - 1992 (58) ELT 435 (Bom HC),  it was held that limitation starts from the date of knowledge of mistake of law.  It may be even 100 years from date of payment.  The cardinal principal enshrined in section 17 of Limitation Act is that fraud nullifies everything. ● Thus, appeal against the party can be admitted beyond limitation, if party has committed fraud (in submitting non-genuine documents at adjudication in this case) CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Definition : Sec-17 Limitation Act 1963 : Effect of fraud or mistake :● (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act• (a) The suit or application is based upon the fraud of the defendant or respondent or his agent; or • (b) The knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or • (c) The suit or application is for relief from the consequences of a mistake; or • (d) Where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him;  The period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake • or could, with reasonable diligence, have discovered it, • or in the case of concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:  Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against or set aside any transaction affecting, any property which• (i) In the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or • (ii) In the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know that the mistake had been made, or • (iii) In the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. ● (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation,  the court may (on the application of the judgment-creditor made after the expiry of the said period) extend the period for execution of the decree or order :  Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be. ✔ Effect of acknowledgment in writing : CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 Definition : Sec-18 Limitation Act 1963 :  (1) Where before the expiration of the prescribed period for a suit or application in respect or any property or right, ● an acknowledgment of liability in respect of such property or right,  has been made in writing  signed by the party against whom such property or right is claimed, • or by any person through whom he derived his title or liability, ● a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.  (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed;  Note : Oral evidence of time of signing is OK, • but, subject to the provisions of the IE 1872, oral evidence of its contents shall not be received.  Explanation - For the purposes of this section : ● (a) An acknowledgment may be sufficient though it,  omits to specify the exact nature of the property or right,  or avers that the time for payment, delivery, performance or enjoyment has not yet come  or is accompanied by refusal to pay, deliver, perform or permit to enjoy,  or is coupled with a claim to set-off,  or is addressed to a person other than a person entitled to the property or night; ● (b) The word "signed" means signed either personally or by an agent duly authorized in this behalf ; and ● (c) An application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.  Subbarsadya vs Narashimha, AIR 1936 : ● It is not necessary that  an acknowledgment within Section 18 must contain a promise to pay or should amount to a promise to pay.  Mere acknowledgement of liability is enough. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ What matters should be considered by a Court in a suit by or against minors ? (Nov2012, Oct-2013) CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ Discuss : Suits by or against Minors and Persons of Unsound Mind. ✔ Discuss : Effect of Minority on period of limitation. ✔ Explain the provisions relating to the suit by or against minor with decided cases. (Nov-2014) ✔ Explain in detail the provisions relating to suit by or against the “Minor” with case laws. (Apr-2016) ANSWER : ✔ Refer :  https://www.scribd.com/doc/154007184/civil-procedure-code-1908  https://www.lawfinderlive.com/bts4/cpc.htm  https://www.lawfinderlive.com/bts4/LIMITAT.htm ✔ Suits by or against Minors and Persons of Unsound Mind :  Note : This answer is written in reference to “minor”, ● however, same holds true in case of a “persons of unsound mind” as well. ✔ Intro :  According to the Indian Majority Act, a Minor is a person ● (i) who has not attained the age of 18 years and ● (ii) for whose person or property a guardian or next friend has been appointed by the Court of wards.  The age of majority is completed at the age of 21 years.  Since a Minor is not capable of entering into a contract, even suit, which is instituted by him, will be filed in his name by his “next Friend”,  Order 32 of Civil Procedure Code prescribe the procedure of suits to which minor or persons of unsound mind are parties. ✔ i) If plaintiff is a minor –  O32 R1 lays down that, ● every suit by Minor shall be instituted in his name by a person who in such suit shall be called the `Next friend' of the Minor.  Such a person is to be a major and legally capable of acting on behalf of the minor.  If the interests of the next friend are contrary to those of the minor, he is automatically taken as a defendant, in case the minor is the plaintiff.  Suits instituted without next friends of minors may be removed if the defendant applies for such removal. ✔ (ii) If defendant is a minor –  O32 R3 provides that, ● Where the defendant is a minor, the court shall appoint a proper person to be guardian for the suit for such minor. CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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● An order for the appointment of a guardian for the suit  may be obtained upon application in the name and on behalf of the minor  and such applications shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor • and that he is a fit person to be so appointed. ● No order shall be made on any application under this Rule  except upon notice to the guardian of the minor, and  after hearing any objection which may be urged on behalf of such guardian. ✔ WHO can be appointed as “next friend” or “guardian” ad litem (ie for the suit)?  O32 R4 : Next friend or a guardian of a minor can be, ● any other person who  has attained majority in some way  and is of sound mind  and shall not be a defendant or plaintiff for the suit  IF a minor already has a guardian appointed or declared by competent authority, ● no person other than such guardian shall act (be appointed) as the next friend,  unless the court considers, for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed.  No person shall without his consent in writing, be appointed guardian for the suit.  The courts can order the next friend to give security for payment of all the costs incurred or likely to be incurred by the defendant.  In Asharfi Lal v. Smt. Koili AIR 1995 SC 1440 Supreme Court has observed that, ● in case of a decree against minor, minor can file suit to set aside the decree if there is gross negligence on the part of his "next friend." ✔ Effect of non-compliance with appointment of “next friend” or “guardian” :  Minor as plaintiff : O32 R2 : ● Where a suit is instituted by or on behalf of a minor without a next friend,  the defendant may apply to have the plaint taken off the file with costs to be paid by the pleader or other person by whom it was presented.  Minor as defendant : ● If a minor defendant is sued without a guardian,  then, the decree in favour of the plaintiff is a nullity and inoperative and it cannot be enforced against the minor. ● In RE: [Ram Chandra vs Ram Singh], 1968 - SC held that  a decree passed against a minor or a lunatic,

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• without appointment of a guardian is nullity and is void. ✔ Agreement or Compromise by next friend or guardian on behalf of minor :  O32 R6 : ● A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor  O32 R7 : ● No next friend or guardian for the suit shall,  without the leave of the court, expressly recorded in the proceedings,  enter into the agreement or compromise on behalf of a minor  with reference to the suit in which he acts as next friend or guardian.  O32 R1A : ● An application for obtaining the leave of the court shall be accompanied by • an affidavit of the next friend or the guardian for the suit; • and also by the certificate of the pleader (IF minor is represented by a pleader),  to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor. ● Provided that the opinion so expressed, whether in the affidavit or in the certificate,  shall not preclude the court from examining whether the agreement or compromise proposed is for the benefit of the minor.  Thus, according to the CPC provisions, ● it is the duty of the court to safeguard the interest of the minors ● and any compromise which is not beneficial to the interest of the minor should not be allowed.  A minor can challenge compromise decree passed against him on following grounds ● (i) that the compromise has been effected without the leave of the court ● (ii) that the next friend or guardian ad litem has been guilty of gross negligence and ● (iii) that there has been fraud or collusion on the part of next friend or guardian ad litem. ✔ In Kumari Manju Gupta v. National Insurance Co. 1993 H.V.D. Vol. IV Page 357 it was held that,  in a claim petition on behalf of a minor, no settlement can be arrived at, without leave of the court as required under O32 R7.  Provisions contained in Rules 6 and 7 of Order 32 are mandatory ● and Addl. District Judge could not legally act upon that settlement without CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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applying its mind to see whether amount agreed between parties is adequate to compensate the minor girl. ✔ In Sant Bhushan Lal v. Brij Bhushan Lal, AIR 1967 Del. 137, it was held that  where a next friend or guardian of minor enters into a compromise on his behalf with permission of the court under Order 32 Rule 7 ● the compromise and decree based thereon would be as much binding on the minor as it is on adult parties, ● unless the minor can show that the next friend or his guardian was guilty of fraud or negligence. ✔ Options of minor on attaining majority :  On attaining majority, it shall be at the option of the minor plaintiff whether to proceed with the suit or opt out.  In case he opts to proceed with the suit, he will have to make an application for discharge of “Next Friend”, and permission to proceed on own name.  In case he opts out, he can apply for an order to dismiss the suit/ application on making payment of costs incurred by the opposite party or which has been paid by his next friend. ✔ Effect of Minority on period of limitation :  This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss under Limitation Act : Effect of "part Payment” on limitation. (Nov-2011) ANSWER : ✔ Refer :  This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : Foreign rule of limitation : contract entered into under a foreign law. ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/LIMITAT.htm  ✔ Sec-11 of Indian Limitation Act says : (1) Suits instituted in the territories to which this Act extends ● on contracts entered into a foreign country CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 shall be subject to the rules of limitation contained in this Act.  (2) No rule of limitation in force in a foreign country ● shall be defence to a suit instituted in the said territories ● on a contract entered into in that foreign country unless (a) the rule has extinguished the contract; and  (b) the parties were domiciled in that foreign country during the period prescribed by such rule. ✔ Thus, the rules which apply to the case of contract made in one country and put in suit in court of another country are the following : (A) The interpretation of the contract is governed by the law of the country where the contract was made.  (B) The mode and the time limit within which the action relating to any contract, must be brought and is governed by law of country where the action is brought. ✔ Thus, the mere fact that a suit on foreign contracts is not barred under the foreign law  will not enable the plaintiff to bring the suit on the claim barred in this country,  because the person suing in this country should in matters of procedure take the law as he finds it there.  Even where a suit has been dismissed (not extinguished) in a foreign country on the ground of limitation, a fresh suit can be brought in this country within the period prescribed by Indian Limitation Act. ✔ In Ganga Prasad v. Ganesh Lal, AIR 1924 All. 161, it was observed that,  where the plaintiff obtains a judgment in a foreign court ● on a claim which though not barred under the foreign law would be barred under the Limitation Act.  Thereafter the plaintiff brings a suit on the foreign judgment in an Indian Court.  Here, it would be no defence to rely on the plea of the limitation, ● because the foreign judgment is valid according to the let for and is conclusive.  Foreign judgment could be impugned only on any of the grounds enumerated in Section 13 of the Code of Civil Procedure.  The result would be the same even if the contract had been made originally in India. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Explain under the Indian Limitation Act : Effect of the Acknowledge on the period of limitation. (Apr-2016)

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✔ Discuss under Limitation Act : Effect of “Acknowledgement in Writing" on limitation. (Nov-2011) ✔ When and under what circumstances acknowledgement in Writing can extend the period of limitation ? (Nov-2012, Oct-2013) ✔ Explain : Effect of acknowledgment in writing on account of debt on period of limitation. (Nov-2014) ANSWER : ✔ Refer :  http://hanumant.com/Limitation-FraudMistake.html  https://www.lawfinderlive.com/bts4/LIMITAT.htm ✔ Effect of acknowledgment in writing :  Sec-18(1) : ● If acknowledgment of any property is right or liability is obtained in writing  duly signed by the party against whom such property, right or liability is claimed,  before the expiration of period of limitation,  THEN, a fresh period of limitation is computed from date of acknowledgment.  Explanation - For the purposes of this section, ● (a) An acknowledgment may be sufficient though,  it omits to specify the exact nature of the property or right,  or avers that the time for payment, delivery, performance or enjoyment has not yet come  or is accompanied by refusal to pay, deliver, perform or permit to enjoy,  or is coupled with a claim to set-off,  or is addressed to a person other than a person entitled to the property or night; ● (b) The word "signed" means signed either personally or by an agent duly authorized in this behalf ; and ● (c) An application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.  (Subbarsadya v.Narashimha, AIR 1936 Mad.939) ● It is not necessary that an acknowledgment within Section 18 must contain a promise pay or should amount to a promise to pay. ✔ Essential ingredients of acknowledgement in writing :  (i) there must be an admission or acknowledgement by the party against whom such property or right is claimed.  (ii) it should be in writing and signed by the party CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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 (iii) such acknowledgement must be of a liability in respect of property or right  (iv) it must be made before the expiry of period of limitation ✔ The principle on which Section 18 is based is that,  the bar of limitation should not be allowed to operate in cases in which the existence of a claim is acknowledged by persons who are under the liability. ✔ THUS,  where prescribed period for suit or application in respect of some property or right has begun to run but has not expired, ● and an acknowledgement in writing of such right has been made, ● then, a fresh period of limitation should be computed from the time when the acknowledgement was so signed. ✔ Effect of payment on account of debt or of interest on legacy :  Sec-19 : ● Where payment on account of a debt or of interest on a legacy is made  before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly Authorized in this behalf,  then, a fresh period of limitation shall be computed from the time when payment was made:  In Hindustan Apparel Industries v. Fair Deal Corp. AIR 2000 Guj 261 it was held that ● 1. A cheque would prima facie amount to an admission of debt unless contrary intention has been expressed by the person issuing the cheque." ● 2. the payment of cheque which is dishonoured would amount to acknowledgement of debt and liability  and by necessary consequence there will be saving of limitation as envisaged by Section 18 of Limitation Act. ✔ Section 20 of the Limitation Act 1963 provides for,  effect of acknowledgment or payment by another person. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4 ➔ Discuss : continuing tort and continuing breach of contract. ✔ Write note : Limitation Act : Effect of Period of Limitation on continuing breaches and torts. (Dec-2015) ANSWER : ✔ Refer :  https://www.lawfinderlive.com/bts4/LIMITAT.htm CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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✔ Meaning of Continuing Tort :  A wrongful act complained of creates a continuing source of injury in case of a continuing tort.  Illustrations : ● continuing presence of an obstructions to a drainage channel or to a water course. ● an infringement of a trade mark or copy right ● refusal of wife to maintain conjugal rights, by not returning back to her husband's house etc. ● a continued trespass upon immovable property of others  The continuing tort renders a person liable for its continuing acts ● and every such moment is continuous source for which a fresh action can be maintained. ✔ Meaning of Continuing breach of contract :  Breach of contract occurring on discrete successive occasions is called Continuing breach of contract.  The examples of continuing breaches are, ● failure to pay rent, interest or other sums payable periodically.  The cause of action for each of such breach arise from the date of such breaches.  A distinction can be made between `continuing breach' from `successive breaches'.  The successive breaches can also cause an independent cause of action but it should be within the period of limitation.  A suit for the recovery of interest or rent, as such, cannot be instituted after the expiry of the period of three years from the date when it became due. ✔ Continuing breaches and torts :  Sec-22 : ● In the case of a continuing breach of contract or in the case of a continuing tort, ● a fresh period of limitation beings to run  at every moment of the time during the breach or the tort, continues.  Object : ● The provisions contained in Section 22 of this Act aim,  to prevent multiplicity of suits,  and to enable a person to bring a cause of action for all losses suffered by him during the whole period when such breach continues. This is Module-4. Menu ---> CONTENTS | Module-1 | Module-2 | Module-3 | Module-4

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*** End-of-Compilation *** Source : Public domain print/ internet contents. URLs of some such resources are listed herein above. Credits/ copyrights duly acknowledged. Suggested Readings : ➔ Mulla, Code of Civil Procedure, Universal, Delhi. ➔ C.K. Thakker, Code of Civil Procedure, Universal, Delhi. ➔ M.R. Mallick (ed), B.B. Mitra on Limitation Act, Eastern Lacknow. ➔ Majumdar P.K. and Kataria R.P. Commentary on the Code of Civil Procedure, 1908, Universal, Delhi. ➔ Jain M.P., Code of Civil Procedure with Amendments, Wadhwa ➔ Shah A.N. The code of civil procedure, Universal, Delhi. Sarkar's Law of Civil Procedure, Vols, Universal, Delhi. ➔ Sukumar Ray, Textbook on the Code of Civil Procedure, Universal Law Book Co. ➔ Dr. Avtar Singh, Code of Civil Procedure, Central Law Publication ➔ Universal's Code of Civil Procedure ➔ Jain MP, The Code of Civil Procedure, Wadhwa Nagpur Publication ➔ Avtar Singh, Code of Civil Procedure, Central Law Publication ➔ Mathur D. N., The Code of Civil Proceudre, Central Law Publication ➔ U. N. Mitra, Limitation and Prescription ➔ AIR Commentaries on the Limitation Act ➔ S. R. Myneni, Law of Limitation, Asia Law House, Hyderabad

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