Jurisdiction of the Courts and Res Judicata Jurisdiction of the Courts and Res Judicata Section 9:
Section 9:
- This section gives jurisdiction to try all suits of a civil nature excepting - This section gives jurisdiction to try all suits of a civil nature excepting those which are expressly or impliedly barred by
those which are expressly or impliedly barred by any other law.any other law. [A 1969 SC 439]
[A 1969 SC 439]
- The jurisdiction of civil court is all embracing except to the extent it is - The jurisdiction of civil court is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from excluded by an express provision of law or by clear intendment arising from such law.
such law. This is This is the purpose the purpose of Sec. 9of Sec. 9.. [AIR 1969 SC 78]
[AIR 1969 SC 78]
- Consent a failure to object cannot give jurisdiction where there is inherent - Consent a failure to object cannot give jurisdiction where there is inherent want of jurisdiction.
want of jurisdiction. [AIR 1954 SC 340] [AIR 1954 SC 340] -
- WhWhen en coconcncururrerent nt jujurisrisdidictctioion n is is veveststed ed in in twtwo o cocoururtsts, , obobjejectctioion n toto jurisdiction can be wai
jurisdiction can be waived by a party.ved by a party.
- But where two courts or more have under the code jurisdiction to try a suit - But where two courts or more have under the code jurisdiction to try a suit or proceeding an agreement between the parties that dispute between them or proceeding an agreement between the parties that dispute between them should be tried by one of such courts would be valid being not contrary to should be tried by one of such courts would be valid being not contrary to public policy and
public policy and to section 28 of Contract to section 28 of Contract Act.Act. [A 1971 SC 740]
[A 1971 SC 740] - Civil court has
- Civil court has inherent power to decide the question of its inherent power to decide the question of its own jurisdictionown jurisdiction although as a result of its enquiry it may turn out that it has no jurisdiction although as a result of its enquiry it may turn out that it has no jurisdiction over the suit.
over the suit. [1953 SCR 185] [1953 SCR 185]
- When civil court has no jurisdiction over subject-matter of a suit it cannot - When civil court has no jurisdiction over subject-matter of a suit it cannot decide any question on merits, it can simply decide question of jurisdiction decide any question on merits, it can simply decide question of jurisdiction and order return of
and order return of plaint for presentation to proper court.plaint for presentation to proper court. [A 1956 SC 388]
[A 1956 SC 388]
- Prima facie suits raising questions of religious rites and ceremonies only - Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil court, for they do not deal with legal rights of are not maintainable in a civil court, for they do not deal with legal rights of parties.
parties. But But accepting accepting this this undoubted undoubted legal legal position position the the legislature legislature hashas added Explanation 1 to the section which implies two things, viz., (i) a suit added Explanation 1 to the section which implies two things, viz., (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to even if the said right depends entirely upon a decision of a question as to rel
religiigious ous ritrites es or or cerceremoemonienies s and it and it impimplielies s furfurthether r thathat t quequestistions ons as as toto religi
religious rites ous rites or ceremonies cannot indepeor ceremonies cannot independenndently of tly of such a such a righright t form theform the subject matter of a civil suit.
subject matter of a civil suit. [A 1961 SC 1720]
- Explanation II only clarifies the position further by saying that in order to - Explanation II only clarifies the position further by saying that in order to maint
maintain a ain a suit it is suit it is immatimmaterial that an erial that an officoffice as e as referrereferred to d to in Explanain Explanation Ition I carries any fees or not or is attached to a particular spot or not.
carries any fees or not or is attached to a particular spot or not. “Court”
“Court”
- In order to constitute a court in the strict sense of the term, an essential - In order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the condition is that the court should have, apart from having some of the tra
trappppining g of of a a jujudidicicial al trtribibununalal, , popowewer r to to gigive ve a a dedecicisision on or or a a dedefifininitete judgement, which has finality and auth
judgement, which has finality and authoritativeness, which are essential testsoritativeness, which are essential tests of a judicial pronouncement.
of a judicial pronouncement. [AIR 2000 SC 2023]
[AIR 2000 SC 2023]
Exclusion of Civil Court’s
Exclusion of Civil Court’s Jurisdiction:Jurisdiction: -A exclusion of jurisdiction of civil court is
-A exclusion of jurisdiction of civil court is not to be readily inferred.not to be readily inferred. [A 1969 SC 78]
[A 1969 SC 78]
- The normal rule of law is that civil courts have jurisdiction to try all suits - The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by of civil nature except those of which cognizance is either expressly or by neces
necessary implicsary implication excation excludedluded. . The rule of constructThe rule of construction being that everyion being that every presumption would be
presumption would be made in made in favour of favour of existence of existence of a right a right and remedy and remedy inin a democratic set-up governed by rule of law and jurisdiction of the civil a democratic set-up governed by rule of law and jurisdiction of the civil co
coururts ts is is asassusumemed. d. ThThe e exexclclususioion n wowoululd, d, ththererefeforore, e, nonormarmalllly y be be anan exception.
exception.
[AIR (1997) 5 SCC 460] [AIR (1997) 5 SCC 460]
- Question relating to disputed claims of parties for title to an immovable - Question relating to disputed claims of parties for title to an immovable property can be
property can be decided only by the decided only by the competent civil court, in competent civil court, in the absence of the absence of machinery in the special enactment to determine disputes relating to title machinery in the special enactment to determine disputes relating to title between
between two two rival rival claimants, claimants, the the jurisdiction jurisdiction of of the the civil civil court court is is notnot excluded.
excluded.
[(2000) 5 SCC 652] [(2000) 5 SCC 652]
- Statutes ousting jurisdiction must be strictly construed. - Statutes ousting jurisdiction must be strictly construed. [A 1966 SC 1718]
[A 1966 SC 1718] -
- In case In case of doubt as of doubt as to jurisdito jurisdictionction, , court must lean towards assumpcourt must lean towards assumption of tion of jurisdiction.
jurisdiction.
[A 1955 SC 576] [A 1955 SC 576]
- The Civil Court does not have jurisdiction to decide matters which are - The Civil Court does not have jurisdiction to decide matters which are required to be dealt with by the Tr
required to be dealt with by the Tribunal created under Statute.ibunal created under Statute. [(2002) 4 SCC 481]
- Explanation II only clarifies the position further by saying that in order to - Explanation II only clarifies the position further by saying that in order to maint
maintain a ain a suit it is suit it is immatimmaterial that an erial that an officoffice as e as referrereferred to d to in Explanain Explanation Ition I carries any fees or not or is attached to a particular spot or not.
carries any fees or not or is attached to a particular spot or not. “Court”
“Court”
- In order to constitute a court in the strict sense of the term, an essential - In order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the condition is that the court should have, apart from having some of the tra
trappppining g of of a a jujudidicicial al trtribibununalal, , popowewer r to to gigive ve a a dedecicisision on or or a a dedefifininitete judgement, which has finality and auth
judgement, which has finality and authoritativeness, which are essential testsoritativeness, which are essential tests of a judicial pronouncement.
of a judicial pronouncement. [AIR 2000 SC 2023]
[AIR 2000 SC 2023]
Exclusion of Civil Court’s
Exclusion of Civil Court’s Jurisdiction:Jurisdiction: -A exclusion of jurisdiction of civil court is
-A exclusion of jurisdiction of civil court is not to be readily inferred.not to be readily inferred. [A 1969 SC 78]
[A 1969 SC 78]
- The normal rule of law is that civil courts have jurisdiction to try all suits - The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or by of civil nature except those of which cognizance is either expressly or by neces
necessary implicsary implication excation excludedluded. . The rule of constructThe rule of construction being that everyion being that every presumption would be
presumption would be made in made in favour of favour of existence of existence of a right a right and remedy and remedy inin a democratic set-up governed by rule of law and jurisdiction of the civil a democratic set-up governed by rule of law and jurisdiction of the civil co
coururts ts is is asassusumemed. d. ThThe e exexclclususioion n wowoululd, d, ththererefeforore, e, nonormarmalllly y be be anan exception.
exception.
[AIR (1997) 5 SCC 460] [AIR (1997) 5 SCC 460]
- Question relating to disputed claims of parties for title to an immovable - Question relating to disputed claims of parties for title to an immovable property can be
property can be decided only by the decided only by the competent civil court, in competent civil court, in the absence of the absence of machinery in the special enactment to determine disputes relating to title machinery in the special enactment to determine disputes relating to title between
between two two rival rival claimants, claimants, the the jurisdiction jurisdiction of of the the civil civil court court is is notnot excluded.
excluded.
[(2000) 5 SCC 652] [(2000) 5 SCC 652]
- Statutes ousting jurisdiction must be strictly construed. - Statutes ousting jurisdiction must be strictly construed. [A 1966 SC 1718]
[A 1966 SC 1718] -
- In case In case of doubt as of doubt as to jurisdito jurisdictionction, , court must lean towards assumpcourt must lean towards assumption of tion of jurisdiction.
jurisdiction.
[A 1955 SC 576] [A 1955 SC 576]
- The Civil Court does not have jurisdiction to decide matters which are - The Civil Court does not have jurisdiction to decide matters which are required to be dealt with by the Tr
required to be dealt with by the Tribunal created under Statute.ibunal created under Statute. [(2002) 4 SCC 481]
:Seven proposition regarding exclusion of
:Seven proposition regarding exclusion of jurisdiction:jurisdiction:
- The following seven propositions of law regarding exclusion of jurisdiction - The following seven propositions of law regarding exclusion of jurisdiction of civil court have been laid
of civil court have been laid
down:-(1) Where the statute gives a finality to the orders of the special tribunals the (1) Where the statute gives a finality to the orders of the special tribunals the civil courts’ jurisdiction must be held to be excluded if there is adequate civil courts’ jurisdiction must be held to be excluded if there is adequate rem
remededy y to do to do whwhat the civat the civil couil court wourt would norld normamalllly y do in do in a a susuitit. . SuSuchch provision, however, does no
provision, however, does not exclude those cases where the pt exclude those cases where the provisions of therovisions of the particular Act
particular Act have not have not been complied been complied with or with or the statutory the statutory tribunal has tribunal has notnot acted in conformity with the fundamental principles of judicial procedure. acted in conformity with the fundamental principles of judicial procedure. (2
(2) ) WhWherere e ththere ere is is an an exexprpresess s babar r of of ththe e jujuririsdsdicictition on of of ththe e cocoururt, t, anan examination of the scheme of the particular Act to find the adequacy or examination of the scheme of the particular Act to find the adequacy or sufficiency of the remedies provided may be relevant but is not decisive to sufficiency of the remedies provided may be relevant but is not decisive to su
suststaiain n ththe e jujuririsdsdicictition on of of ththe e cicivivil l cocoururt. t. WhWherere e ththere is ere is no no exexprpresesss exclusion the examination becomes necessary to find out
exclusion the examination becomes necessary to find out the intendment andthe intendment and the result of t
the result of the inquiry may he inquiry may be decisive. be decisive. In the later In the later case it is necase it is necessary tocessary to see if the statute creates a special right or a liability and provides for its see if the statute creates a special right or a liability and provides for its determination and further lays down that all questions about the said right or determination and further lays down that all questions about the said right or liability shall be determined by the tribunals so constituted, and whether liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed.
remedies normally associated with actions in civil courts are prescribed. (3) Challenge to the provisions of the particular Act as ultra vires cannot be (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought
brought before before tribunals tribunals constituted constituted under under that that Act. Act. Even Even the the High High CourtCourt cannot go into that question on revision or reference fr
cannot go into that question on revision or reference from the decision of theom the decision of the tribunal.
tribunal. (4
(4) ) WhWhen en a a prproovvisisiion on is is alalrereadady y dedecclalarered d ununccononststititututiiononal al oor r tthehe constitutionality of any provision is to be challenged, a suit is open.
constitutionality of any provision is to be challenged, a suit is open. (5
(5) ) WhWherere e ththe e papartirticuculalar r AcAct t cocontntaiains ns no no mamachchininery ery fofor r rerefunfund d of of tataxx collected in excess of constitutional limits or illegally collected, a suit lies. collected in excess of constitutional limits or illegally collected, a suit lies. (6
(6) ) QuQuesestition on of of ththe e ccoorrrrecectntnesess s of of ththe e asassesessssmement nt apaparart t frfroom m ititss constitutionality are for the decision of the authorities and a civil suit does constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an not lie if the orders of the authorities are declared to be final or there is an expres
express prohibits prohibition in the partiion in the particular Actcular Act. . In eitheIn either case the scheme of ther case the scheme of the particular Act must be exami
particular Act must be examined because it is a relevanned because it is a relevant enquiry.t enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily to be (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.
inferred unless the conditions above set down apply. [A 1969 SC 78]
[A 1969 SC 78]
Once the court finds that it has no jurisdiction to try the suit, it has no Once the court finds that it has no jurisdiction to try the suit, it has no jurisdiction
jurisdiction to to decide decide the the suit suit on on merit merit or or to to decide decide question question of of thethe maintainability of the suit.
maintainability of the suit. [2002 (1) KLT 27]
:Section 9 and Section 96 (Appeal):
There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by a statute one may at one’s peril bring a suit of one’s choice. But a right of appeal is a creature of statute and an appeal for its maintainability must have clear authority of law.
[A 1974 SC 1126] :Impliedly barred:
- Implied exclusion of jurisdiction of civil court cannot be inferred from the mere fact of the existence of a statutory tribunal which may give the same relief as may be had in civil court. There must be something in the provisions of the statute constituting such tribunals for providing such proceeding to clearly rule out remedy of a suit in the civil court.
[A 1968 A 369 F.B.]
- Where a statutory enactment only creates rights/liabilities, but does not provided remedial forum, the door of the civil court are always open.
[(1993) 3 SCC 161]
- But where a complete machinery for redress is envisaged, civil court’s jurisdiction is implied barred.
[(1997) 5 SCC 536]
:Jurisdiction of a court:
- Jurisdiction is a wide sense means the extent of the power of the court to entertain suits, appeals and applications. In its technical sense jurisdiction means the extent of the authority of a court to administer justice not only with reference to the subject matter of the suit but also to the local and pecuniary limits of its jurisdiction.
- Jurisdiction of a court can be classified into three categories, viz. 1) Jurisdiction over subject matter
2) Territorial jurisdiction 3) Pecuniary jurisdiction
- The jurisdiction of a court may again be original or appellate. :Res-sub-Judice:
:Stay of Suits:
- Section 10 of the Code of Civil Procedure provides the rule with regard to stay of suits where matters are under consideration or pending adjudication by a court.
- The object of this section is to prevent two courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of
the same matter in issue.
- It is to obviate two contradictory decrees being passed in respect of the same subject matter between the same parties that the following conditions must be fulfilled:
1) A previously instituted suit is pending in a court;
2) The matter in issue in the suit is also directly and substantially in issue in a previously instituted suit;
3) The previously instituted suit must be pending in the same court in which the subsequent suit is brought, or in any other court in India or in any court beyond the limits of India established or continued by the Central Government or in the Supreme Court;
4) The court in which the previous suit is pending has jurisdiction to grant the relief claimed in the subsequent suit;
5) The parties in the subsequent suit must be the same as in the previously instituted suit; and
6) The parties must be litigating under the same title in both the suits.
Note
- The term ‘suit’ in this section includes appeal.
- The pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action. (vide Explanation)
- Section 10 is attracted when decision in previous suit operates as res judicata in subsequent suit. Section 10 merely lays down procedure
and does not vest any substantive rights in the parties. [1977 AIHC 2530 (Del)]
- Section 10 does not bar institution of the suit, it bar only trial. [2002 AIHC 1594 (P&H)]
- In many cases it is necessary for a party even to institute a second suit in order to save the limitation.
- Section 10 is not a bar of passing of interlocutory orders such as an order for consolidation of the later suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgement. The course of action which the court has to follow according to Section 10 is not to proceed with the ‘trial’ of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the
provision of the word ‘trial’ in section 10 is not used in its widest sense.
[AIR 1998 SC 1952] : Consolidation of suits :
- The words ‘no court shall proceed with the trial of any suit” were intended to bar the separate trial of any suit in which the matter in issue was also directly and substantially in issue in a previously instituted suit between the same parties. But these words do not apply to the simultaneous hearing of a later and earlier suit, after consolidation of the two section 10 was never intended to take away inherent power of the court to consolidate for the interests of justice.
[A 1960 A 184]
:Criminal Proceedings:
- As a principle of law, it cannot be said that whenever a criminal case is instituted, then the civil suit on the same cause must be stayed. The court may be guided by attending circumstances.
[AIR 1998 MP 191] :Res judicata:
- The doctrine of res judicata was recognized in Hindu Jurisprudence [20 CWN 738]
- Section 11 contains the rule of conclusiveness of the judgement which is based partly on the maxim “Interest republicae ut sit finis litium” (it
concerns the state that there be an end to law suits) and partly on the maxim “ Nemo debet bis vexari pro uno at eadem cause” (no man should be vexed twice over the same cause).
[Vide Section 40 IE Act and Section 300 Cr.P.C.]
- The maxim looks to the interest of the litigant, who should be protected from a vexatious multiplicity of suits, for, otherwise a man possessed of wealth and capacity to fight may overcome his adversary by constant dread to litigation.
- The second maxim is based on the ground of public policy that there should be an end to litigation.
- Judicial decisions must be accepted as correct, for, otherwise of suits were allowed to be filed endlessly for the same cause of action it will be impossible for existing courts to deal with the overgrowing number of suits. Unlimited or perpetual litigation disturbs the peace of the society and leads to disorder and confusion.
:Necessary conditions:
- The following conditions must be satisfied to constitute a bar of res judicata:
1) 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 constrictively, in the former suit.
In order that this condition may be fulfilled it must have alleged by one party and either denied or admitted expressly or by necessary implication by the other. It is, however, not necessary that a separate issue should have been raised upon it. It is enough if the matter was in issue in substance in the former suit as also in the subsequent suit.
1. It is only those matters which are directly and substantially in issue that constitute res judicata and not matters which are in issue only collaterally or incidentally.
2. The second essential condition to constitute the bar of res judicata is that the former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Res judicata not only affects
the parties to the suit, but also his privies, i.e. persons claiming under them. 3. The third essential condition to constitute bar of res judicata is that the parties must have litigated under the same title in the former suit. The
expression “same title” means in the same capacity. Thus a suit brought by a person to recover possession from a stranger a math property claiming it as fees of the deceased Mahunt is no bar to a suit by him as manager of the math if the first suit is dismissed on his failure to produce the succession certificate, for the two suits arise under different capacities.
4. The fourth condition is that the court where decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised. In its true conception a decree in a previous suit could not be pleaded as res judicata in a subsequent suit unless the judge by whom it was made has jurisdiction to try and decided not only the particular matter in issue in the former suit but also the subsequent suit itself in which the issue is subsequently raised.
5. The last condition is that the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the first suit. The section requires that there should be a final decision on which the court has exercised its judicial mind. It is necessary that the decision in the former suit must have been on merits.
- The doctrine of res judicata or constructive res judicata predominantly is a principle of equity, good conscience and justice. It would neither be
equitable nor fair nor in accordance with the principles of natural justice that the issue concluded earlier ought to be permitted to be raised later in a different proceeding.
[AIR 2000 SC 3335]
- Section 11 operated against both the parties to a suit and not against the defendants alone.
[AIR 1998 Mad 218]
- The basic principle of the rule of res judicata is that the cause of action for the second suit being merged in the judgement of the first, it does not any more survive. Res judicata is sometimes treated as estoppel by judgement. The distinction between the two is that res judicata ousts the jurisdiction of the court, while estoppel is not a rule of substantive law in the sense that it does not declare any immediate relief or claim. It is a rule of evidence.
[36 B 214]
- Section 11 is mandatory. Its principle, however, is modified by section 44 Evidence Act and one of the parties to the former suit can only avoid res judicata by proving that the judgement was obtained by fraud or collusion or passed by a court without jurisdiction.
[41 CWN 267]
- Principles of res-judicata cannot be allowed to defeat the provisions of a statute which takes away the jurisdiction of a court and a party is not estopped from raising the question or such jurisdiction in subsequent proceeding.
[A 1965 SC 338] [Vide Section 21]
- When, however, the court does not suffer from any inherent lack of jurisdiction, if no objection is raised to the jurisdiction of the court passing
the decree the defendant cannot challenge the validity of the decree in a subsequent proceeding by the principles of constructive res judicata.
[A 1953 SC 53]
- A decision by a court without jurisdiction is a nullity and it can have no effect either as estoppel or res judicata.
[Vide A 1971 SC 2355]
:Matter in issue and subject-matter of the suit:
- The “matter in issue” and not the subject-matter of the suit forms the essential part of res-judicata. The subject matter of the two suits may be different, the object of the suits, the reliefs asked and the causes of action
may also be different; but if the matter in issue in them is identical (i.e., if the same title had been litigated before), res judicata will apply.
[Vide A 1953 SC 33] :Former suit:
- Explanation I introduced in the Code of 1908 clarifies the meaning of ‘former suit’. The expression “former suit” denotes a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. The explanation is merely declaratory of the law.
[A 1963 SC 1]
- The expression “former suit” according to Explanation I makes it clear that, if a decision given before the institution of the proceeding sought to be barred by res judicata, is allowed to become final or becomes final by
operation of law, or bar of res judicata would emerge. Question of bar of res judicata does not depend on the existence of right of appeal against the two
decisions.
[A 1977 SC 168]
:Directly and substantially in issue:
- The words used in Section 11 CPC are “directly and substantially in issue”. If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. If a matter was only ‘collaterally or incidentally” in issue and decided in a earlier proceeding, the finding therein would not ordinarily be res judicata in a later proceeding where the matter is directly and substantially in issue.
[AIR 2000 SC 1238]
- A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the later is the principal issue. The expression ‘collaterally or incidentally’ in issue implies
that there is another matter which is ‘directly and substantially’ in issue. [AIR 2000 SC 1238]
- It is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in issue directly and substantially, and a matter cannot be said to be directly and substantially in issue in a suit unless it was alleged by one party and denied or admitted either expressly or by necessary implication by the other.
:Constructive Res-judicata:
- Any matter which might and ought to have been made a ground of attack or defence in the former suit shall be deemed to have been “directly and substantially in issue” in that suit (see Explanation 4). This is known as constructive res judicata. For the application of the principle of res judicata it is not necessary that the subject-matter of both suits should be the same; but that the matter in question is directly and substantially in issue in both
suits.
[2 CLJ 540]
- As regards the application of the rule of constructive res judicata in Explanation 4 the following points should be noted:
(1) No distinction has been made between a claim or defence actually made or which might or ought to have been made. By fiction of law the latter also is deemed to have been “directly and substantially in issue” in the former suit.
(2) The words “directly and substantially in issue” have reference to both the “suit” and to an “issue” in the suit.
(3) As Explanation 4 warrants the assumption that a matter which might and ought to have been made a ground of defence or attack in the former suit is to be deemed to have been “directly and substantially in issue” in such suit, it must also be assumed at the same time that such matter is to be “deemed to have been heard and finally decided” in the suit. No express finding (on a matter which might and ought to have been raised in the former suit) is necessary or possible as no decision by court can be expected on points not specifically raised before it.
[Vide 20 A 110]
(4) The word “might” presupposes that the party affected had knowledge of the ground of attack or defence at the time of the previous suit. The question whether a party had at that time knowledge or means of knowledge of the matter relied on in the subsequent suit is of great importance in the application of the rule.
[42 CWN 560]
(5) A party is bound to bring forward in the previous suit all the grounds of attack or defence that is available and possible for him according to this knowledge then.
- Although explanation 4 does not say in express terms that such a matter shall also be deemed to have been “heard and finally decided” unless such be its meaning there could be no purpose in introducing the explanation at all. A matter which is in the issue only constructively, could not in the very nature of things, have been actually heard and decided. So where the
question of jurisdiction depends upon the existence of a fact and a party to whom it was open to prove that fact does not do so, he is thereafter prevented by constructive res judicata from agitating the same.
[A 1961 C 422]
:‘Same parties or between parties under whom they or any of them claim’:
- In order that a person be bound by res judicata it must be shown that he was in some way a party to the suit, as a judgement binds only parties and privies. A party claiming under a party is known as privy. The ground of privity is property and not personal relation.
[8 A 324]
:“Litigating under the same title”:
- The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases.
[A 1953 SC 33]
:Explanation 8: Effect of:
[Note] – Insertion of explanation 8 by 1976 Amendment Act has widened the scope of section 11, as the limitation that both the courts should be also of concurrent pecuniary jurisdiction for a decision on an issue in a previously decided suit to be res judicata in subsequent suit has been removed. Thus, before the amendment in many cases when the matter directly and substantially in issue had been tried between the parties in the earlier court not competent to try the subsequent suit having regard to its pecuniary jurisdiction it had to be tried again. This was rather anomalous in view of the principles underlying res judicata, and this anomaly has been removed by this amendment.
- The expression ‘Court of limited jurisdiction’ in Explanation VIII is wide enough to include a court whose jurisdiction is subject to pecuniary limitation and other cognate expressions of analogous merits.
:“Heard and finally decided”:
- The bar under Section 11 of CPC applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means on the matter or
issue in question there has been all application of the judicial mind and a final adjudication mode. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground like misjoinder, that cannot operate as res judicata.
[Vide AIR 1996 SC 2367]
:Ex parte Decision and Res judicata:
- An ex parte decree can operate as res judicata because an ex parte decree is a decree on merits.
[AIR 1992 Gau 72]
- When the defendant remained absent in the earlier suit despite service of summons he cannot be permitted to say that no opportunity of hearing was given to him in earlier suit and hence the decision would not be binding on him.
[1999 AIHC 268 (Guj)]
- A decree even if ex parte will operate as res judicata in respect of all grounds of defence against the actual claim in the suit as also all matters inconsistent with such claim which might and ought to have been raised. [58 CWN 819]
- In the absence of fraud or irregularity, a decree obtained ex parte is binding for all purposes as a contested decree.
[20 CWN 48]
:Consent or Compromise Decree:
- A compromise decree or order does not operate as res judicata because the same is merely the record of a contract between the parties to a suit to which is super added the seal of the court and the court does not decide anything. [AIR 2002 Del 142]
- A judgement by consent is as effective as estoppel between the parties as a judgement whereby the court exercises its mind on a contested case.
:Place of suing: :Section 15:
- ‘Competent’ means having jurisdiction to try. - Jurisdiction has reference to:
(a) subject matter; (b) parties; (c) particular question which calls for decision and (d) pecuniary value.
- Obviously ‘competency’ in this section refers to pecuniary jurisdiction. - The section is a rule of procedure and not of jurisdiction and it does not, therefore, oust the jurisdiction of the courts of higher grades who have concurrent jurisdiction in the matter.
- The object is “that the court of the higher grade shall not be overcrowded with suits”.
[A 1944 A 1]
- The institution in a court of higher grade, of a suit, which ought to have been instituted in a court of lower grade is only all irregularity in procedure
and does not affect the jurisdiction of the court. [1997 AIHC 1549 (Raj)].
:Section 16:
- Section 16 is most important; sections 17 – 25 enlarge the scope of section 16.
:Proviso:
- The proviso is based on the maxim equity acts in personam.
- Under the proviso even though the immovable property is not situated within the jurisdiction of a court, a suit in respect of compensation to the immovable property may, at the option of the plaintiff, be instituted in that court if the person of the defendant or his personal property is within its jurisdiction.
Clause (e) refer to torts affecting immovable property e.g. trespass etc. :Section 17:
- The object of this section is to prevent multiplicity of suit.
- The properties may be in different districts but the plaintiff may bring one suit and select the forum.
:Section 19:
- This section applies to suits for wrong done to the person or the movable property of the claimant, while 16 (e) is applicable to torts affecting
immovable property.
- Under this section the suit can be instituted at the place where the wrong was done or at the place where defendant resides or carries on business.
- Though section 19 overlaps the provisions of section 20 to some extent, it is not in the nature of an exception to section 20. It is only an extension of section 20.
- Section 19 elucidates that the place where the wrong is done to the person or movable property is the place where cause of action arises within section 20 (c).
:Section 20:
- This is the general section covering all personal actions (i.e. relating to person or movable property) and as the opening words state, it is subject to
the provisions of section 16 – 19.
- Such personal actions shall be instituted in a court within whose local jurisdiction –
(a) the defendant actually resides or carries on business etc., or
(b) any of the defendants (where there are more than one) actually resides etc., and either the leave of the court has been taken or the other defendants acquiesce, or
(c) the cause of action or a part of it arises.
- The explanation points out that an incorporated company can be sued at its principal place of business, or if the cause of action arises at some other place and it has a subordinate place of business there, at that place also.
- Parties cannot by agreement confer jurisdiction on court which it does not possess under the code.
[A 1971 SC 740]
- Where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therewith, if the parties to the contract agreed to be jurisdiction in one such court to try the dispute which might arise as between themselves, the agreement would be valid. This cannot be understood as parties contracting against the
statute.
[AIR 1995 SC 1766]
- Where the hire purchase agreement between the parties provided that in the event of dispute between the parties, suit can be filed at a particular place,
suit cannot be filed at any other place. The parties are bound by agreement and it is not open to the parties to choose a different jurisdiction.
[AIR 2002 Ori 29]
- Agreement between parties with regard to exclusion of jurisdiction of a court is binding on parties thereto but a third party is not bound unless is shown that he is made aware of its implications.
[A 1985 AP 387]
- Where a person the purchaser of goods did not sign any order form to accept that in case of dispute the jurisdiction will rest only in courts in Baroda the seller cannot take advantage of the condition printed at the back of the invoices and contend that only the courts at Baroda will have jurisdiction.
[AIR 1994 Del 226]
- Where the contract only provided that the court in Neyveli shall have jurisdiction over all the matters and it did not exclude the jurisdiction of
other courts by using the words ‘alone’, ‘only’, ‘exclusive’, the jurisdiction of other courts to try the matter is not excluded.
[AIR 1992 Mad 332]
:Actually and voluntarily resides:
- In clauses (a) and (b) the residence referred to is at the time of the commencement of the suit.
- “Actually” indicates that constructive residence will not do. - “Voluntarily” implies that compulsory residence is excluded.
- “Voluntarily resides” does not refer to legal entity but to natural person. - “Voluntarily resides” or “personally works for gain” cannot be appropriately applied to Government.
[A 1963 SC 168]
- A suit can be filed against Government where the business is carried on. [A 1979 MP 96]
:Carries on Business:
- The Government can carry on business whether it yields profit or loss. [A 1963 SC 168]
- Where the state carries on business, the suit can be instituted at the principle place of general superintendence and management.
[Note:
- Special provision in Section 80 Railways Act as amended by Act 39 of 1961 excludes operation of section 20 C.P.C. and suits for compensation against railways can only be instituted in a court having jurisdiction over the place in which the goods were delivered for carriage or over the place in
which destination station lies or the loss or damage occurred. [A 1981 D 135]
- Receipt by a priest of offerings by devotees to a shrine is not “carrying on business”. The phrase is a very elastic one and is almost in capable of
definition. The court must in each case look to the particular circumstances. It is intended to relate to business in which a man might contract debts, and ought to be liable to be sued by persons who had business transactions with him.
[18 B 294 PC]
- “Business” has a very wide impact and would compose almost anything which is an occupation or duty which requires attention.
[A 1983 D 201]
- “Business” may be carried on through an agency or manager or servants also.
[A 1922 A 367]
:Personally work for gain:
- A man living outside jurisdiction but coming to work for gain e.g., a pleader, is working for gain.
:Cause of action, wholly or in part arises:
- The expression ‘cause of action’ has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the Court. Every fact which is necessary to be proved, as distinguishable from every piece of evidence which is necessary
to prove each fact, comprises in ‘cause of action’. It has to be left to be determined in each individual case as to where the cause of action arises. [AIR 2001 SC 416]
- In legal parlance the expression ‘cause of action’ is generally understood to mean a situation or state of facts that entitles a party to maintain all action in a court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a
remedy in Court from another person. [2000 (7) SCC 640]
- The expression “cause of action” means that bundle of facts which the petitioner must prove in order to entitle him to a judgement in his favour by the court. Whether any part of cause of action has accrued within the jurisdiction of a court would depend upon the facts and circumstances of the
given case.
[1996 (1) RLW 413]
- Each and every fact pleaded by the petitioner in their application would not give rise to a cause of action within the court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned.
[AIR 2002 SC 126]
- Cause of action must be antecedent to the institution of the suit. Future expectation of performance of contract does not constitute part of cause of action.
- In the case of a contract by tender when the offeror and offeree are at different places and the offer and acceptance are made by exchange of letters, the contract is complete when the letter of acceptance was posted. The place where the letter was of acceptance was posted will have jurisdiction to try the said arising out of the contract.
[AIR 1996 Del 92]
- In a suit for damages for wrongful termination of service, where terminating service was posted by the principal in Calcutta and received by the Agent in Madras, at least part of the cause of action arose in Madras. [A 1963 M 30]
:Explanation:
- This includes not only statutory corporation but also company registered under the Companies Act.
[A 1971 SC 740]
- When a corporation has a branch office at any place it shall be deemed to carry on its business there irrespective of the nature of the work that is actually carried on there.
- If no part of the cause of action arises at a branch office of the Corporation, suit is not maintainable in the court of the place where the branch office is located.
[A 1961 K 50] :Section 21:
- Old section 21 has been renumbered as sub section (1) and (2) and (3) have been added by CPC (Amendment) Act 104 of 1976.
- Sub section (2) makes the principle of sub section (1) [Old Section 21], which applies to territorial jurisdiction, applicable also to the pecuniary jurisdiction of a court.
- Sub section (3) makes similar express provisions as to the territorial competence of the court executing a decree.
- Section 21 (2) has placed want of pecuniary jurisdiction in the same footing as absence of territorial jurisdiction in section 21 (1).
- It should be noted that there is a difference between inherent lack of jurisdiction which goes to the root of jurisdiction or competence of a court to try a case and a mere lack of territorial or pecuniary jurisdiction – objection regarding which has been held as merely technical and not going to the root of the jurisdiction of the court to try a case. And it is also well settled that such objections can be waived by a party and is capable of being cured by acquiescence, order of court or in other respects as provided by law and a party subsequently be precluded from taking them, though consent and
waiver cannot cure inherent lack of jurisdiction. [Vide A 1966 SC 634]
- Where objection as to pecuniary jurisdiction is not raised earlier, there is waiver of the right to raise such objection.
[AIHC 5330 (J&K)]
- Objections relating to pecuniary or territorial jurisdiction should be raised at the earliest and if the parties omit to plead and raise the objection, at a later stage, unsuccessful party would be precluded to raise lack of jurisdiction.
[AIR 1996 SC 1567]
- In the absence of failure of justice, lack of territorial or pecuniary jurisdiction is a mere irregularity which does not make the decree nullity. Section 21 (2) is a statutory recognition of the principle that defect as to pecuniary jurisdiction may be waived by the defendant.
- What is relevant is whether the court had the power to grant the relief asked for in the application. It cannot be disputed that if it is held that the court had competence to pronounce on the issue presented for its decision then the fact that it decided that issue illegally or incorrectly is wholly beside the point.
[A 1969 SC 823]
- Existence of jurisdiction should not be confused with exercise of jurisdiction. When there is jurisdiction to decide, the decision of all question
is the cause is an exercise of jurisdiction; and a court has jurisdiction to decided wrong as well as right, and if decides wrong, the only way to set it right is to take the court prescribed by law, otherwise however wrong, it stands.
[A 1940 P 406].
- The objection as to want of absolute jurisdiction can be raised at any stage of the proceedings or in appeal or second appeal or revision or after remand in second appeal, if it does not depend upon disputed facts.
[23 CWN 1033]
- These principles do not, however, apply to decrees in matrimonial causes passed in contravention of mandatory provisions of law as they operate as judgements in rem as distinguished from other civil causes which operate as judgements in personam.
[A 1971 A 201]
:Conditions for the application of the Section are:
- For applicability of section 21 the Supreme Court laid down the three essentials:
(1) The objection was taken in the court of first instance.
(2) It was taken at the earliest possible opportunity and in cases where issues, at or before such settlement.
(3) There has been a consequent failure of judgement. [AIR 1981 SC 1683]
:Unless there has been failure of justice:
- Objection as to pecuniary jurisdiction was raised in the trial court and also in the appellate court. It was held that even if this objection was raised at the earliest opportunity in the trial court, unless it is shown in the appellate court that on account of trial by the wrong court, there has been failure of justice, the appellate court cannot interfere in the findings of the trial court on the ground of the jurisdiction of the court.
:Institution of Suits:
- The old section 26 prior to CPC (Amendment) Act, 1999 has been renumbered as sub section (1) and sub section (2) inserted by the amendment with effect from 1.7.2002.
- The sub section (2) provides that in every plaint, facts shall be proved by affidavit.
- This amendment has set at rest the different rules made by different High Courts regarding presentation of plaint and made a uniform rule of filing affidavit to prove facts in every plaint.
- The amending Act stipulates that the provisions of section 26 (2) C.P. Code shall not apply to or affect any suit pending immediately before the commencement of this amendment; and every such suit shall be tried as if this amendment had not come into force.
- After the amendment a plaint shall not be entertained without an affidavit in proof of facts stated in the plaint.
- The affidavit should contain the genuineness of the claim made by the plaintiff and the document on which he relies upon to establish his claim.
- If all the things are stated in the affidavit there may not be any need to have oral evidence.
- The suit may be decreed on the basis of the averments made in the affidavits unless they are contradicted by the opposite party.
:SUIT: Definition
- A ‘suit’ has not been defined.
- In terms of section 26 it can be taken to be a civil proceeding instituted by the presentation of a plaint or in any such other manner prescribed:
[A 1981 P&H 354]
- The section shows that the legislature did contemplate the institution of a suit other than by the presentation of a plaint. In the case of an application for leave to sue as pamper the date of the application is the date of the institution of the suit.
[A 1969 G 308]
:Parties to suits: :Order I:
- Order 1 Rule 1 and Order 1 Rule 3 are at practically the same terms.
- Both the rules deal with joinder of parties and also to a certain extent with joinder of causes of action and they should be read with Order 1 Rule 4.
- The test of joinder of plaintiffs now is not identity of cause of action but the identity of the act or transaction out of which the right to relief arises.
- The position is that plaintiffs having causes of action may join together in one suit provided the right to relief arises out of the same act or transaction. - The rule, therefore, enables several plaintiffs having separate causes of action to join in one suit subject to two conditions: viz.
(a) the right to relief which is alleged to exist must arise out of the same act or transaction; and
(b) if separate suits were brought by the plaintiffs any common question of law or fact would arise, i.e., there must be a common question of law or fact. - Although all persons coming within Rule 1 may join as plaintiffs, the court under Rule 2 has the power to order separate trials when any joinder embarrasses the trial.
- It is not necessary that all the interested parties should be before the court as plaintiffs some of them may be arrayed as the defendants also, if they refused to join as plaintiffs.
[A 1988 A 12] :Jointly:
- Persons who are jointly entitled to the same relief should be made plaintiffs in the same suit e.g., executors, co-trustees, joint owners of property, joint promises etc. If any one is not willing to join as plaintiff, he should be
impleaded as a defendant [Or. 1 Rule 10 (2)]. [A 1925 L 504]
- Order 1 Rule 1 applies not only to joinder of parties but also to causes of action and Or. 2 Rule 3 is subject to this provision. Hence if a suit conforms to the requirement of Order 1 Rule 1, suit is not bad for misjoinder of parties and causes of action.
[A 1975 Raj 23] :Order 1 Rule 2:
- This is a sort of proviso to Rule 1 giving wide powers to the court to protect the defendant against being prejudiced by the joinder of causes of
action which cannot be conveniently tried together.
- When it appears to the court that a single suit brought by several plaintiffs in respect of the same transaction may embarrass or delay the trial on account of the causes of action being distinct, the court instead of dismissing the suit may put the plaintiffs to their election i.e. ask them to decide which of them should proceed with the suit or order separate trial.
- Under Order 1 rules 2 and 3A and Order 2 Rules 3 and 6 the court may – (1) order separate trials;
(2) confine the action to some of the causes of action and exceed the others; (3) order the plaintiff or plaintiffs to elect which cause of action shall be provided with, or which plaintiff should proceed and which struck out,
(4) prevent a defendant from being embarrassed or put to expense by being required to attend proceedings in which he has no interest;
(5) make such other order as may be expedient. (See Supreme Court practice, 1973 Vol. 1 p. 170). :Order 1 Rule 3:
- Rule 3 which deals with joinder of defendants is exactly in the same terms as rule 1 and is subject to the same conditions as the joinder of plaintiffs viz (1) the relief sought against the several defendants must arise out of the same acts or transactions, and (2) there must arise a common question of law or fact against the defendants, although the causes of action against them may be different in form. Both these conditions must exist together.
- The power to join several defendants in the same suit to the purpose of claiming relief against them severally or in the alternative is not confined to cases in which the causes of action as alleged against the defendants are exactly identical. In order that a party may be added as a defendant in the suit, he should have a legal interest not as distinguished from an equitable interest, but an interest which the law recognises. A person who would be only indirectly or commercially affected by the result of the litigation, cannot be impleaded as a party.
[A 1994 HP 90]
- Order 1 Rule 3 and Order 2 Rule 3, if read together indicate that the question of joinder of parties also involves the joinder of cause of action. [AIR 1999 SC 1341]
- In order to determine whether a suit satisfies the conditions in this rule the facts are:
(1) Could the right to relief against the defendants be said to be in respect of or arising out of the same act or transaction or series of acts or transactions? and
(2) Would any common question of law or fact arise if separate suits were brought against the different defendants?
[51 CWN 295]
- When relief is claimed against several persons severally or in the alternative, the plaintiff has the option to join them all as defendants. But when relief is claimed against several persons jointly, all of them must be
impleaded as defendants, Order 1 Rule 3 should be read with Order 1 Rule 4 (b) and Rule 5.
:Order 1 Rule 3A:
- Rule 3A inserted by CPC (Amendment) Act 104 is intended to empower the court to order separate trials where joinder of defendants may embarrass or delay the trial.
- The rule envisages a direction from the court for separate trials where it appears to the court that the joinder of defendants in the same suit may embarrass or delay the trial or is otherwise inconvenient.
[A 1990 HP 10] :Order 1 Rule 8:
- This rule applies only to representative suits.
- To avoid conflicting decisions and multiplicity of proceedings under this rule when there are numerous persons having the same interest in a suit, one or more of them may, with the permission of the court, sue or be sued or defend in such suit on behalf also of others.
- Order 1 Rule 8 formulates an exception to the general principle that all persons interested in a suit shall be parties thereto.
It is an enabling rule of convenience prescribing the conditions upon which such persons when not made parties to a suit may still be bound by the proceedings therein.
[A 1973 MP 216]
Conditions necessary to bring a suit within this rule are, -(i) numerous parties,
(ii) same interest,
(iii) permission of court, (iv) notice
- On such permission being given it becomes imperative duty of the court to direct notice to be given to the absent parties in such of the ways prescribed as the court in each case may require, while liberty is reserved to any represented person to apply to be made a party to the suit.
[A 1933 PC 183] (iii) :Same interest:
- ‘Same interest’ means a common interest and a grievance. [A 1939 M 751]
- “Same interest” does not mean the same beneficial proprietary right in the subject matter “of suit”. It is distinguishable from “same transaction”.
- It has been made clear beyond all doubts by the insertion of Explanation by 1976 Amendment Act that it is not necessary that the party instituting and the parties represented should have the same cause of action; what is more important is a community of interest.
- “Same interest” implies joint and inseparable interest even if arising from same act or transaction.
[A 1980 J&K 50]
(i) :Numerous persons:
- Under this rule the plaintiff cannot sue on behalf of the public generally, but on behalf of a limited and a clearly defined class with which he has a
common interest and a common right.
- The body of persons represented must be sufficiently definite. [A 1948 PC 66]
- “Numerous” does not mean an ascertained or ascertainable body of persons. The suit may be on behalf of a defined class of the general public though that class may be composed of a more or less in definite
number of person e.g. community or sect. [24 CWN 206]
(iii) :“With the permission of the court”:
- Permission under Order 1 Rule 8 can be granted at any subsequent stage of the suit. When there was averment in the prayer portion of the plaint that the suit was being instituted for the benefit of the public in general, permission was granted during the pendency of the suit.
[2000 AIHC 3410 (Kant)]
- The provision of Order 1 Rule 8 have to be strictly complied with. More so, if it is a case of an unregistered society, no one member case sue alone if he has not filed the suit on his own behalf but on behalf of other members. The proper course is to obtain permission before the suit is instituted, but if it is not done, the rule does not forbid leave being granted afterwards. Permission under this rule may be granted even after the institution of the suit.
(iv) :Notice:
- Issue of notice of suit to all by personal service or by public advertisement is not mere formality but sine qua non under Order 1 Rule 8.
[A 1986 P&H 51]
- The notice must disclose the nature of the suit as well as the reliefs claimed in order to enable the person interested to get themselves impleaded as parties to the suit either to support the cause or to oppose it. The notice must also state as to who are the persons who have been selected to represent the cause.
[A 1987 Cri 270] ::Order 1: Rule 9::
- This rule makes it clear that misjoinder or non joinder of parties is not fatal to a suit provided the suit is of such a nature that the rights and interests of parties before the court can be effectively disposed of.
- The rule is a rule of procedure and has no application where, under the substantive law, the rights and interests of the parties actually before the court cannot be determined and an effective decree cannot be passed, such as in a suit for partition all the co sharers and in partnership account suit all the partners, and in an ejectment suit all the landlords and tenants are necessary parties.
- In such a suit if the plaintiff, in spite of the objection raised, insists on proceeding with the suit without joining all the necessary parties who are
absent, the suit may be dismissed.
- Rule 9 does not apply when a cause of action arises against a number of persons jointly, because when one of such persons is eliminated, no cause
of action subsists against some of them. :Necessary Party & Proper Party:
- This rule does not do away with the necessity to bring a “necessary party” as this has been also emphasized by the proviso to the rule. - There is an essential distinction between “necessary party” and
“proper party” to a suit. Necessary parties are parties whose presence is essential and in whose absence no effective decree can at all be passed.
- Though no suit shall be defeated for misjoinder or non-joinder of parties there can be no doubt that if the parties who are not joined are
not only proper but also necessary parties to the suit the infirmity of the suit is bound to be fatal. Even in such cases the court can under
Order 1 Rule 10 (2) direct necessary parties to be joined but all this can and should be done at the stage of trial and that too without prejudice to the said party’s plea of limitation.
[A 1965 SC 271]
- Necessary parties are parties “who ought to have been joined” within Order 1 Rule 10 (2).
- “Proper parties” are parties whose presence is a matter of convenience to enable the court to adjudicate more effectively completely.
[Vide A 1926 M 927]
- If in a suit a necessary party is not added the suit shall be dismissed not for the reasons of non-joinder or misjoinder of the parties but because no effective order can be passed and no relief can be granted
to the parties on record. [AIR 1994 Gau 110]
- Where no relief is claimed against a person, nor any decree is passed against a person, such a person is not a necessary party to the suit. [2000 AIHC 2477 (Mad)]
:Order 1 Rule 10:
- The object of the rule is to enable the court at any stage of the suit to add a person as a party when it is unable effectually and completely to adjudicate upon and settle all the questions involved in the suit in the absence of that person.
- With that object it can also strike out the unnecessary party.
- The principle of Rule 10 is to save honest and bonafide plaintiffs from being non suited on a technical ground. There are however limitations
on the power:
(i) institution should have been under genuine instance,
(ii) that a valuable right acquired by the defendants should not be defeated.
[A 1955 AP 494]
- Avoidance of multiplicity of proceedings is also one of the objects of Order 1 Rule 10 CPC.
[(1999) 2 SCC 577]
- Only a prima facie satisfaction is required for deciding that the
impleadment of a party was inoperative for the proper adjudication of the suit.
[(2002) 2 CCC 116 (Mad)]
- When impleadment of a third party would mean denovotrial, third party should not be impleaded.
[AIR 1977 SCC 257]
- Court has complete power to correct wrong name or misdescription of parties.
[A 1940 C 153]
- When allowing amendment the court may impose such terms as to costs as it thinks just.
: Sub Rule (2) : [Necessary party]
- Primary meaning of a party is a litigant who has a part to play in the proceedings.
[A 1983 NOC 128 (c)]
- A necessary party is one without whom no order can be effectively made.
A proper party is one whose presence is necessary for a complete and final decision of question involved in the proceedings.
[1996(7) Supreme 210]
- Where impleadment of a person would change the complexion of the litigation his/her presence is neither necessary for the decision of the question involved in the proceeding nor to enable the court effectively and completely to adjudicate upon and settle the question involved in the case, such a person is neither a necessary party nor a proper party. [(2002) 3 SCC 98]
- The object of Rule 10 (2) is not to prevent multiplicity of actions though it may incidentally have that effect. But that is a desirable consequence of the rule rather than its main objective. The only
reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the
question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.
[1992 (2) SCR 1]
- The words “ought to have been joined” in sub rule (2) apparently have reference to necessary parties in the sense that the suit cannot be
effectively disposed of without their presence on record. [A 1958 SC 886]
- The general rule is that suit cannot be dismissed on the ground of joinder of proper parties, but this rule does apply in case of
non-joinder of necessary parties. Where despite objection the plaintiff declines to add necessary party, the plaintiff cannot be allowed to
rectify the error by applying for amendment in the appellate court. [2002 AIHC 360 (HP)]
- The power under the sub-rule may be exercised at any stage of the proceeding subject to the law of limitation. The discretion given is
wide, the object being to avoid multiplicity of suit and conflict of decisions.
[A 1965 MP 275]
- Order 1 Rule 10 (2) empowers the court to implead any person as a party suo motu since if the plaintiff is permitted as a rule to choose his opponents, he may leave out the real owner or interested person, implead a person of his own choice and get a collusive decree which would have become final when real owner comes to know about it which will create
ugly situations. [A 1989 All 168]
- Judicial Officers who have disposed of cases should not be arrayed as party in the cases.
[AIR 1998 SC 976]
- If a suit is not maintainable against one of the defendants it should be dismissed against him without rejecting the whole plaint. If, however, a suit becomes defective for non joinder of a defendant the suit has to be dismissed against other defendants also.
[6 SCWN 1128]
- A person may be added as a party-defendant to the suit though no relief may be claimed against him/her provided his/her presence is necessary for a complete and final decision on the question involved in the suit. Such a person is only a proper party as distinguished from a necessary party.
[(1995) 1 Andh WR 8 (SC)]
- When the court feels embarrassed by the presence of parties against whom it has no power to entertain suit or by pleadings relating to property over which it has no jurisdiction, it can strike out the defendants
under Sub Rule (2) and the pleadings under Order 6 Rule 16. [A 1951 P 364]
:Test to determine necessary party:
- For determining the question who is a necessary party there are two tests:
(i) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question, and
(ii) it should not be possible to pass an effective decree in the absence of such party.
The eventual interest of a party is the fruits of litigation cannot be held to be the true test of impleading a party.
[A 1947 A 18 FB]
:At any stage of the proceeding:
- The court has power under Rule 10 (2) to add not only those persons who were necessary parties on the date of the suit but also persons who subsequently i.e. upto the date of final adjudication become necessary parties and whom the plaintiff omits to implead.
[A 1974 A 422]
- But a transferee from the defendant pendente lite is neither a necessary party.
[A 1989 Orissa 148]
:Sub Rule (5): Limitation:
- Under Section 21 Limitation Act, an addition or substitution of a plaintiff or defendant the suit as regards him shall be deemed to have been instituted when he was so made a party.
[A 1986 Orissa 62]
- It would not be proper or legal to implead a person as a defendant in a suit against whom the claim has already become barred by limitation. [AIR 1995 All 19]
- The addition of a “necessary party” after period of limitation will entail the dismissal of the whole suit.
[A 1929 C 591] :Order 1 Rule 13:
- Where objection as to non-joinder was not taken in the written statement, it must be held that the plea of non-joinder shall be deemed to have been waived.
[2000 AIHC 3827]
- It is the duty of the party to raise the objection in the written statement at the earliest point of time about the maintainability of the suit on the ground of not bringing on record the necessary or proper party in determining the issues involved in the matter.
