PREFACE LL.B. Study Notes
301 Civil Procedure Code and Limitation Act
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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
301 Civil Procedure Code and Limitation Act
Topic Page
Module-1 Introduction, Basic Principles and Jurisdiction of the Courts. 3 Module-2 Trial Procedure, Judgment, Suits in particular cases. 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
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
Suit1.4.2) 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
enforcement1.4.4) Provisions relating to ADR : Settlement of the Disputes outside the
courts (Sec.89) – object, purpose, background and procedure1.4.5) 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 ? (Nov-2012, 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 , (i i ) Suit, Plaint , (iii) Written Statement , (i v ) 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 .
➔Write short notes : Distinguish between ‘Order’ and ‘Decree’ . (Oct-2013)
➔Explain : (i) Doctrine of R estitution , (ii) Decree-holder , (i ii ) Judgment-debter , ( i v)
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 ? (Nov-2012, 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)
Explain : "Suit of civil nature". Can a court try a suit without jurisdiction ? (Nov-2012, 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
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
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
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.
✔ 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.
➔ 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 : <O-6>
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 :
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,
• 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.
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 : <O-7>
https://www.enotes.com/homework-help/what-difference-between-plaint-suit-87887
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,
● 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 : <O-8 R-1-5 & 7-10>
http://himanshuaroras.blogspot.in/2013/02/written-statement-order-viii-of-cpc-of.html
https://blog.ipleaders.in/civil-procedure-code-quick-peak/
<“Set-off and Counter Claim” in Module-2 are closely related topics with “Written Statement”>
<Short note on Written Statement>
● 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.
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.
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,
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 rule (1) or under
sub-rule (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.
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 :
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 :
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➔ Explain : (i) Judgment, (ii) Decree, (iii) Order. ANSWER :
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,
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,
• 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.
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.
● 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.
➔ Distinguish between decree and judgment. ANSWER :
✔ Refer :
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➔ 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.
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➔ 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 :
● 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 :
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.
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 1st 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.
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➔ Discuss in detail : Kinds and Jurisdiction of Courts, Hierarchy of Courts.
✔ Explain : "Suit of civil nature". Can a court try a suit without jurisdiction ? (Nov-2012, 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-and-place-of-suing-1780-1.html http://www.ncib.in/pdf/judiciary-of-india.pdf https://www.linkedin.com/pulse/hierarchy-courts-india-flow-diagram-ramanathan-sivakumar 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,
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
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 :
● <read from “place of suit” elsewhere in this doc> 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 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.
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
efficiency of the courts and to avoid any delay. Res Sub-judice : Stay of suit :
● <discussed elsewhere in this doc> Res Judicata :
● <discussed elsewhere in this doc> ✔ 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” :
