CIVIL PROCEDURE CODE AND LIMITATIONS ACT notes/law book s...Discuss the nature, object and scheme of...

Marupaka VenkateshwarluM.A,B.Ed,L.L.B

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CIVIL PROCEDURE CODE AND LIMITATIONS ACT

Marupaka venkateshwarlu M.A,B.Ed,L.L.B. Page 1

Discuss the nature, object and scheme of the Code of CivilProcedure.

The Present Code of Civil Procedure was enacted in the year 1908. Priorto that there was no uniform Code of Civil Procedure till 1859. The first uniformCode was enacted in the year 1859. That Code was applied to the whole ofBritish India except to the Supreme Court in the Presidency towns and to thePresidency small Causes Courts.

Subsequently, a new Code was enacted in the year 1877. In the y ear1882, another Code was also enacted. The code of Civil Procedure, 1908 cameinto force with effect from January 1st, 1909.

Object : The main object of the Code is to consolidate and amend the lawsrelating to the procedure of the Courts of Civil Judicature.

Nature and Scheme of the Code : The system of law may be classified into twokinds. (1) Substantive Law and; (2) Adjective or Procedural Law. Substantive Lawdetermines rights, duties and liabilities of the parties. The Indian Contract Act,The Transfer of Property Act are examples of Substantive Law. The Adjective orProcedural Law prescribes those rights and liabilities. The Indian Evidence Act,Code Civil Procedure are examples of it.

The Code of Civil Procedure has been divided into two parts. The first partcontains 158 Sections and the second part (The first Schedule of the Code)contains 51 Orders and Rules there under. The first part of the Code lays downthe general principle of jurisdiction of a substantive nature. The second part (TheFirst Schedule) relates to the procedure and the method, manner and mode inwhich the jurisdiction of courts may be exercised.

The legislature is only the authority to amend any portion of the first part ofthe Code. Whereas the second part (First Schedule) of the Code can beamended by the High Courts.

Though, there were some defects in the Code of Civil Procedure 1908, onthe whole this Code worked satisfactorily for certain period.------------------------------------------------------------------------------------------------------------

Cause of Action

The expression ‘Cause of Action’ has not been defined in the Code. It may bedescribed as ‘a cause which gives occasion for and forms the foundation of theaction by instituting a suit’. In view suit, cause of action against the defendantmust be in existence.


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Res of Sub Judice / Res Sub Judice (41 page)

Meaning : Where two cases are filed between the same parties on same subject-matter in two different courts, the competent Court has the power to stay theproceedings of another Court. This is called “res sub judice”.

Scope : Section 10 of the Civil Procedure Code, 1908 deals with the case of “ressub judice”.

Object : The object of the Section 10 is to prevent Court of concurrent jurisdictionfrom simultaneously trying two parallel suits in respect of the same matter inissue. The aim and object of Section 10 is to minimize litigation and to see thatCourts of co-equivalent jurisdiction avoid conflicting decisions so that precioustime of the Courts is not wasted in trying the same cause of action between thesame parties to enjoy the fruits of the decree passed in his favour.

Examples : A resides in Hyderabad. He employs B as his agent sell goods atVijayawada. A dispute arises between A and B files a suit against A in the Court ofVijayawada claiming certain amounts towards the damages and breach of contractfrom A. A files a suit in Hyderabad against B in respect of the same matter in issue.As per the invoices, the phrase “subject to Hyderabad jurisdiction”, Hyderabad Courtis the competent Court can only inquire into the matter and grant the relief claied byA or dismiss his claim if B succeeds to prove in his favour. In the same case, B canclaim his relief. The Vijayawada Court has no jurisdiction, and it shall not proceedand its proceedings are stayed. The cause of action arose at Hyderabad.

Conditions :1. The matter in issue must be substantially the same.

2. Bot the suits must be between the same parties or their representatives.

3. Such parties must be litigation in both the suits under the same title.

4. “The Court” means Indian Courts only. It does not include foreign Courts.Therefore, the pendency of a suit in a foreign court does not preclude theCourts in India from trying a suit founded on the same cause of action.

5. Inherent power to Stay : The Civil Court has inherent power under Section151 of the Civil Procedure Code, 1908. Even though in the cases whereSection 10 does not apply, the Court has inherent powers anddiscretionary powers to stay the proceedings.


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6. Special Law : If a suit is pending in a court and subsequently anapplication is filed under some special law before the Tahsildar regardingthe same subject-matter, the application is not barred since the Tahsildaris not a ‘Court’.

7. Conditional Stay : The court cannot impose conditions when staying a suit.------------------------------------------------------------------------------------------------------------

Res Jidicata (43 page)

Meaning : When a matter – whether on a question of fact or a question of law – hasbeen decided between two parties in one suit or proceeding by the competent Court,and the decision is final, either because no appeal was taken to a higher Court orbecause the appeal was dismissed, or no appeal lies, neither party will be allowed ina future suit or proceeding between the same parties to canvass the matter again.

Scope : Section 11 of the Code of Civil Procedure, 108 explain about the “resjudicata”

Example : A sued B for the partition of some ancestral property. The suit wasdismissed. A did not file an appeal before the Appellate Court. Now A wants to fileanother suit against B on the same property. A is precluded to file another suit onthe same property against the same person.

CONDITIONS FOR RES JUDICATA

1. The matter must be directly and substantially is issued in two suits.

2. The prior suit should be between the same parties or persons claimingunder them.

3. Parties should have litigated under the same title.

4. The Court which determined the earlier must be competent to try the latersuit.

5. The question directly and substantially in issue in the later suit.

IMPORTANT POINTS ON ‘RES JUDICATA’

1. Principle of res judicata are aso applicable to writ proceeding.

2. Section-11 is not strictly applicable to consent or compromise decrees as itapplied in terms only to what has been heard and finally decided by Court.A compromise decree entered into by a limited owner her personalcapacity will not bind the reversioner.


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3. The aim and object of the law is to minimize litigation, to see that Courts ofco-equivaletn jurisdiction avoid conflicting decisions, that precious time ofthe Court is not wasted in trying the same cause of action between thesame parties again and again and finally to enable the successful party toenjoy the fruits of the decree passed in his favour.

Distinction between ‘RES SUBJUDICE’ and ‘RES JUDICATA’

RES SUBJUDICE RES JUDICATA1 Res Subjudice relates to a 1 Res judicata relates to a matter

matter pending judicial enquiry already adjudicated upon remor trial sub judice. judicatum

2 Section10dealswithres 2 Section 11 deals with resjudicatasubjudice

3 Res subjudice bars the trial of a 3 Res judicata bars the trial of a suitsuit in which the matter directly or an issue in which the matterand substantially in issue is directly and substantially in issuependingadjudication ina has already been adjudicated uponpreviously instituted suit. in a previous suit.

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AFFIDAVIT (92 page)

Meaning : An affidavit is a declaration as to facts in writing sworn before a personhaving authority to administer an oath. Ordinarily interlocutory applications suchas an application for attachment before judgment, interim, injunction,appointment of receiver, etc. can be decided on affidavits.

Scope : Order-19 deals with affidavits. Order 19 contains 3 Rules. Order-19 hasto be read alongwith Section 30 and 139.

ESSENTIALS :1. An affidavit must be in writing.

2. It must be in the first person.

3. It must be a declaration made by the deponent

4. It must have been sworn or affirmed before an authorized officer

5. Particular fact or facts may be proved by affidavit

6. There must be verification at the end of an affidavit

7. Affidavit must disclose nature and source of knowledge


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8. Oath on affidavit by whom to be administered: Section 139 provides thatthe affidavit must be made before:-

(a) any Court or Magistrate; or(b) any Notary;(c) any officer or other person appointed by High Court;(d) any officer appointed by any other Court having competency to do so

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RECEIVER (150 page)

Definition : The word ‘Receiver’ has not been defined in the Code of CivilProcedure, 1908.

Kerr : The famous jurist, defines Receiver: “Receiver is an impartial personappointed by the Court to collect and receive, pending the proceedings, therents, issues and profits of land, or personal estate, which it does not seemreasonable to the Court that either party should collect or receive or for enablingthe same to the distributed among the persons entitled.”

Object : The object of the appointment of a receiver is the protection orpreservation of property for the benefit of persons who have an interest in it untilthe proceeding is decided by the Court.------------------------------------------------------------------------------------------------------------

APPOINTMENT OF RECEIVER(151 page)

Important points :

A. Rule-1 provides that the Court may appoint or remove a receive. The Courtmust feel it necessary, just and convenient for the appointment of a receiver.

B. There are five important principles adopted by the Court, for theappointment of a receiver. They are :

1. The Court should not appoint a Receiver except upon proof by the plaintiffthat prima facie he has an excellent chance of success in the suit.

2. The party who seeks the appointment of a receiver, must come before theCourt with clean hands.

3. The Court must see and protect the rights of all parties and the subject-matter.

4. The plaintiff must show the proof or convince to the Court that if theReceiver is not appointed, there is every likelihood of the danger to theproperty in the suit.

5. The Order will not be made if it has the effect of depriving defendant of ade facto possession.

C. The has power to appoint Receiver for immovable property situatedoutside its ordinary jurisdiction.


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D. A receiver can be appointed pending the decision of an application forleave to sue as a pauper.

E. The burden of proof lies upon the applicant to show that it is just andconvenient that a receiver should.

F. The Court has got power to appoint a receiver in a declaratory suit andappellate Court should not interfere with the discretion exercised by thelower Court.

G. Selection of Receiver : Receiver should be an impartial person. He must bewholly disinterested in the subject-matter of the suit.Ordinarily party to alitigation should not be appointed as a receiver, there must be consent of theother party.

------------------------------------------------------------------------------------------------------------PLEADINGS GENERALLY (78 page)

Scope : Order 6 explains about the “Pleadings Generally”. Order-6 contains 18Rules. Order–7 deals with “Plant”. Order-7 contains 18 Rules. Order-8 deals withwritten statement, set-off and counter-claim.

Meaning : Pleadings = A formal statement of the cause of an action or defence.

Definition : Rule 1 of Order-6 defines ‘Pleadings’ : “Pleadings shall mean plaint orwritten statement”.

Object : The object of pleading is to give fair notice to each party of what theopponent’s case is and to ascertain, with precision, the points on which theparties agree and those on which they differ and thus to bring the parties to adefinite issue. Pleadings save the time and expenses of the Courts and parties.Pleadings face the direct points. The main object of pleadings is to find out andnarrow down the controversy between the parties.------------------------------------------------------------------------------------------------------------

Amendment of pleadings (81 page)

Leave to amend when given :

1. Rule-17 provdes “Amendment of pleadings” : The rule deals withamendments which a party desires to be made in his opponent’spleadings or where the pleading contains irrelevant and scandalous matteror where it is prejudiced, embarrassing or delayed the fair trail of the suit.


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2. The general rule is that leave to amend will be granted so as to enable thereal questions in controversy between the parties to be raised on thepleadings, where the amendment will occasion no injury to the oppositeparty except such as can be sufficiently compensated for by costs.

3. An amendment should ordinarily be allowed if it can be made withoutinjustice to the other side. There is no injustice if the other side can becompensated by costs.

4. It is immaterial whether the error sought to be amended was accidental.

5. The Court can allow the plaintiff to amend the plaint by permitting him tosubstitute one ground of exception from limitation for another.

6. The party applying for amendment must not act with mala fide intention.The applicaton must be made in good faith and bona fide.

7. Competed Court : When the suit that was originally filed could be tried bythe District Munsiff, it is only the District Munsiff who is competent todecide whether the amendment applied for should be allowed or refusedon the merits.

8. Withdrawal of admission : An amendment of the pleadings withdrawing anadmission made in the original pleadings can be granted by the trial Courtfor the effective adjudication of the despute.

Leave to amend when refused :

In the following circumstances, the leave amend shall be refused :-

1. Where the amendment is not necessary for the purpose of determining thereal questions in controversy between the parties, as to where it is (i)merely technical, or (ii) useless and of no substance.

2. Where the plaintiff a suit would be wholly displaced by the proposedamendment.

3. Where the effect of the amendment would take away from the defendant alegal right which has accrued to him by lapse of time.


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4. Where the amendment would introduce a totally different, new aninconsistent case, and the application is made at a later stage of theproceedings.

5. Where the application for amendment is not made in good faith.

6. Rule-18 provides that a party who has obtained an order to leave to amend,does not amend accordingly within the time given by the order, he shall notbe permitted to amend after the expiration of such prescribed time. If there isno prescribed time limit, the party should amend hi pleadings within 14 days.

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Mesne profits (40 page)

Meaning : Intermediate profits, Profits received from an estate by a tenandbetween two dates.

Pronunciation : The word ‘mesne’ should be pronounced as ‘mean’

Every person ha a right to possess his property and when he is eprived of suchright by another person, he is not only entitled to receive possession of theproperty, but also damages for wrongful possession from that person. Here themesne profits are not what the plaintiff has lost by being out of possession, butwhat the defendant gained or might reasonably and with ordinary prudence havegained by such wrongful possession.

Object : The object of awarding a decree for mesne profits is to compensate theperson who has been kept out of possession and deprived of enjoyment of hisproperty even though he was entitled to possession and enjoyment of the property.

Important points on ‘mesne profits’ :

A. Wrongful possession is the basis of a claim for mesne profits.

B. ‘Mesne Profits’ will be accrued from immovable property only.

C. A decree for mesne profits can be passed against a trespasser, or against amortgagor in possession of the mortgaged property after a decree forforeclosure has been passed against him or against a tenant holding overtenancy-at-will after a notice to quit has been served upon him.

D. Court may allow mesne profits in excess of the claim.

E. Interest may also mesne profits. The proper rate of interest is 6% per annum.


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F. The Court has discretionary power to assess the mesne profits and interestthereon.

G. Burden of Proof : The burden of proof lies on the plaintiff or defendantdepending upon the circumstances of the case. If it is a claim for actualprofits the defendant should prove the actual receipt. If it is for estimatedprofits, the plaintiff should prove the probable receipt.

H. In a suit for possession and mesne profits, the Court can grant future mesneprofits even if it is not specifically prayed for.

------------------------------------------------------------------------------------------------------------Appeal / Powers of an Appellate Court / Appeal to High

Court from any decree or order

Meaning : Before the trial Court, the plaintiff files a suit against the defendant for acause of action. The trial Court enquires into the matter and comes to a conclusionand passes a decree either in favour of the plaintiff or in favour of the Defendantdepending upon the evidences produced before it. If the suit is decreed in favour ofPlaintiff, the Defendant can appeal to higher court against the Decree in other wordsthe appeal is a complaint made to higher Court by the aggrieved party.

The term “Appeal” has not been defined in C.P.C. Whoever files anappeals is called “Appellant”. If the defendant files an appeal, he is known as“Appellant / Defendant”. The other party i.e. the plaintiff in the original suit has toanswer, and is called “Respondent / Plaintiff”. If the Plaintiff files the appealbefore the Higher Court, he is known as “Appellant / Plaintiff”. The other party,who has to answer is called “Respondent”, viz. “Respondent / Defendant”.


A.B. (54

pag

Object : A right of appeal is not a natural or inherent right. An appeal is a creation ofstatue. The right of appeal is a substantive right and not merely a matter ofprocedure. A right to sue is an inherent right. The right of appeal accrues from theauthority of raw. That is why the right of appeal is described as a ‘creation of statute’.The right of appeal is thus restricted, because the decree is given by a Judge who iscompetent to give it. Sometimes, the trial Court may do some errors due to commonhuman errors or due to some technical errors make. Therefore, the framers of theCode allowed a right of appeal subject to certain conditions.

A right of appeal is based on the principles of natural justice. A personcannot be penalized by the mistake of the Courts. An appeal is based on the suitor proceeding. In fact “an appeal is a continuation of suit”.

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Legal Disability under Indian Limitation Act, 1963. (165 page)

Meaning :Disability : want of powerInability : weakness; lack of power

Legal Disability : Disability is the want to capacity of the legal qualification to actas such as have been mentioned is Section 6 of the Limitation Act, 1963, viz.,minority, insanity or idiocy. Legal Disability is a genuine cause, which extends theperiod of limitation.

Inability = ‘Inability’ means want of physical power or facility to act. Inabilityassumes that the plaintiff is full capable to sue. The person has no personalinability to sue, but there are some circumstances due to which he is unable tosue in time. Poverty, parda nashin, etc. are examples of such circumstances. Thelaw does not extend the time to file a suit for a person who is unable to file a suitwithin the period of limitation.

Scope : Section 6, 7, 8 and 9 of the Limitaiton Act, 1963 lay down the provisionsextending the period of limitation to the persons suffering with disability, i.e.minority, insanity or idiocy.

Object : The principle of limitation law is that limitation begins to run from the date ofaccrual of the cause of action. Sections 6, 7, and 8 are exceptions to this principle. Inthese cases, the period of limitation does not run from the date of accrual of thecause of action, but from the date on which the disabilities cease. The object ofSections 6, 7 and 8 is to protect the minor, insane or an idiot who are suffering fromlegal disabilities and not to place them in loss and inconvenience.

In the eye of the law, they are incapable of understanding the rights andliabilities. Hence the framers of the Limitation Act give the provisions of Sections6, 7 and 8 extending the period of limitation to the persons suffering withdisability, i.e. minority, insanity or idiocy.------------------------------------------------------------------------------------------------------------

Injunctions (147 page)

Meaning :Injunction = a command, a behest, a restraining writ

An injunction is a judicial process whereby a party is required to do or to refrainfrom doing, any particular act. It is in the nature of a preventive relief granted to alitigant quia timet that is because he fears future possible injury.


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Objects : Its main object is to preserve the subject-matter of the suit instatus quo for the time being, and to prevent any change in it until the finaldetermination of the suit.

Classification : Injunctions are classified into two types – (1) Temporary and(2) Permanent.

TEMPORARY INJUNCTION PERMANENT INJUNCTION(INTERIM INJUNCTION) (PERPETUAL INJUNCTION)

1 A temporary injection is to 1 A permanent injunction can only becontinue until a specified time, or granted by a decree made at theuntil the further order of the Court. hearing and upon the merits of theIt is granted at any period of suit. suit.

2 Temporary injuction is regulated 2 Permanent injunction is regulatedby Rules 1 to 5 of Order 39 of C.P.C. by the Specific Relief Act, 1963 in

Sections 38 to 42.3 It is provisional in its nature. It 3. Permanent Injunction finally

cannot conclude the right. determines the rights of the partiesand forms part of the decree madeat the hearing.

4 It can be granted at any stage of 4 It can only be granted at final stagethe suit. / hearing of the suit.

5 It may be granted to the plaintiff 5 A perpetual injunction is grantedon his making out a prima facie upon the merits of the suit.case in his support.

6 A temporary injunction can be 6 A permanent injunction can only begranted at the discretion of the granted upon the merits of the caseCourt, and upon certain and at final hearing of the suit.circumstances of the case.

7 A temporary injunction is a mere 7 A perpetual injunction is a decree.order.

8 The Court which issues it, can 8 The court which issues awithdraw it, at any stage, until a permanent injunction cannotfinal order or decree is ordered. withdraw it, after its declaration.

9 A temporary injunction is 9 A perpetual injunction istemporary nature as its name permanent in nature, final decreeitself implies. as its name itself implies

(perpetual = permanent)10 Generally a temporary injunction 10 In granting a perpetual injunction

is a granted after hearing from the the Court must hear both theplaintiff side only. Defendant is not parties of the suit.heard. Sometimes the defendant isalso heard.

11 Acquiescence, delay or laches on 11 The plaintiff may give sufficientthe part of the plaintiff can not reasons fro delay, laches,entitle him to obtain the acquiescence on certaintemporary injunction. circumstances, if it satisfies.


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Interlocutory orders (149 page)

Meaning : Generally the expression ‘Interlocutory Order’ has been understoodand taken to mean as a converse of the term ‘Final Order’.

The term ‘Interlocutory’ means according to the important of the dictionary‘intermediate’ and the ‘interlocutory order’ is one passed during the progress ofthe proceedings, that is to say interlocutory order must be an order passed afterthe initiation of the proceedings and before the final order disposing of the matter.

Stroud’s Judicial Dictionary : “Interlocutory order was not confined to an order madebetween writ and final judgment, but means an order other than final judgment.”

Scope : Rules from 6 to 10 of Order-39 of the C.P.C. deal with the InterlocutoryOrders.

Procedure : The work ‘interlocutory’ as applied to ruling and orders by the trialCourt, has been variously defined. It refers to all orders, rulings, and decisionsmade by the trial Court from the inception of an action to its final determination. Itmeans, not that which decides the causes, but that which only settles someintervening matters relating to the cause.

An interlocutory order is an order entered pending a cause, deciding somepoint or matter essential to the progress of the suit and collateral to the issuesformed by the pleadings and to a final decision of judgment on the matter in issue.------------------------------------------------------------------------------------------------------------

Second Appeal (56 page)

Meaning : The ‘Second Appeal’ means an appeal to High Court from the decisionin a civil suit or proceedings of a First appellate Court subordinate to the HighCourt. ‘Second Appeal’ means an ‘appeal from an Appellate Court’.

Scope : Sections 100 to 103 and Order 42 deal with Second Appeals.

Object : “Interest republicae, ut sit finish litium” (In the interest of the State, thelitigation must come to an end) But at the same time, the person should not beaggrieved by the mistake of the law. A balance must be achieved in betweenthese two concepts. The S

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Framing of issues (91page)

Meaning : The dictionary meaning of the word ‘issue’ is the act of sendig out, putinto circulation, deliver with authority of delivery.

Rule-1 of Order-14 provides that issues arise when a material proposition of factor law is affirmed by one party and denied by the other. Issues are of two kinds(a) Issues of fact; and (b) Issues of law.

Court can pronounce judgment on all issues : Rule-2 provides that Court shallpronounce judgment on all issues, whether they are issues of law or issues offact or mixed.

Materials from which issues may be framed : Rule-3 provides that Court mayframe the issues from all of any of the following material :

a. allegations made on oath by the parties, or by any person on theirbehalf, or made by the pleaders of them;

b. allegation made in the pleadings or in answers to interrogatoriesdelivered in the suit;

c. the contents of documents produced by either party.

Rule-4 provides that the Court may examine witnesses or documents beforeframing issues.

Power to amend, strike out issues : Rule-5 provides that the Court has the powerto amend and strike out the issues, before passing a decree, if it thinks fit, undercertain circumstances.------------------------------------------------------------------------------------------------------------Arrest and detention in the civil prison (101 page)

Sec. 55. Arrest and detention :

A judgment-debtor may be arrested in execution of a decree at any hour and onany day, and shall, as soon as practicable, be brought before the Court, and hisdetention may be in the civil prison of the district in which the Court ordering thedetention is situate, or, where such civil prison does not afford suitableaccommodation, in any other place which the State Government may appoint forthe detention of persons ordered by the Courts of such district to be detained.

Provided, firstly, that for the purpose of making an arrest under this Section, nodwelling-house shall be entered after sunset and before sunrise.


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Provided, secondly, that, no outer door of a dwelling-house shall be broken openunless such dwelling-house is in the occupancy of the judgment-debtor and herefuses or in any way prevents access thereto, but when the officer authorized tomake the arrest has duly gained access to any dwelling-house, he may breakopen the door of any room in which he has reason to believe the judgment-debtor is to be found:

Prohibition of arrest or detention of women in execution of decree for money :

Notwithstanding anything in this Part, the Court shall not order the arrest ordetention in the civil prison of a women in execution of a decree for the paymentof money.

Sec. 59. Release on ground of illness :

At any time after a warrant for the arrest of a judgment-debtor has been issuedthe Court may cancel it on the ground of his serious illness.------------------------------------------------------------------------------------------------------------

Acknowledgement (173 page)

Meaning : Admission, confession, owning with thanks a benefit received.

Section 18 of the Limitation Act, 1963 gives the meaning that anacknowledgement is a conscious admission of the existing liability in respect ofthe property or right claimed in the suit.

Definition : Fry, L.J. defines ‘Acknowledgement’ as follows : “An acknowledgement isan admission by the writer that there is a debt owing by him, either to the receiver ofthe letter or to some other person on whose behalf the letter is received but it is notenough that he refers to a debt as being due from somebody.

Scope : Section 18 explains about the acknowledgement and its essentialconditions. Section 19 explains about the part payment towards theacknowledgement. Section 20 provides that effect of acknowledgement ofpayment by another person.

Essential conditions of a valid acknowledgement :1. The acknowledgement must be in writing. Section 18 starts with the words

“Effect of acknowledgement in writing’. Oral acknowledgement is not anacknowledgement in the eye of the law and is not valid.

2. Acknowledgement must be made before the expiration of the prescribedperiod for a suit or application.

3. Acknowledgement must be signed by the person making theacknowledgement or by his agent duly authorized on his behalf for thespecific purpose of acknowledgement.


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4. Acknowledgement must be made in respect of the particular property orright claimed in the suit or application.

5. Acknowledgement must be made by the party against whom any property orright is claimed or by some person through whom, he derives title or liability.

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Cause of action (68 page)

Definition : The terms “Cause of action” has not been defined in C.P.C.

Lord Brett, famous jurist, defines ‘cause of action’ : “Cause of action means everyfact which it would be necessary for the plaintiff to prove, it traversed, in order tosupport his right to the judgment of the Court”.

Meaning : Every suit is based on the cause of action, which is a bundle of essentialfacts, which it is necessary for the plaintiff to prove before he can succeed. It is thefoundation of the suit. The limitation of the suit is also depended upon the first causeof action. The cause of action means every fact which will be necessary for theplaintiff to prove it traversed in order to support his right for the judgment.

Example: A purchased a house for Rs.10,000 from B on 10-05-2000 and got itregistered in his favour on the same day. Later C objects that the said propertybelongs to him. The cause of action arose on 10-05-20000.

Scope : Rules 3 to 78 of Order 2 explain about the effect of joinder of causes ofaction, misjoinder of causes of action, etc.------------------------------------------------------------------------------------------------------------

Set-off (86 & 87 pages)

Meaning : a counter-balance: a quid pro quo (a Latin substantival phrase); a reciprocal acquittal of debts.

Classification : Set-off is of two kinds – (1) Legal Set-off (2) Equitable Set-off.

What is legal Set-off?

In Rule 6 of Order-8, the legal set-off is explained. There are 8 illustrations annexedto Rule-6 which give a clear and easy understanding about the legal set-off. Set-offis a reciprocal acquittal of debts. In an action to recover money, set-off is a cross-claim for money by the defendant, for which he might maintain an action against theplaintiff, and which has the effect of extinguishing the plaintiff’s claim protanto.

IMPORTANT POINTS ON SET-OFF :

A. Both the character of plaintiff and defendant should not be altered in theclaim of set-off.


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B. The suit must be for the recovery of money. The suit for the recovery ofany other property shall not be liable to set-off.

C. The right of set-off exists not only in cases of ‘mutual debits and credits’but also of cross demands arising out of the same transaction.

D. A plea of set-off cannot be raised without filing a written statement.E. Legal set-off can be claimed as of right and the Court is bound to enterain

and adjudicate upon it.F. The amount claimed to be set off must be ‘legally recoverable’.

------------------------------------------------------------------------------------------------------------Equitable set-off (87 & 88 pages)

Meaning : Equitable set-off means a set-off for an unascertained sum of money arising out of cross-demands arising out of the ‘same transaction’.

Scope : The equitable set-off is allowed by Court of Equity in England. Rule-19 (3) ofOrder-20 of the Code of Civil Procedure in India recognizes an equitable set-off.

Important points on equitable set-off :

A. An equitable set-off can be pleaded in respect of unascertained sum.B. An equitable set-off may be claimed by the defendant for a claim arising

out of the same transaction as the plaintiff’s claim.C. Rule-6 is not a bar to equitable set-off.D. Where set-off is claimed on the basis of an agreement, no set-off can be

claimed outside the terms of the agreement, which the Court finds it tobe proved.

E. An equitable set-off which is barred by limitation can not be allowed.F. Equitable set-off be claimed as of right. The Court has discretion to refuse

to adjudicate upon it.------------------------------------------------------------------------------------------------------------

Counter-claim (88 & 89 pages)

Meaning : When the defentdant is an action has the claim against the plaintiff whichhe might have asserted by bringing a separate suit, he may raise it in the existingsuit as a counter-claim in his written statement, giving the facts on which it is based.

Scope : The object of counter-claim is to reduce the pendency of cases and thecauses of action and cross-claims of similar nature could be clubbed togetherand disposed of by a common judgment. It reduces the expenditure, time andconvenience of the parties and Courts.

Important points :

A. The counter-claim is confined only a money claim.B. Counter-claim cannot be filed by amending written statement.


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C. No cause of action can arise after filing of written statement or after the expiry of date for filing.

D. The Supreme Court held that the right to make a counter-claim is statutory. E. The counter-claim of the defendant will be treated as a plaint and the plaintiff

has a right to file a written statement in answer to the counter-claim of the defendant.

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Set-off Counter-claim1. Set-off is explained in Rule-6 of 1. Counter-claim is explained in RulesOrder-8 of C.P.C. from 6-A to 6-G of Order-8.2. Set-off is an old provision and is 2. Counter-claim is a new provision andexisting since the enactment of C.P.C. the Rules 6-A to 6-G have been inserted

in the Civil Procedure Code, 1908 byC.P.C. Amendment Act, 1976.

3. Set-off is of two kinds – (i) Legal Set- 3. Counter-claim has no suchoff and (ii) Equitable Set-off. classification.4. Set-off is a statutory defence of the 4. Counter-claim is substantially adefendant to a plaintiff’s action. cross-action.5. Set-off must be for an ascertained 5. A Counter-claim can be made for ansum. ascertained sum, or even for an

unascertained sum.6. Set-off must arise out of the same 6. In need not arise out of the sametransaction. transaction.7. In a set-off, the defendant demands in 7. In a counter-claim, the defendanta plaintiff’s suit an amount below or demands for a large amount. The claimupto the suit claim. for excess amount is really a counter-

claim.8. The amount must be recoverable at 8. The amount must be recoverable atthe date of the suit. the date of the written statement.9. Set-off is a ground of defence to the 9. Counter-claim is a weapon of offence,plaintiff’s action, just like a shield. just like a sword which enables the

defendant to enforce the claim againstthe plaintiff effectually as anindependent action.

10. Set-off is a right to adjust the claim 10. A counter-claim is a claim made byof the plaintiff against certain right or the defendant in excess of the rightdues of the person entitled to Set-off. claimed by the plaintiff.

PROBLEM: A sues B for compensation on account of trespass. B holds apromissory note for Rs.1,000 from A. B claims to set-off that amount against anysum that A may recover in the suit. Is B entitled to claim set-off? Give reasons?


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SOLUTION : The problem is identical with illustration (e) appended to Rule-6 ofOrder-8. Refer the illustration given above. Here in the given problem, B isentitled to claim set-off, as both sums are definite pecuniary demands.

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Inter-Pleader suit (145 page)

Meaning : Generally in a suit, there shall be dispute between the plaintiff anddefendant. But in an inter-pleader suit the real dispute is between the defendantsonly. The defendants inter-plead i.e. plead against each other, instead of pleadingagainst the plaintiff as in an ordinary suit.

Example : A took the loan of RS.10,000 from two persons B & C. Now A is readyto pay back the loan amount to B and C. The amount is ready with A. Butbetween B and C, a dispute aorse to take the share of the principal and interestaccrued thereon. There was personal dispute between B and C regarding theshare of interest. They interplead against each other. As soon as they settle theirdispute between them, or it is settled by the Court. A should pay the amount i.e.principal + interest. Hence the real dispute is between the defendants B and C.But not between the plaintiff and defendants. This is called ‘Inter-pleader Suit’.The primary condition for an inter-pleader suit is that there must be more thantwo defendants in that suit.

Scope : Section 88 explains the provisions about the ‘Inter-pleader suit’. Order 35lays down the procedure of the inter-pleader suit. Order 35 contains 6 rules.------------------------------------------------------------------------------------------------------------

Effect of part payment (175 page)

Section 19 lays down the effect of payment on account of debt or of interest.

Where payment on account of a debt or of interest on a legacy is made beforethe expiration of the prescribed period by the person liable to pay the debt orlegacy or by his agent duly authorized in this behalf, a fresh period of limitationshall be computed from the time when the payment was made.

Essential conditions of a valid part payment

1. The payment must be made within the prescribed period of limitation.2. It must be acknowledged by some form of writing either in the handwriting

of the payer himself of signed by him.3. Section 19 : Part payment towards the debt or interest +

Acknowledgement of the Debt.


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Important points :

1. The part payment implies an admission of a right and anacknowledgement of the corresponding liability.

2. The Part Payment should be paid by the person liable to pay the debt orlegacy or by his agent duly authorized in this behalf. Specific authorizationmust be there. The part payment made by a third person is not anacknowledgement. It is not valid.

3. The part payment must be paid before the expiration of the prescribedperiod. Payment after the prescribed period doe not save limitation.

4. The part payment must include hand-writing of the person liable or in awriting signed by the person making the payment.

5. The payment shall be made to the creditor or to his duly authorized agent.------------------------------------------------------------------------------------------------------------Hierarchy of courts / Subordination of Courts (38 & 39 pages)

Important points :

A. Section 3 narrates that for the purposes of this Code, the District Court issubordinate to the High Court, and every Civil Court of a grade inferior tothat of a District Court and every Court of Small Causes is subordinate tothe High Court and District Court.

1. District Munsif Courts / Metropolitan Magistrate’s Courts / SubordinateJudge’s Courts

2. District Judge’s Court / Additional District Judge’s Courts.3. High Courts.4. Supreme Court.

B. APPLICATION OF THE C.P.C. : Primarily, the Civil Procedure Code, 1908is intended to apply to all the civil suits triable by the Civil Courts in thecountry. Besides the civil courts, in certain circumstances and aspects, theCode is also put into use by the tribunals and revenue courts constributedunder special and local laws.

C. REVENUE COURTS : Section 5 says that the Code of Civil Procedureapplies to Revenue Courts. This section says that where any RevenueCourts are governed by the provisions of this Code in those matters ofprocedure upon which any special enactment applicable to them is silent,the State Government may, by notification in the Official Gazette, declarethat any portions of those provisions which are not expressly madeapplicable by this Code shall not apply to those Courts.

D. ‘Revenue Court’ means a Court having jurisdiction under any local law toentertain suits or other proceedings relating to the rent, revenue or profits ofland used for agricultural purposes, but does not include a Civil Court having


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original jurisdiction under this Code to try such suits or proceedings as beign suits or proceedings of a civil nature.

------------------------------------------------------------------------------------------------------------INHERENT POWERS OF COURT (66 & 67 pages)

MEANING :

Inherent = existing in something, esp. as a permanent or characteristic attribute;vested in (a person etc.) as a right or privilege.

Inherent power of Court is that which is inherent in a Court by the very fact of itsbeing empowered to exercise any jurisdiction at all so that it come within the expresssense of the law of within the consequences that may be gathered from it.

Scope : The Code of Civil Procedure is not exhaustive. Since laws are generalrules, they cannot regulate for all time to come so as to make express provisionagainst all inconveniences, which are infinite in number, and to foresee all casesthat may possibly happen with a view to provisions for all contingencies and forall the times. The purpose of the law is to secure the ends of justice. The lawsare not ends in themselves but are only a means for securing justice.

Object : The object of inherent powers of the Court is to do justice and to undowrong in case of abuse of process of Court fraud or misrepresentation by a partyupon the Court or where there is absence of rule of procedure in thecircumstances of a particular cases.------------------------------------------------------------------------------------------------------------JUDGMENT (93 page)

Definition : Sub-section ()9 of Section 2 defines ‘Judgment’: “ ‘Judgment’ meansthe statement given by the Judge on the grounds of a decree or order ”

ESSENTIAL OF JUDGMENT

1. Judgment shall be signed : Rule-3 provides that the judgment shall bedated and signed by the judge in open Court at the time of pronouncing it.

2. Judgment of a Court of Small Causes need not contain more than thepoints for determination and the decision thereon.

3. Court to state its decision on each issue.4. Court to inform parties as to where an appeal lies.

------------------------------------------------------------------------------------------------------------DECREE (94 page)

Definition : Sub-section (2) of Section 2 defines ‘Decree’

‘Decree’ means the formal expression of an adjudication which, so far as regardsthe Court expressing it, conclusively determines the rights of the final.


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Explanation : A decree is preliminary when further proceedings have to be takenbefore suit can be completely disposed of. It is final when such adjudicationcompletely disposes of the suit, it may be partly preliminary and partly final.

Scope : The procedure of ‘Decree’ is explained in Order 20 from Rules 6 to 20.

Conditions : In order that a decision of a Court may amount to a decree, thefollowing five conditions must be satisfied.

1. There must be an adjudication, i.e. a judicial determination of the matter indispute.

2. The adjudication must have been given in a suit.3. The adjudication must have determined the rights of the parties with

regard to all or any of the matters in controversy in the suit.4. Such a determination must be a conclusive determination.5. Determination of a question within Sec. 47 or Sec.144.

------------------------------------------------------------------------------------------------------------Distinction between “Judgment” and “Decree” (94 page)

Judgment Decree1. Sub-section (9) of Section 2 defines 1. Sub-section (2) of Section 2 defines‘Judgment’. ‘Decree’.2. Rules 1 to 5 of Order-2 deal with 2. Rules 6 to 20 of Order-20 deal withjudgment. decree.3. Section 33 : Judgment and Decree: 3. After the pronouncement of theThe Court, after the case has been judgment, a decree shall follow.heard, shall pronounce judgment andon such judgment a decree shall follow.The judgment contemplates a stageprior to passing of a decree or order.4. There are no such types of judgment. 4. There are five types of decree

recognized by the Code :(a) a preliminary decree(b) a final decree(c) a decree which is partly preliminaryand partly final(d) an order rejecting a plaint.(e) determination of a question withinSec. 47 or Sec. 144

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CAVEAT & Right of the Caveator (65 & 66 pages)

Meaning :Caveat (Latin) – A legal process in delay of proceedings; (Let him beware).

Caveator = One who files a caveat.

A caveat is a caution or warning giving notice to the Court not to issue any grantto take any step without notice given to the party lodging the caveat. It is aprecautionary measure which is generally taken against the grant of probate orletters of administration, as the case may be, by the person lodging caveat. Butnow it has also been extended to other civil proceedings.

Scope : Section 148-A of the Code of Civil Procedure provides for lodging of acaveat. Section 148-A has been inserted by Section 50 of C.P.C. AmendmentAct, 1976 with effect from 01-05-1977.

Object : A caveat protects the caveator’s interest. The caveator is already readyto face the suit or proceedings which is expected to be instituted by his opponent.Hence no ex parte order shall be passed against the caveator. The caveat avoidsmultiplicity of proceedings, thus it saves the expenses, costs and conveniencesof the Courts.

Example : A is owner of the a house-site. He wants to construct a building. Hegot the permission from the Municipality. A started construction. Meanwhile, B theneighbourer claimed some of the land of A, and objected the construction, on thepretext of some bias. Immediately on the day of threatening itself, A filed a caveatagainst B in the competent civil Court praying the Court to give him a noticebefore passing any interim order or relief in case if B files any application beforethe Court, so that he could give the answer to the claim of B.

Right of the Caveator : A caveat protects the interests of caveator. The Courtmust give a notice to the caveator or to his advocates, if the opponent party filesa proceedings / application for an interim order. The Court shall not give any exparte interim order to the opponent party without heraring the caveator.

Time Limit : The caveat will remain in force for 90 (ninety) days from the date offiling.

Important points :

A. Caveat can be filed only to oppose the application and not to support.B. Notice upon the caveator fixing the date of hearing of the application is a

must. It is mandatory under the Sec. 148-A.C. Section 148-A applies only to trial courts, but not appellate Courts.

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Foreign judgment (46 page)

Scope : Sub-section 5 of Section 2 of the Civil Procedure Code defines ‘ForeignCourts’ and sub-section 6 of the Section 2 defines ‘Foreign Judgment’. Section13 and 14 deal with the ‘Foreign judgmen’.

Definitions : Sec. 2 (5) ‘Foreign Court’ means a court situated outside India andnot established or continued by the authority of the Central Government.

Sec. 2 (6) ‘Foreign Judgment’ means the judgment of a Foreign Court.

Important points :

1. The foreign judgment is not conclusive, where it has not been pronouncedby a Court of competent jurisdiction.

2. The judge of the foreign court must consider the local laws pertainingmarriage, probate, wills, etc.

3. The foreign courts must not exceed the principles of Private InternationalLaw.

4. A mistake of law in a foreign judgment is no ground for vacating it.5. Not only a foreign judgment, but also any Court of India must follow the

principles of natural justice.------------------------------------------------------------------------------------------------------------Indigent person (142 page)

Meaning : Indigent / Pauper = poor, needy, pauper, a poor person especially onesupported by law or charity.

Scope : Order-33 explains about the suits to be filed by indigent persons, and theprocedure of filing.

Any property which is acquired by a person after the presentation of hisapplication for permission to sue as an indigent person and before the decision ofthe application, shall be taken into account in considering the question whetheror not the applicant is an indigent person.

Object : It is a general rule, a plaintiff suing in a Court of Law, has to pay Courtfee prescribed under the Court Fees Act, at the presentation of the appropriateCourt fees is not paid, the suit is liable to be rejected.------------------------------------------------------------------------------------------------------------


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Place of suing (48 page)

Object : A suit or proceeding must be filed by the plaintiff in an appropriate andcompetent Court and at the same time, it must be convenient to the parties, tolessen the expenditure and save the time of the Courts, thus the public money.

Scope: Section 15 to 21-A of the Civil Procedure Code, 1908 deal with ‘Place ofsuing’.

Example :

1. A house is located in Nalgonda town and a dispute arises on it. If a suit isto be filed for the recovery of the house, a suit must be filed in the Court ofthe District Munsif Magistrate at Nalgonda.

2. A person has 100 acres in between Hyderabad and Ranga Reddy District, 50acreas in Ranga Reddy District and 50 in Hyderabad District, if any disputesarises regarding that property, both the distrct courts of Hyderabad andRanga Reddy District, shall have jurisdiction to try the disputes.

------------------------------------------------------------------------------------------------------------Attachment of salary or allowances of servant of the Government or railwaycompany or local authority : (118 page)

Whereas the property to be attached is the salary or allowances of a servant of theGovernment or of a servant of a railway company or local authority or of a servant ofa corporation engaged in any trade or industry which is established by a Central,Provincial or State Act or a Government company as defined in Section 617 of theCompanies Act, 1956 (1 of 1956), the Court, whether the judgment-debtor or thedisbursing officer is or is not within the local limits of the Court’s jurisdiction, mayorder that the amount shall, subject to the provisions of Section 60, be withheld fromsuch salary or allowances either in one payment or by monthly installments as theCourt may direct: and, upon notice of the order to such officer as the appropriateGovernment may be notification in the Official Gazette appoint in this behalf:

(a) Where such salary or allowances are to be disbursed within the local limits towhich the Code for the time being extends, the officer or other person whoseduty it is to disburse the same shall withhold and remit to the Court the amountdue under the order, or the monthly installments, as the case may be:

(b) Where such salary or allowances are to be disbursed beyond the said limits,the officer or other person within those limits whose duty it is to instruct thedisbursing authority regarding the amount fo the salary or allowances to bedisbursed shall remit to the Court the amount due under the order, or themonthly installments, as the case may be, and shall direct the disbursingauthority to reduce the aggregate of the amounts from time to time to be


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disburses by the aggregate of the amounts from time to time remitted to the Court.

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Substituted service of summons (76 page)

Meaning : Substituted service of summons is the last way of service of summons.Where the Court is satisfied that the defendant is intentionally avoiding thesummons, the Court shall order for the substituted service of summons, i.e.affixing the summons at the conspicuous place of the Court, at the door of thehouse of the defendant or even giving the advertisement in the newspaper.These methods are called as ‘Substituted Service of Summons’.

Object : It is a natural principle of justice that the defendant must be heard inperson before the suit is decided. Hence service the summons on the defendantis necessary. When the defendant intentionally avoids to take the summons sothat he could not present before the Court, the Court takes utmost care to deliverthe summons to the defendant by person or by post, or by substituted service ofsummons, so that to bring to the knowledge of the defendant that a case isinstituted against him and it is he now protect his interest.

Important points :

A. Where summons is serviced by substituted service ample and reasonabletime should be allowed for the notice to come to the knowledge of thedefendant.

B. Copy affixed to the tree near the house is also sufficient, and it is asubstituted service of summons.

C. The publication of a notice in a newspaper of one district to appear thedefendant in a court in another district is not valid substituted service.

D. Discretion : Granting of order for substituted service is at the discretion ofthe court.

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Written statement (84 page)

Meaning :A plaintiff files his plaint before the competent Court. A plaintiff allegesagainst the defendant for recovery of certain amount or property or a right etc.The defendant has to answer it. The answer of the defendant to the plaint iscalled ‘Written Statement’.

Object : ‘Audi alteram partem’, ‘No man should be condemned unheard’ is theprinciple of natural justice. Both the sides must be heard before passing anyorder or decree. This is the principle lying in the submission of written statement.


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Definition : The term ‘Written Statement’ has not been defined in the CivilProcedure Code. According to the Supreme Court’s opinion ‘the writtenstatement is a term of specific connotation ordinarily signifying a reply to theplaint filed by the plaintiff’.------------------------------------------------------------------------------------------------------------

Counter-Claim (88 page)

Meaning : When the defendant is an action has the claim against the plaintiff whichhe might have asserted by bringing a separate suit, he may raise it in the existingsuit as a counter-claim in his written statement, giving the facts on which it is based.

Scope : Before the Amendment Act of 1976, there was no specific provision forcounter-claim in the Code. Section 6-A to 6-G were inserted in the CivilProcedrue Code, 1908.

Object : The object of counter-claim is to reduce the pendency of cases andcauses of action and cross-claims of similar nature could be clubbed togetherand disposed of by a common judgment. It reduces the expenditure, time andconvenience of the parties and Courts.

Important points :

A. The counter-claim is confined only a money claim.B. Counter-claim cannot be filed by amending written statement.C. No causes of action can arise after filing of written statement or after the

expiry of date for filing.D. The Supreme Court held that the right to make a counter-claim is statutory.E. The counter-claim of the defendant will be treated as a plaint and the

plaintiff has a right to file a written statement in answer to the counter-claim of the defendant.

F. Effect : Even if the suit of the plaintiff is stayed, discontinued, dismissed orwithdrawn, the counter-claim will be continued and decided on merits.

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Injuctions (147 page)

Meaning :

Injuction : a command; a behest; a restraining writ.

An injuction is a judicial process whereby a party is required to do, or to refrainfrom doing, any particular act. It is in the nature of a preventive relief granted to alitigant quia timet that is because he fears future possible injury.


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Object : Its main object is to preserve the subject-matter of the suit in status quofor the time being, and to prevent any change in it until the final determination ofthe suit.

Classification : Injuctions are classified into two types – (1) Temporary and (2)Permanent.------------------------------------------------------------------------------------------------------------

Distinction between Review and Revision (62 page)

Review :

Meaning : The term ‘Review’ means a judicial re-examination of a case in certainspecified and prescribed circumstances. This is the ordinary legal significance ofthe term. A review is practically re-hearing of a case by the same judge who hasdecide it.

Revision :

Meaning : The act or an instance of revising, the process of being revised.

Review Revision1. Section 11r Order 47 deal with 1. Section 115 deals with the Revision.Review.2. Any court which passed the decree 2. The High Court can only do revisionor made order can review the case. of any case which has been decided by

any court subordinate to it.3. The review can be made only on an 3. Revisional powers can be exercisedapplication by an aggrieved party. by the High Court on an application or

even suo motu (of its own motion)4.The order granting the review is 4. An order passed in the exercise ofappealable. reviisional jurisdiction is not

appealable.5. Review can be made even when an 5. Revisional power can be exercisedappeal lies to the High Court. by the High Court only in a case where

no appeal lies to the High Court.------------------------------------------------------------------------------------------------------------Effect of death on or before the accrual of the right to sue (172 page)

Important points :

A. Object : The object of the section is merely to limit the time during which anaction m ay be brought. It is by no means intended to take away the right of apossible defendant to an action. Nor was it, ever intended to accelerate anyright of action against such person. The section does not attempt to add tothe prescribed period but only postpones the start of limitation.


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B. This section applies where the right to sue accrued on death e.g. wherethe heirs of a deceased partner sued for an account and a share of theprofits of the partnership which had been dissolved by the death of suchpartner. There was no interval of time between the death and the accrualof the right to sue. For the right accrued on death, neither before or after it.

C. The term ‘legal representative’ includes an heir.

D. It must be noted that the death must occur before the right to sue or makean application accrues.

E. Section 16 applied to all suits and applications viz. execution of decrees. Itdoes not apply to appeals.

F. Section 16 does not aplly to idol as it is an artificial person and never dies.------------------------------------------------------------------------------------------------------------Effect of fraud or mistake (172 & 173 pages)

Important points :

A. Section 17 explains about the effect of fraud or mistake on limitation.

B. The basic principle of Sec. 17 is that a party wrongly concealing materialfacts and thereby preventing discovery of wrong or the fact that a cause ofaction has accrued against him, cannot be allowed to take advantage ofhis own wrong by setting up the statute of limitation.

C. The benefit of this section can only be invoked if the party is affected bythe fraud or mistake as to his right.

D. Strict proof is necessary to show that the plaintiff’s right or title has beenconcealed from his knowledge by the opponent party’s fraud. Mereignorance of his right is not sufficient.

E. Fraudulent concealment is one of facts or sometimes a mixed question oflaw and fact to be decided on the fact and circumstances of each case.

F. This section does not applicable to criminal cases.

G. Section 17 is applicable to juristic persons such as a Corporation.

H. Burden of proof lies on the plaintiff / applicant.-----------------------------------------------------------------------------------------------------------


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Summon on defendant (74 page)

Summon = An authoritative or urgent call to attend on some occasion or dosomething. A call to appear before judge or a Magistrate. Summon (Singular) /Summonses (Plural).

“Summons” has not been defined in the Code of Civil Procedure. The Courtsends an intimation to the defendant that suit is instituted against him, and he isrequired to attend before the Court on a particular date and to answer it. Suchintimation is called “Summons”. Some times, the Court sends a summons to anywitness who is required in a suit, to attend before it and to give the evidence.

Scope: Order 5 of the C.P.C. provides the procedure for the issues and service ofsummons to defendant. Order 5 contains 30 Rules. Order 16 of the C.P.C.provides the procedure for the issue and service of summons witness for theirattendance. Order 16 contains 21 Rules.

SERVICE OF SUMMONS :

Methods for serving summons on the Defendant : There are three ways ofservice of summons. They are :

1. Personal or direct service.2. Service by post3. Substituted service.

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Pleadings Generally (78 page)

SCOPE: Order 6 explains about the “pleadings generally”. Order-6 contains 18Rules. Order-7 deals with “Plaint”. Order-7 contains 18 Rules. Order-8 deals with writtenstatement, set-off and counter-claim. Rules 1to5 and 9 and 10 of the order-8 explain aboutwritten statement. Rules 6 and 7 of the Order-8 explain about set-off and Rules 6-A to 6-G of the Order-8 explain about the counter claim.

MEANING:

Pleadings= A formal statement of the cause of an action or defence.

DEFINITION: Rule 1 of Order-6 defines ‘pleadings’. “Pleadings shall meanplaint or written statement.

Mogha: “ Pleadings are a statement in writing drawn up and filed by each party toa case, stating what his contentions will be at the trial and giving all such details as hisopponent needs too know in order to prepare his case in answer.”


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OBJECT; The object of pleadings is to give fair notice to each party of what theopponents case is, and to ascertain, with precision, the points on which the parties agreeand those on which they differ, and thus to bring the parties to a definite issue,Proleadings remove irrelevancy. Pleadings save the time and expenses of the courts andparties. Pleadings face the direct points. The main objects of pleadings is to find out andnarrow down the controversy between the parties. The party, who receives the opponentspleadings, knows what points the opposite party will arise at the trial, and he will preparehimself to face it with his evidence.

IMPORTANT POINTS ON RULE-2:

A. It is the duty of the parties to state only the material facts and notevidence.

B. All necessary particulars must be embodied in the proleadings.C. The pleadings must not only be in concise, but also precise.D. Questions of law need not be pleaded.E. Pleas and facts constituting them should be clearly expressed. F. Relief could be given only on the basis of pleadings.G. Evidence can be let in only on the basis of pleadings.H. A plea not raised in pleading cannot be argued. If there is no pleading,

there is no cause of action.

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Arrest and attachment before judgment (146 page)

PRINCILE: The general principle is that when the debtor fails to pay the debtback to his creditor, the creditor sues the debtor. On proof the Court passes the decreeagainst debtor. If the judgment-debtor fails to pay the decreed amount, the court mayorder for his arrest or attachment of his property.

Under certain circumstance, the creditor convinces the Court that the Debtor isplanning to abscond from the jurisdiction of the Court, or to go abroad, or destroy theproperty, them the Court may issue a warrant to arrest the debtor before judgment.

SCOPE: Order-38 of the C.P.C deals with the “ Arrest before Judgment’ and“Attachment before judgment”. Rules 1 to 4 of Order-38 explain the procedure about “Attachment before Judgment”.------------------------------------------------------------------------------------------------------------


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ATTACHMENT BEFORE JUDGMENT (146 page)

OBJECT: Attachment before judgment can be ordered, where the Court, on anapplication of the plaintiff, is satisfied that the defendant, with intent to obstructs or delaythe execution of any decree that may be passed against him --- a) is about the dispose ofthe whole or any part of his property; or b0 is about to remove the whole or any part ofhis property from the local limits of the jurisdiction of the Court. The sole object behindthe order would be satisfied. It is a sort of a guarantee against decree becominginfructuous for wants of property available from which the plaintiff can satisfy thedecree.

------------------------------------------------------------------------------------------------------------Jurisdiction (36 page)

DEFINITION: Jurisdiction may be defined to be the power of the Courts to hearand determine a cause, to adjudicate and exercise any judicial power in relation to it. It isthe authority with which the Court is vested to decide matters that are litigated before itor to take cognizance, of matters presented in a formal way for its decision. “Ubi jus ibiremedium” ( Wherever there is right, there is remedy) is the principle of jurisdiction.

KINDS OF JURISDICTION: Jurisdiction can be classified into four categories:-

1. Territorial or Local Jurisdiction;2. Pecuniary Jurisdiction;3. Jurisdiction as to subject-matter and;4. Original and Appellate jurisdiction.

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ATTACHMENT (page 102)

Sec 60. Property liable to attachment and sale in execution of decree:-

The following property is liable to attachment and sale in execution of a decree,namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills ofexchange, hundis, promissory notes, Government securities, bonds or other securitiesfor money, debts, shares in a corporation and, save as hereinafter mentioned, all othersaleable property, movable or immovable, belonging to the judgment-debtor, or overwhich, or the profits of which, he has a disposing power which he may exercise forhis own benefit, whether the same be held in the name of the judgment debtor or byanother person in trust for him or on his behalf:

------------------------------------------------------------------------------------------------------------Suits by or against the Government or Public Officers in their officialcapacity (page 139)

SCOPE; Section 79 to 82 of the C.P.C explain about the suits by or against thegovernment or public officers in their official capacity. Order 27 of the code explains


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about the procedure of proceedings by or against the government or public officers in their official capacity. There are 8 Rules in the order-27.

i. Title: Suits by or against Government: Section79 provides in a suit by oragainst the Government, the authority to b e named as plaintiff or defendant,as the case may be, shall be,

A) in the case of a suit by or against the central government, the union ofIndia,

B) In the case of a suit or against the State Government , the state.

IMPORTANT POINTS ON SECTION 80:

A. Where the cause of action has not arisen at the time of the notice, the notice isinvalid.

B. Where a person who has given notice dies, his successor should give fresh notice.C. In computing the period of limitation for instituting the suit, the period of notice

under this section must be excluded.D. No notice is necessary in respect of an act following from an illegal act of a public

officer,E. No notice under this section is necessary, if a suit is filed as per direction while

disposing of a writ petition.------------------------------------------------------------------------------------------------------------

“When the limitation begins to run, it will continue to run” (166 page)

REFERENCE: “ when the limitation begins to run, it will continue to run.” It is afamous quotation in the law of limitation. This quotation is incorporated in Section 9 ofthe limitation Act, 1963.

Section -9 : Sec.9. Continuous running of time.--- Where once time has begun torun, no subsequent disability or inability to institute a suit to make an application stops it.

Provided that, where letters of administration to the estate of a creditor have been grantedto his debtor, the running of the period of limitation for a suit to recover the debt shall besuspended while the administration continues.

OBJECT : The framers of the Law of Limitation framed Sections 6, 7 and 8 for thebenefit of the persons who are suffering the disability i.e. minority, insanity or idiocy.

PROBLEM:M lent money to N under an Demand pronote 1-1-1986. From June, 1988, M wassuffering from mental disability and hospitalized and completely recovered on 10-6-1989.On 1st July, 1989, M was hospitalized due to mental disability in June, 1988. i.e, beforethe limitation would start. Hence the suit is maintainable in the above given problem.


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If M was hosptalised due to mental disability on or after 1-1.1989, and after recoveringfrom it, and would sue N, the suit is not maintainable.------------------------------------------------------------------------------------------------------------Decree (page 94)

DEFINITION: Sub-section(2) of section 2 defines ‘Decree’.

Sec. 2 (2). “Decree” means the formal expression of an adjudication which, sofar as regards the court expressing it, conclusively determines the rights of the final, Itshall be deemed to include the rejection of a plant and the determination of any questionwithin section 144, but shall not include,---

A) any adjudication from which an appeal lies as an appeal from an order, orB) Any order of dismissal for default.

Explanation: A decree is preliminary when further proceedings have to be taken beforesuit can be completely disposed of, It is final when such adjudication completely disposesof the suit. It may be partly preliminary and partly final.

Sec. 2 (3) defines “Decreeholdfer”.Sec. 2 (3). “ Decree – holder” means any person in whose favour a decree has

been passed on an order capable of execution has been made.

SCOPE : The procedure of “Decree” is explained in Order 20 from Rules 6 to 20.

CONDITIONS: In order that a decision of a Court may amount to a decree, thefollowing five conditions must be satisfied.

1. There must be an adjudication, i.e., a judicial determination of the matter indispute.

2. The adjudication must have been given in a suit.3. The adjudication must have determined the rights of the parties with regard to all

or any of the matters in controversy in the suit.4. Such a determination must be a conclusive determination.5. Determination of a question within Sec. 47 or Sec. 144.

------------------------------------------------------------------------------------------------------------Limitation extinguishes only the remedy and not the right (181 & 182 pages)

NATURE: The law of limitation is a procedural law. It ca be negatively postulated. Itdoes not create a right or cause of action. It merely prescribes that a particular remedyis available upto a certain period and not thereafter. It postulates that after a particularperiod, the relevant suit or proceeding cannot be instituted in a court of law. Thereforelimitation bars the judicial remedy. It does not create or extinguish a right.

EXAMPLES:1. If a debtor pays up a time-barred debt while under an impression the it is not

barred, he afterwards cannot claim it back.


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2. A took the loan of Rs. 10,000/- from B on 01-01-2000. The limitation for moneysuit is 3 years. A did not pay the loan amount up to 31-12-2002. B also did notinstitute any suit against A within the stipulated period of limitation of 3 years.After 01-01-2003, B lost his right to sue against A for the recovery of the money,as the limitation period of three years would bar to sue. On 10-01-2003, A came toB and paid the entire loan. A did not know about the bar of time and paid the debt.After payment, A cannot sue B- the creditor to refund the money to him on theground that his claim for recovery of the debt had become time barred. Here thelimitation act only bars the judicial remedy of B, and not the right of B.

3. It is only the remedy which is barred if the suit is not brought within the specifiedtime limit, but the right itself continues to exist, and if therefore, there exists someother procedure which allows such a right to be enforced by the limitation Actcannot bar it a time barred claim may be enforced by entering into a newagreement written and signed by the debtor or his agent properly authorized inthis behalf, as provided by Section 25 of the Indian Contract Act, 1872.

4. The provisions of the Limitation Act apply only to the proceedings before Courts,and not to proceedings before bodies other than courts even though such otherbodies or authorities might have been vested with certain specified powersconferred on court under C.P.C OR CR.P.C.

5. It is general practice in India that the creditor goes to the village elders or politicalleaders or to caste elders to get the time-barred debt. The village elders or caste orpolitical leaders call both the creditor and debtor and make them compromise to alesser amount than the original amount. The debtor pays the lesser amount as percompromise even though the debt is time-barred.

------------------------------------------------------------------------------------------------------------The Limitation Act, 1963 (155 page)

MEANING:Limitation. (n). = The act of limiting; a disabled for limited condition; a defect. Limit. (v.t). = To put bounds to; to restrict; a boundary; a terminal point.Ordinary meaning is given above. But when it is restricted to the Law of Limitation, ithas to be confined to the period of time prescribed for instituting any legal proceedingunder the provisions of the statute. Section 2(j) of the Limitation Act, 1963 defines “Period of Limitation”

Sec. 2 (j). “ Period of limitation” means the period of limitation prescribed for anysuit, appeal or application by the schedule, and prescribed period means the period oflimitation computed in accordance with the provisions of this Act.

NATURE : The law of limitation is basically a procedural law. It is clearly meantto be exhaustive. It does not permit any other discovery as to a new period of


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limitation. Strict construction of limitation means reasonably strict construction so that itman to operate with unnecessary stringency. The law of limitation must be appliedstringently even if it operated harshly or unjustly in some cases.

SALIENT FEATURES OF THE ACT

1. The law of limitation is an exhaustive code.

2. The Act does not recognize racial or class distinction.

3. It is basically a procedural law. It applies to judicial process only.

4. “Limitation Act only bars the remedy and does not extinguish the remedy”

5. It does not apply to defence.

6. It ca be set up by a successor in right or title.

7. There can be a waiver of the right to plead limitation.

8. Ignorance, Mistake, poverty or hardship does not save limitation.

9. Justice, equity and good conscience do not override the law of limitation.

10. The Act embodies both adjective and substantive law.

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