Civil Trial 2020 Ebook

JUDICIAL ACADEMY JHARKHAND
Table of Contents
Chapter - I
1. Institution of suit : 5
2. Jurisdiction of Courts : 7
3. Plaint : 23
4. Documents filed with plaint : 26
5. Parties to the suit : 28
6. Suit Valuation and Court fee : 41
7. Suit by or against minor or person in disability : 58
8. Suit by or against Government : 60
9. Return of Plaint : 65
10. Rejection of plaint : 68
11. Service of summons : 77
12. Appearance of Defendant & Written Statement : 99
13. Set off and Counter claim : 104
14. Appearance of parties & Consequences of
non appearance : 114
15. Examination of parties & ADR : 126
16. Settlement of issues : 139
17. Hearing of Suit : 146
18. Production, Impounding & Return of
Documents : 171
19. Arguments by the parties : 190
20. Judgment & Decree : 199
21. Final Decree Proceedings : 211
Chapter - II
1. Strike out and Adding of parties : 222
2. Striking out & Amendment of Pleadings : 241
3. Amendment of Pleadings : 243
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4. Substitution of Legal Representatives : 251

5. Abatement of suit : 262
6. Withdrawal of suit or abandonment of : 270
part of claim
7. Transposition of defendant : 280
8. Compromise of suit : 281
9. Issuance of Commission : 290
10. Arrest and Attachment before Judgment : 297
11. Temporary Injunction : 304
12. Ex-parte injunction : 308
13. Breach of Injunction : 313
14. Appointment of Receiver : 315
Chapter - III
1. Application for execution : 319
2. Stay of execution : 339
3. Mode of execution : 342
4. Adjudication of claims and objections between
the parties to the suit (Section 47 CPC) : 388
5. Resistance to delivery of possession : 391
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e-HAND BOOK OF CIVIL TRIAL

CHAPTER I-GENERAL PROCEDURES
INSTITUTION OF SUIT
1. The procedure for institution of suit has been laid down under
Section 26 r/w Order IV R 1 of the Civil Procedure Code which
provides:
Suit to be Commenced by Plaint (1) Every suit shall be
instituted by presentation of plaint in duplicate supported by
affidavit and duly verified by one of the parties pleading or by
some other person proved to the satisfaction of the Court to be
acquainted with the facts of the case.
The Civil Saristedar are authorized under Rule 22 of the
Jharkhand Civil Court Rules (hereinafter called ―JCCR‖) to
receive the plaint, but after centralized computer filing, the
plaint is presented as per Rule 8 of the JCCR in the CIS.
Saristedar is appointed for receiving the plaint by the District
Judge.
Rule 8 of JCCR - Plaints may be presented "in duplicate" after
complying with the relevant Rule contained in Order VI of the
Civil Procedure Code and within time during the Court hours
before the Centralized Computer Filing Counter to facilitate
immediate registration of cases, stamp reporting, calculation of
Court fees and removal of defects, if any. The ministerial staff
available at the centralized filing counter under the Saristedar at
this very stage, will ensure that all defects are removed.
On receipt of the plaint, the Saristedar shall verify the plaint on
the following and give office note on the following points;-
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(1) Plaint is in proper form as per Order 7 Rule 1 of Civil

Procedure Code and Rules 13 & 14 of the JCCR
(2) Complete address of the parties as provided in Rule 16 of the
JCCR
(3) Valuation of suit is properly mentioned.
(4) Proper Court fee has been paid.
(5) Court has got pecuniary and territorial jurisdiction
(6) Suit is not barred by the law of limitation.
Role and responsibility of presiding officer before admitting
the suit for hearing- The stage when the plaint is presented
before the Court is of crucial importance because it is the stage
when the first order sheet is drawn. The report of the Saristedar
is called for by the Presiding Officer of the Court, hereinafter
called P.O., and after that the report need to be made
immediately and preferably within maximum of three days. The
P.O. must personally scrutinize the report of the Saristedar to
ensure that the plaint is as per the requirements of the Civil
Procedure Code (hereinafter called ―the CPC‖) and the JCCR.
The P.O. shall verify the entire plaint on the following
aspects-
 Jurisdiction of the Court to entertain the suit.
 Plaint is in proper form.
 Complete address of the parties are provided as per Rule 16
of the JCCR
 Whether the necessary parties have been added
 Valuation of suit is properly mentioned.
 Proper Court fee has been paid.
 Is the suit barred by the law of limitation or any other law
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 If the suit is by or against a minor or a person under

disability, whether the provisions under Order XXXII of the
C.P.C has been complied with.
 If the suit is by or against the Government, whether the
provisions under Order XXVII and Sections 79 and 80 of the
C.P.C have been complied with.
Go to Index
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(1) – JURISDICTION OF THE Court

As stated above at the very outset the Court has to verify its
jurisdictional competence to admit a suit. The CPC does not
define the term jurisdiction. In fact, none of the substantive or
procedural laws seeks to define the term ―jurisdiction".
The Black‘s Law Dictionary defines ―jurisdiction" as ―a Court‘s
power to decide a case or issue a decree."
The Calcutta High Court in a full bench judgment in Hirday
Nath Roy vs. Ram Chandra Barna Sharma 1920 SCC OnLine
Cal 85 sought to explain the term jurisdiction. It stated “...
jurisdiction may be defined to be the power of Court to hear and
determine a cause, to adjudicate and exercise any judicial power
in relation to it; in other words, by jurisdiction is meant the
authority which a Court has to decide matters presented in a
formal way for its decision."
The jurisdiction can be demarcated into three categories -
 Subject matter jurisdiction, i.e. whether the particular
Court in question has the jurisdiction to deal with the
subject matter in question;
 Territorial jurisdiction, i.e. whether the Court can decide
upon matters within the territory or area where the cause of
action arose; and
 Pecuniary jurisdiction, i.e. whether the Court can hear a
suit of the value of the suit in question.
Before going on any further, it must be mentioned that the
jurisdiction of the Court is not whether the Court is entitled to
pass a particular order or decree in a suit. It is whether the Court
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has the right to hear a particular case. Further, the jurisdiction is

decided by the averments made in the plaint, and not by the
pleading of the defendant. Section 9 deals with subject matter
jurisdiction.
Courts to try all civil suits unless barred (Section 9)—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.
Scope-
In Sanker Naryan Potti v K Sreedevi 1998(3) SCC 751 the Apex
Court held ―...it is obvious that in all types of civil disputes Civil
Courts have inherent jurisdiction as per Section 9 of the CPC
unless a part of that jurisdiction is carved out from such
jurisdiction, expressly or by necessary implication, by any
statutory provision and conferred on any other tribunal or
authority."
The test adopted in examining such a question is (i) whether the
legislative intent to exclude arises explicitly or by necessary
implication,(ii) whether the statute in question provides for
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adequate and satisfactory alternative remedy to a party aggrieved

by an order made under it.
Where a statute gives finality to the orders of the special
tribunals, the jurisdiction of the Civil Courts must be held to be
excluded if there is adequate remedy to do what the Civil Courts
would normally do in a suit. AIR 2000 SUPREME Court 2220
"State of A.P. v. Manjeti Laxmi Kantha Rao"
Thus, the law confers on every person an inherent right to
bring a suit of civil nature of one‘s choice, at one‘s peril,
howsoever frivolous the claim may be, unless it is barred by a
statute.
Ramesh Gobindram vs Sugra Humayun Mirza Wakf 2010
(8)SCC726 -In this case the Court followed Rajasthan SRTC vs
Bal Mukund Bairwa 2009(4) SCC 299 and held that there is a
presumption that Civil Court has jurisdiction. Ouster of Civil
Court's jurisdiction is not to be readily inferred. A person taking
a plea contra must establish the same. Even where the
jurisdiction is sought to be barred under a statute, the Civil
Court can exercise its jurisdiction in respect of some matters
particularly when the statutory authority or the tribunal acts
without jurisdiction.
When the plaintiff has multiple options to institute the suit he
can choose the jurisdiction as per his convenience. For example,
in cases arising out of a motor vehicle accident, when the victim
is a workman, he has an option to either file a claim under the
Motor Vehicle Act or under the Workman Compensation Act. It is
for him to opt for the particular jurisdiction. On this point, the
Hon‘ble Apex Court has observed in Dhannalal vs. Kalawatibai &
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Ors 2002 (6) SCC 16: ―Plaintiff is dominus litis, that is, master of,
or having dominion over, the case. He is the person who has
carriage and control of an action. In case of conflict of jurisdiction
the choice ought to lie with the plaintiff to choose the forum best
suited to him unless there be a Rule of law excluding access to a
forum of plaintiffs choice or permitting recourse to a forum will
be opposed to public policy or will be an abuse of the process of
law."
In a case Dhruv Green Field LTD. vs. Hukam Singh, (AIR 2002
SC 2841) the Hon‘ble Supreme Court observed that-
(1) If there is an express provision in any special Act barring the
jurisdiction of a Civil Court to deal with matters specified
thereunder the jurisdiction of an ordinary Civil Court shall stand
excluded.
(2) If there is no express provision in the Act but an examination
of the provisions contained therein lead to a conclusion with
regard to the exclusion of jurisdiction of a Civil Court, the Court
would then inquire whether any adequate and efficacious
alternative remedy is provided under the Act; if the answer is in
the affirmative, it can safely be concluded that the jurisdiction of
the Civil Court is barred. If, however, no such adequate and
effective alternative remedy is provided then exclusion of the
jurisdiction of the Civil Court cannot be inferred.
(3) Even in cases where the jurisdiction of a Civil Court is barred
expressly or impliedly the Court would nonetheless retain its
jurisdiction to entertain and adjudicate the suit provided the
order complained of is a nullity.
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Lala Ram Swarup & Ors. vs. Shikar Chand & Anr. [1966(2) SCR
553]. In this case, Gajendragadkar, CJ. speaking for a
Constitution Bench of the Supreme Court, formulated the
following tests:
"The two tests, which are often considered relevant in dealing
with the question about the exclusion of Civil Courts jurisdiction
are (a) whether the special statute which excludes such
jurisdiction has used clear and unambiguous words indicating
that intention; and (b) does that statute provide for an adequate
and satisfactory alternative remedy to a party that may be
aggrieved by the relevant order under its material provisions.
Applying these tests the inference is inescapable that the
jurisdiction of the Civil Courts is intended to be excluded.‖
General principles -From various decisions of the Hon‘ble

Supreme Court, the following general principles relating to
jurisdiction of a Civil Court emerge:
a. A Civil Court has jurisdiction to try all suits of civil nature
unless their cognizance is barred either expressly or impliedly.
b. Consent can neither confer nor take away jurisdiction of a
Court.
c. A decree passed by a Court without jurisdiction is a nullity and
the validity thereof can be challenged at any stage of the
proceedings, in execution proceedings or even in collateral
proceedings.
d. There is a distinction between want of jurisdiction and
irregular exercise thereof.
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e. Every Court has inherent power to decide the question of its

own jurisdiction.
f. The jurisdiction of a Court depends upon the averments made
in a plaint and not upon the defense in a written statement.
g. For deciding the jurisdiction of a Court, the substance of a
matter and not its form is important.
h. Every presumption should be made in favor of the jurisdiction
of a Civil Court.
i. A statute ousting the jurisdiction of a Court must be strictly
construed.
j. Burden of proof of exclusion of the jurisdiction of a Court is on
the party who asserts it.
k. Even where jurisdiction of a Civil Court is barred, it can still
decide whether the provisions of an Act have been complied with
or whether an order was passed de hors the provisions of law
CASES IN WHICH JURISDICTION OF CIVIL COURTS OF

JHARKHAND IS BARRED:
1. Where the Rent Act covered the field to the total exclusion of
all other laws, it excluded the substantive aspect of the
general law of the tenant-landlord relationship, and on the
procedural aspect barred the forum of the Civil Courts.
2. Civil suit challenging assessment and levy of property tax.
3. Public Encroachment Act
4. Section 258 of the CNT Act subject to the ratio decided in
Paritosh Maity case.
5. Where bar is contained in the Income Tax Act.
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6. In case of simultaneous proceedings under an Act and the

Code.
PLACE OF SUING - Sections 15 to 20 of the Code contain
detailed provisions relating to jurisdiction of Courts. They
regulate forum for the institution of suits. They deal with
matters of domestic concern and provide for the multitude of
suits which can be brought in different Courts.
Jurisdiction is determined mainly on the grounds of:
1.Suit value
2.Geographical boundaries of a Court
Every suit shall be instituted in the Court of the lowest grade

competent to try it.(Sec.15)--- This provision is with regard to
the pecuniary jurisdiction.
In the state of Jharkhand the pecuniary jurisdiction of a
Court is decided as per Section 19 of The Bengal, Agra and
Assam Civil Courts Act, 1887. The pecuniary jurisdiction of
different Civil Courts subsequent to 2019 amendment stands as
follows:
(i) Extent of jurisdiction of Additional Civil Judge (Junior
Division) – Rs. 5,00,000/- (Additional Munsif).
(ii) Extent of jurisdiction of the Permanent Court of Civil
Judge (Junior Division) – Rs. 7,00,000/- (Munsif)
(iii) Extent of jurisdiction of Civil Judge (Senior Division) –
Unlimited.
(iv) Appellate pecuniary jurisdiction of the District Judges –
Less than Rs. 25,00,000/-
Page 13 of 401
Suits to be instituted where subject-matter situate (Sect.16) -

Subject to the pecuniary or other limitations prescribed by any
law, suits-
(a) for the recovery of immovable property with or without rent
or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage
of or charge upon immovable property,
(d) for the determination of any other right to or interest in
immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint
or attachment, shall be instituted in the Court within the
local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation
for wrong to, immovable property held by or on behalf of the
defendant may, where the relief sought can be entirely obtained
through his personal obedience, be instituted either in the Court
within the local limits of whose jurisdiction the property is
situate, or in the Court within the local limits of whose
jurisdiction the defendant actually and voluntarily resides, or
carries on business, or personally works for gain.
Explanation .-In this Section "property" means property situate
in India.
Suits for immovable property situate within jurisdiction of
different Courts (Sect.17)—Where a suit is to obtain relief
respecting, or compensation for wrong to, immovable property
situate within the jurisdiction of different Courts. the suit may be
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instituted in any Court within the local limits of whose

jurisdiction any portion of the property is situate :
Provided that, in respect of the value of the subject-matter of the
suit, the entire claim is cognizable by such Court.
Place of Institution of suit where local limits of jurisdiction
of Courts are uncertain (Sect.18)— (1) Where it is alleged to be
uncertain within the local limits of the jurisdiction of which of
two or more Courts any immovable property is situate, any one of
those Courts may, if satisfied that there is ground for the alleged
uncertainty, record a statement to that effect and thereupon
proceed to entertain and dispose of any suit relating to that
property, and its decree in the suit shall have the same effect as
if the property were situate within the local limits of its
jurisdiction:
Provided that the suit is one with respect to which the Court is
competent as regards the nature and value of the suit to exercise
jurisdiction.
(2) Where a statement has not been recorded under sub-Section
(1), and an objection is taken before an Appellate or Revisional
Court that a decree or order in a suit relating to such property
was made by a Court not having jurisdiction where the property
is situate, the Appellate or Revisional Court shall not allow the
objection unless in its opinion there was, at the time of the
institution of the suit, no reasonable ground for uncertainty as to
the Court having jurisdiction with respect thereto and there has
been a consequent failure of justice.
Scope -Place of suing in case where the subject-matter is
immovable property (Sect.16 to 18)- Section 16 recognizes a well
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established principle that actions against res or property should

be brought in the forum where such res is situate. A Court within
whose territorial jurisdiction the property is not situated has no
power to deal with and decide the rights or interests in such
property. In other words, a Court has no jurisdiction over a
dispute in which it cannot give an effective judgment. The proviso
to Section 16, no doubt, states that though the Court cannot, in
case of immovable property situate beyond jurisdiction, grant a
relief in rem still it can entertain a suit where relief sought can be
obtained through the personal obedience of the defendant. The
principle on which the maxim was based is that Courts could
grant relief in suits respecting immovable property situate abroad
by enforcing their judgments by process in personam, i.e. by
arrest of defendant or by attachment of his property. The proviso
is thus an exception to the main part of the Section cannot be
interpreted or construed to enlarge the scope of the principal
provision. It would apply only if the suit falls within one of the
categories specified in the main part of the Section and the relief
sought could entirely be obtained by personal obedience of the
defendant. Harshad Chiman Lal Modi vs D. L. F. Universal LTD,
AIR 2005 SC 4446, (2005) 7 SCC 791, (2005) 6 Supreme 634.
Immovable property situated within jurisdiction of different
Courts - A suit can be instituted in any Court within the local
limits of whose jurisdiction any portion of the property is
situated, but where the defendant did not include a property in
dispute, in a suit previously filed inter se between the parties, the
principle of res judicata would apply and subsequent suit qua
Page 16 of 401
that property is not maintainable, Sukhdev Singh & Anr. v.

Gurdev Singh AIR 2010 (NOC) 861 (P. & H.)
Suits for compensation for wrongs to person or movables
(Sect.19)—Where a suit is for compensation for wrong done to
the person or to movable property, if the wrong was done within
the local limits of the jurisdiction of one Court and the defendant
resides, or carries on business, or personally works for gain,
within the local limits of the jurisdiction of another Court, the
suit may be instituted at the option of the plaintiff in either of the
said Courts.
Scope- When a suit for compensation for wrong done to person or
to movable property is filed, the option is with the plaintiff to
either institute the case based on such cause of action at the
place where the defendant resides or works for gain or at the
place where the wrong was committed. No other choice is
available to the plaintiff besides the above, Sreepathi Hosiery
Mills (P) Ltd., Calcutta and anr. v. Chitra Knitting Co., Tiruppnr
AIR 1977 Mad. 258
Other suits to be instituted where defendants reside or cause
of action arises (Sect.20)—Subject to the limitations aforesaid,
every suit shall be instituted in a Court within the local limits of
whose jurisdiction—
(a) the defendant, or each of the defendants where there are more
than one, at the time of the commencement of the suit, actually
and voluntarily resides, or carries on business, or personally
works for gain; or
(b) any of the defendants, where there are more than one, at the
time of the commencement of the suit, actually and voluntarily
Page 17 of 401
resides, or carries on business, or personally works for gain,

provided that in such case either the leave of the Court is given,
or the defendants who do not reside, or carry on business, or
personally works for gain, as aforesaid, acquiesce in such
institution; or
(c) The cause of action, wholly or in part, arises.
Explanation.-A corporation shall be deemed to carry on business
at its sole or principal office in India or, in respect of any cause of
action arising at any place where it has also a subordinate office,
at such place.
Scope- The question of jurisdiction, is to be decided according to
averments made in the plaint. Section 20, however, starts with
―subject to the limitations‖ mentioned therein whereas Section 16
provides that when the suit is regarding foreclosure, sale or
redemption in the case of mortgage of or charge of immovable
property, the suit shall be filed in the Court within whose
jurisdiction the property that has been mortgaged, is situated.
Object of Section-Section 20 has been designed to secure that
justice might be brought as near as possible to every man‘s
hearthstone and that the defendant should not be put to the
trouble and expense of traveling long distances in order to defend
himself, Laxman Prasad v. Prodigy Electronics Ltd., AIR 2008
Supreme Court 685 : 2008 (1) SCC 618
Determination with regard to the maintainability of a suit
must be made with reference to the date of the institution of
the suit - Determination with regard to the maintainability of a
suit, it is trite, must be made with reference to the date of the
institution of the suit. If a cause of action arises at a later date, a
Page 18 of 401
fresh suit may lie but that would not mean that the suit which
was not maintainable on the date of its institution, unless an
exceptional case is made out therefor, can be held to have been
validly instituted. The material date for the purpose of invoking
Section 20 is the one of institution of a suit and not the
subsequent change of residence. Change of residence subsequent
to the decision of a Court would not confer territorial jurisdiction
on the Court which did not have it, Mohanakumaran Nair v.
Vijayakumaran Nair, AIR 2008 SC 213
A plain reading of Section 20 of the Code leaves no room for
doubt that it is a residuary provision and covers those cases not
falling within the limitations of Sections 15 to 19. The opening
words of the Section ―Subject to the limitations aforesaid‖ are
significant and make it abundantly clear that the Section takes
within its sweep all personal actions. A suit falling under Section
20 thus may be instituted in a Court within whose jurisdiction
the defendant resides, or carries on business, or personally
works for gain or cause of action wholly or partly arises. Harshad
Chiman Lal Modi vs D. L. F. Universal LTD, AIR 2005 SC 4446,
(2005) 7 SCC 791, (2005) 6 Supreme 634.
Where on the basis of a contract to sell the land, a suit for
specific performance has been filed, which also demanded
possession, the suit will be governed by Section 16(d) and not
under Section 20(c) of the CPC, Ananda Bazar Patrika Ltd. & Ors.
v. Biswanath Prasad Maitin, AIR 1986 Pat. 57
Objections to jurisdiction (Sect.21) — (1) No objection as to the
place of suing shall be allowed by any Appellate or Revisional
Court unless such objection was taken in the Court of first
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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.
(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.
(3) No objection as to the competence of the executing Court with
reference to the local limits of its jurisdiction shall be allowed by
any Appellate or Revisional Court unless such objection was
taken in the executing Court at the earliest possible opportunity,
and unless there has been a consequent failure of justice.
Scope: It provides that the objections to the jurisdiction of a
Court based on over-valuation or under-valuation shall not be
entertained by an appellate Court except in the manner and to
the extent mentioned in the Section. It is a self-contained
provision complete in itself, and no objection to the jurisdiction
based on over-valuation or under-valuation can be raised
otherwise than in accordance with it. With reference to the
objections relating to territorial jurisdiction, Section 21 of the
Civil Procedure Code enacts that no objection to the place of
suing should be allowed by an appellate or revisional Court,
unless there was a consequent failure of justice. Subhash
Mahadevasa Habib vs Nemasa Ambasa Dharmadas (D)By Lrs,
(2007) 13 SCC 650
Page 20 of 401
Distinction between a decree passed by a Court having no

territorial or pecuniary jurisdiction and a decree passed by a
Court having no jurisdiction with regard to the subject
matter of a suit - The principles of estoppel, waiver and
acquiescence or even res judicata which are procedural in nature
would have no application in a case where an order has been
passed by the Tribunal/Court which has no authority in that
behalf. Any order passed by a Court without jurisdiction would
be coram non judice and, thus, being a nullity, the same
ordinarily should not be given effect to. A distinction must be
made between a decree passed by a Court which has no
territorial or pecuniary jurisdiction in the light of Section 21 of
the Code of Civil Procedure, and a decree passed by a Court
having no jurisdiction with regard to the subject matter of a suit.
Whereas in the former case, the appellate Court may not interfere
with the decree unless prejudice is shown, ordinarily the second
category of the cases would be interfered with, Hashan Abbas
Sayyad vs. Usman Abbas Sayyad, AIR 2007 SC 1077.
The objections when to be raised - When the stage of filing
written statement has been reached, then the only option
available to the defendants is to file their written statement
raising therein their objection regarding jurisdiction. There is no
other stage which gives a right to defendants to take out notice of
motion taking objection to jurisdiction. Such an objection can
only be raised in the written statement and if such an objection is
raised then the Court can at the time of framing of issues under
Order XIV of the CPC which empowers the Court to frame and
decide the issues relating to the jurisdiction of the Court or
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relating to bar to the suit created by the law for the time being in
force, frame it as a preliminary issue, B.S.I. Ltd. vs M. V.Critian-
C and Ors., AIR 1999 Bom. 320.
Bar on suit to set aside decree on objection as to place of
suing (Sect. 21A) — No suit shall lie challenging the validity of a
decree passed in a former suit between the same parties, or
between the parties under whom they or any of them claim,
litigating under the same title, on any ground based on an
objection as to the place of suing.
Explanation.—The expression ―former suit‖ means a suit which
has been decided prior to the decision in the suit in which the
validity of the decree is questioned, whether or not the previously
decided suit was instituted prior to the suit in which the validity
of such decree is questioned.
Scope: The above provisions completely bars a suit to set aside a
decree on the ground of absence of jurisdiction.
Go to Index
Page 22 of 401
(2) FORMAT OF PLAINT-

(I) As per Order VII Rule 1 a 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
As per Rule 16 of the JCCR, every petition or pleading shall
state concisely and clearly
(1) the facts, matters and circumstances upon which the
applicant relies;
(2) the matter of complaint, if any, and the relief sought or
prayer made.
(3) Age, category, contact number either of mobile or base
phone and e-mail address, if available, of each plaintiff and
Page 23 of 401
each of the defendant, if known to the plaintiff, shall be

mentioned in the cause title of the plaint. Similarly, the
defendants shall also furnish their age, category, contact
number either of mobile or base phone and e-mail address, if
available, on their appearance in statement of addresses,
filed along with the written statement.
Section 26(2) mandates that in every plaint, facts shall be proved
by affidavit. The requirement of affidavit has been introduced in
1999 following the 163rd Law Commission Report 1998. The Law
Commission was of the opinion that the proposed amendment to
Section 26 was salutary and may check the tendency to make
false averments in the pleadings. In this connection, the
Commission recalled the following observation of George Bernard
Shaw - ―the theory of legal procedure is, if you set two liars to
expose one another, truth will emerge.” The object of this
amendment requiring the plaint to be supported by affidavit is to
ensure that there should be an element of truth and sanctity in
the averments made in the plaint. In case of making false
pleading the party concerned can also be prosecuted for perjury.
Every pleading shall be signed by the party and his pleader
(if any) provided that where a party pleading is, by reason of
absence or for other good cause, unable to sign the pleading, it
may be signed by any person duly authorized by him to sign the
same or to sue or defend on his behalf.(Order 6 Rule14). Save as
otherwise provided by any law for the time being in force, every
pleading shall be verified at the foot by the party or by one of the
parties pleading or by some other person proved to the
satisfaction of the Court to be acquainted with the facts of the
Page 24 of 401
case. The person verifying shall specify, by reference to the

numbered paragraphs of the pleading, what he verifies of his own
knowledge and what he verifies upon information received and
believed to be true. The verification shall be signed by the person
making it and shall state the date on which and the place at
which it was signed. The person verifying the pleading shall also
furnish an affidavit in support of his pleadings.(Order 6 Rule15)
The affidavit required to be filed under amended Section
26(2) and Order VI Rule 15(4) of the Code has the effect of fixing
additional responsibility on the deponent as to the truth of the
facts stated in the pleadings. It is, however, made clear that such
an affidavit would not be evidence for the purpose of the trial.
Further, on amendment of the pleadings, a fresh affidavit shall
have to be filed in consonance thereof. Salem Advocate Bar
Association, T. N. vs Union of India, AIR 2005 SC 3353
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Page 25 of 401
II- Documents required along-with the plaint-(Order

VII Rule 14)
(1) Where a plaintiff sues upon a document in his possession or
power, he shall produce it in Court when the plaint is presented,
and shall at the same time deliver the document or a copy thereof
to be filed with the plaint.
(2) Where any such document is not in the possession or power
of the plaintiff, he shall, where possible, state in whose
possession or power it is.
(3) A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or to be entered in the list
to be added or annexed to the plaint but is not produced or
entered accordingly, shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this Rule shall apply to document produced for
the cross-examination of the plaintiff's witnesses, or, handed
over to a witness merely to refresh his memory.
Scope: It cannot be disputed that in terms of Order VII Rule 14,
where a plaintiff sues upon a document in his possession or
power in support of his claim, he shall enter such document in a
list, and shall produce it in Court when the plaint is presented by
him and shall, at the same time deliver the document and a copy
thereof to be filed with the plaint. Sub-Rule (3) of Rule 14 thereof
clearly provides that a document which ought to be produced in
Court by the plaintiff when the plaint is presented, or to be
entered in the list to be added or annexed to the plaint but is not
produced or entered accordingly, shall not, without the leave of
the Court, be received in evidence on his behalf at the hearing of
Page 26 of 401
the suit. Sub-Rule (4) thereof provides that nothing in the said
Rule shall apply to document produced for the cross-examination
of the plaintiff‘s witnesses, or, handed over to a witness merely to
refresh his memory. Similar is the provision under the sub-
clause (3) of Rule 1 of the Order XIII of the Code. Being so, it
cannot be disputed that if the plaintiff fails to mention the
documents in the list annexed to the plaint and to place on
record a copy of such document, which is required to be
produced under the law at the time of filing of the plaint, the
plaintiff is not entitled to produce any additional document
thereafter, without the leave of the Court. The contention that
such leave has necessarily to be obtained prior to the documents
being placed on record, cannot be found fault with. But, at the
same time, it is also to be noted that nothing prevents the
Court in its discretion to grant leave subsequent to the
documents being produced before the Court even though
such documents were not entered in the list annexed to the
plaint. It would depend upon the facts of each case.
Undoubtedly, the order of the Court in that regard will have to be
a speaking and reasoned order. Mohanraj Rupchand Jain v.
Kewalchand Hastimal Jain AIR 2007 Bombay 69.
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Page 27 of 401
(3) Parties to the suit-

(1) All persons may be joined in one suit as plaintiffs where-
(Order I Rule 1)
(a) any right to relief in respect of, or arising out of, the same
act or transaction or series of acts or transactions is alleged
to exist in such persons, whether jointly, severally or in the
alternative; and
(b) if such persons brought separate suits, any common
question of law or fact would arise.]
Scope: The scheme of Order 1 and Order 2 clearly shows that the
prescriptions therein are in the realm of procedure and not in the
realm of substantive law or rights. These Orders deal with
joinder of parties and joinder of cause of action to some extent.
The object of this provision is to avoid multiplicity of proceedings,
waste of time and needless expense of the parties. The Code
regards objections as to joinder of parties and frame of suit to be
procedural, which is further clear from Section 99 of the Civil
Procedure Code that no decree shall be reversed in appeal on
account of misjoinder of parties or cause of action unless a Court
finds that the non-joinder is of a necessary party. This is on the
same principle as of Section 21 which provides that even an
objection to territorial jurisdiction of a Court in which the suit is
instituted, is to be taken at the first instance and it has to be
shown that it has resulted in failure of justice.
― Act or Transaction‖ and ― Cause of Action‖
The expression ―act or transaction‖ used in this Section is more
comprehensive than the expression ―cause of action‖ used in old
Page 28 of 401
Section, for the same act or transaction may give rise to different
cause of action, as when several persons are injured by the same
act of negligence on the part of the railway company.
Plaintiff having Different Interests
A succeeds to B's estate by inheritance and assigns a portion
thereof to C. D is in possession of the estate and disputes A's
right of succession to it. A and C may under the present Rule,
jointly sue D for the possession of the property of the portion of
the estate to which they are entitled if the ground on which the
relief is claimed is common to all the plaintiffs. It does not matter
that the claim was made by A on the basis of inheritance and C
on the basis of assignment. Thus such persons may be joined in
a suit even if their interests are different.
Severally
The word severally in this Rule indicates an involvement of
some common questions of law or of fact, and not the identity
of interest or of the cause of action. Where a right to relief in
respect of the same act or transaction is alleged to exist in two or
more persons severally, they may join as plaintiff in one suit
or they may at their option bring separate suits. This Rule
does not necessitate one suit. Where the debts of several
creditors to the same person are specified separately in an
agreement relating to such debts and the agreement is jointly
executed by the creditors, though each is to take his share, a
separate suit by each creditor is maintainable.
Thus, when three pieces of land are mortgaged by three different
persons in favour of a mortgagee, a single suit by the heirs of all
Page 29 of 401
the three mortgagee is maintainable--- Shukar Hanan Mutawali v.

Malkappa, 1979 SCC OnLine Bom 207: AIR 1980 Bomb 213
A contract was with several promisees and a suit was filed
by only some of the promisees, arraying the promisees who had
refused to join as co-plaintiffs. The suit was held to be
maintainable.
Where two or more persons are jointly entitled to the same
relief in respect of a transaction, they must join as plaintiffs in
one suit as they represent a single and indivisible right which
cannot be adjudicated upon in the absence of any such persons.
Thus if A,B and C are joint owners of a property they must
be joined together in a suit for recovery of the property. Thus, in
a suit for recovery of a joint family property all the members
should be joined together for the recovery of the property. Where,
however when he sues or is sued as a manager of the joint
family, it might not be necessary to add the other members as
parties.
However, in a suit for recovery of suit property from
trespasser, the members need not be joined as plaintiffs. In a suit
for recovery of a trust property, all the members should be joined
together.
The object of this Rule is to avoid multiplicity of suits and where
the cause of action arises out of the act or transactions, the
Court should consolidate the cause of action in one suit.
Consolidation of Suit
The Hon‘ble Apex Court in Prem Lata Nahata vs. Chandi Prasad
Sikaria, AIR 2007 SC 1247, (2007) 2 SCC 551 has observed
Page 30 of 401
The Court has power to consolidate suits in appropriate cases.

Consolidation is a process by which two or more causes or
matters are by order of the Court combined or united and treated
as one cause or matter. The main purpose of consolidation is
therefore to save costs, time and effort and to make the conduct
of several actions more convenient by treating them as one
action. The jurisdiction to consolidate arises where there are two
or more matters or causes pending in the Court and it appears to
the Court that some common question of law or fact arises in
both or all the suits or that the rights to relief claimed in the
suits are in respect of or arise out of the same transaction or
series of transactions; or that for some other reason it is
desirable to make an order consolidating the suits. (See
Halsbury’s Laws of England, Volume 37, paragraph 69). If there is
power in the Court to consolidate different suits on the basis that
it should be desirable to make an order consolidating them or on
the basis that some common questions of law or fact arise for
decision in them, it cannot certainly be postulated that the trying
of a suit defective for misjoinder of parties or causes of action is
something that is barred by law. The power to consolidate
recognized in the Court obviously gives rise to the position that
mere misjoinder of parties or causes of action is not something
that creates an obstruction even at the threshold for the
entertaining of the suit.
The ratio of the above ruling can be practicably used in land
acquisition cases or in such cases where the relief claimed is
based on the same cause of action. For example in motor
accident claim cases where different claim cases have been
Page 31 of 401
preferred by the victims arising of the same accident, then

principle of consolidation can be applied.
(2) All persons may be joined in one suit as defendants where-
(Order I Rule 3)
(a) any right to relief in respect of, or arising out of, the same
act or transaction or series of acts or transactions is alleged
to exist against such persons, whether jointly, severally or in
the alternative; and
(b) if separate suits were brought against such persons, any
common question of law or fact would arise.
Scope: This Rule contains a provision as to joinder of
defendants. It assumes the existence of a suit in a proper
forum i.e. in the Court having jurisdiction to try the suit. In
order that a party may be impleaded in a suit as a defendant
the party should have a legal interest in the subject-matter of
the litigation i.e. an interest which the law recognises. A
person who may be indirectly or commercially affected by the
litigation cannot be impleaded.
Transferee pendente lite-- Ordinarily transferee pendent lite
without permission of the Court cannot be impleaded as parties.-
-Bibi Zubaida Khatoon vs. Nabi Hussain Sahab (2004)1 SCC 191
Order 2 Rule 3 regarding joinder of cause of action and Order 1
Rule 3 need to be read together because joinder of parties also
involves the joinder of cause of action. The principle is that a
person is made a party because there is a cause of action against
him and when the cause of action are joined, the parties are also
joined.
Page 32 of 401
The plaintiff is dominus litus having domain in his suit. He has a

right and the prerogative to choose and implead defendants in a
suit. The condition precedent is that the Court must be satisfied
that the presence of the party would be necessary to effectually
and completely adjudicate upon and settle all questions in the
dispute. In order to implead a defendant in a suit, it is necessary
that the party has a legal interest in the suit as distinguished
from mere equitable interest in the matter. A person who may be
indirectly or commercially affected by the result of the suit need
not be impleaded. Where in a suit there are two or more
defendants and two or more cause of action, the suit will be bad
for misjoinder of defendants and cause of action, if different
cause of action are joined separately against defendants. Such a
misjoinder is called multifariousness.
Question: In a suit for declaration that the plaintiff is the
owner of the house and for cancellation of the sale deed
executed by the defendant, with respect to a portion of the
house claimed by the plaintiff to have obtained it on family
settlement, whether the other co-sharers need to be
impleaded as party?
Ans: No. This is because the suit is not filed for partition of
shares, but only with respect to cancellation of the sale deed
executed by the other co-sharer Lakhsmi Narayan vs The District
Judge 1992(1)CCC 591 (All)
Bihar Scheduled Area Regulation, 1969 has amended Order 1,
Rule 3 of the C. P. C. by adding a proviso which has already been
quoted above. The Deputy Commissioner, therefore, is a
necessary party in all suits whether for declaration of title or for
Page 33 of 401
confirmation of possession of immovable property of a member of

the Scheduled Tribe. Jutani Devi alias Rupa Loharin vs Gangau
Singh, 1992 2 PLJR 375; 1992 0 Supreme(Pat) 119;
(3) One person may sue or defend on behalf of all in same
interest.-(Order I Rule 8)
(1) Where there are numerous persons having the same interest in
one suit,-
(a) one or more of such persons may, with the permission of the
Court, sue or be sued, or may defend such suit, on behalf of, or
for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue
or be sued, or may defend such suit, on behalf of, or for the
benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction
is given under sub-Rule (1), at the plaintiff's expense, give notice
of the institution of the suit to all persons so interested either by
personal service, or, where, by reason of the number of persons
or any other cause, such service is not reasonably practicable, by
public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is
instituted or defended, under sub-Rule (1), may apply to the
Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned
under sub-Rule (1), and no such suit shall be withdrawn under
sub-Rule (3), of Rule 1 of Order XXIII, and no agreement,
compromise or satisfaction shall be recorded in any such suit
under Rule 3 of that Order, unless the Court has given, at the
Page 34 of 401
plaintiff's expense, notice to all persons so interested in the

manner specified in sub-Rule (2).
(5) Where any person suing or defending in any such suit does
not proceed with due diligence in the suit or defence, the Court
may substitute in his place any other person having the same
interest in the suit.
(6) A decree passed in a suit under this Rule shall be binding on
all persons on whose behalf, or for whose benefit, the suit is
instituted, or defended, as the case may be.
Explanation.-For the purpose of determining whether the
persons who sue or are sued, or defend, have the same interest
in one suit, it is not necessary to establish that such persons
have the same cause of action as the person on whom behalf, or
for whose benefit, they sue or are sued, or defend the suit, as the
case may be.
Scope: Order 1 Rule 8 One or more of such person may, with
the permission of the Court sue or be sued, or may defend
such suit, on behalf of, or benefit of all persons so interested.
a. The Court may direct one or more of such persons to sue or
to be sued, or to defend such suit , on behalf of , or for benefit
of all such persons interested.
b. No such party suing or defending the suit on behalf of others
can withdraw or abandon any part of claim in any
compromise unless the Court has given, at plaintiff's expense
notice to all parties interested.
c. The existence of community of interest among persons on
whose behalf or against whom the suit is instituted is the
condition precedent for application of this Rule. In order that
Page 35 of 401
Order 1 Rule 8 may be invoked it is not necessary that the

cause of action must be the same, what is required is that the
parties should have the same interest in the suit that is,
i. common interest;
ii. common grievance.
d. The proper course under Rule 8 is to obtain permission before

the suit is instituted, but if that is not done, the Rule does not
forbid leave being granted even after the institution of the suit.
e. Notice of suit- where a person sues, or is sued, or defends, a
suit on behalf of himself and others, any decree that may be
passed in the suit is binding upon them all (Section 11
Explanation VI), unless the decree has been obtained by fraud
or collusion (Section 44, The Evidence Act). It is , therefore
necessary that the notice of the suit should be given to all the
parties who would be bound by the decree. It is the duty of the
Court to cause service of the notice or an advertisement to be
published.
f. When the plaintiff sues or the defendant is sued on behalf of
himself and others the fact should be stated in the title of the
suit, and not merely in the plaint.
g. Where a plaintiff on record neglects to execute the decree
passed in a suit brought under this Rule, the Court may add
other persons having the same interest as plaintiffs to enable
them to execute the decree.
h. The provisions of this Rule apply only if:
i. the parties are numerous,
ii. they have the same interest,
Page 36 of 401
iii. the necessary permission is obtained- the necessary
permission of the Court is mandatory

iv. notice given
i. When a representative suit is brought under this Rule, the

person or persons appointed to conduct it are the only
necessary party/parties. The others need not be shown as
parties and if one of these others dies, the suit does not abate.
Even if one of the persons permitted to conduct the
representative suit dies, fresh proceedings need not be taken
to bring on record other members of the public as
representatives of the public and the persons whom the
deceased represented will still be interested in the litigation
and can be held to be constructive parties to the suit. If one of
the persons appointed to conduct the suit dies any other may
apply within the time prescribed under Article 81 of the
Limitation Act to conduct the suit.
j. A representative suit affects the right of other persons not
present in the Court and therefore, a duty is cast on the Court
to follow meticulously the procedure as laid down by Order 1
Rule 8 and the provisions under it are to be treated as
mandatory.
k. When a plaint contains an averment that the plaintiffs are
filing the suit in representative capacity and later an
application under Order 1, Rule 8 is made, the Court may
either grant a conditional permission subject to objection
being made by the parties to whom notice is issued or may
immediately issue notice without granting a conditional
Page 37 of 401
permission. After the notice is served, the Court must after

disposing of the objections, if any, pass the final order
granting or refusing permission.
l. Absence of express leave under the Rule—Notwithstanding the
failure of a Court to pass an order under Order 1, Rule 8 the
Court shall assume such permission being granted to the
parties, where the Court has directed publication.--
Kamalakshi v. Bahulayan, 1971 SCC OnLine Ker 18 : AIR
1972 Ker 269
Page 38 of 401
(4) Mis-joinder and non-joinder.
No suit shall be defeated by reason of the misjoinder or

nonjoinder of parties, and the Court may in every suit deal with
the matter in controversy so far as regards the rights and
interests of the parties actually before it:
Provided that nothing in this Rule shall apply to non-joinder of a
necessary party.(Order I Rule 9)
 All objections on the ground of non-joiner or mis-joinder of
parties shall be taken at the earliest possible opportunity
and, in all cases where issue are settled, at or before such
settlement, unless the ground of objection has subsequently
arisen, and any such objection not so taken shall be deemed
to have been waived.(Order I Rule 13)
Scope - Though Rule 9 of the Order I of C.P.C. mandates that no
suit shall be defeated by reason of the misjoinder or non-joinder
of parties, it is important to notice that the proviso thereto
clarifies that nothing in that Rule shall apply to non-joinder of a
necessary party. Therefore, care must be taken to ensure that the
necessary party is before the Court, be it a plaintiff or a
defendant, otherwise, the suit or the proceedings will fail. Rule 10
of Order I, C.P.C. provides remedy when a suit is filed in the
name of wrong plaintiff and empowers the Court to strike out any
party improperly joined or to implead a necessary party at any
stage of the proceedings. Chief Conservation of Forests, Govt. of
A.P. v. Collector, AIR 2003 SC 1805 : 2003(3)SCC 472
A suit will be defeated if necessary parties are not joined as no
effective decree can be passed in the absence of such parties,
Page 39 of 401
when the real cause of action is against the omitted parties,

Taseruddin Sarkar and others Versus Salimuddin Seikh and
others , AIR 1972 Gauhati 71.
A perpetual lease had been executed for a plot of land between an
Educational Society and the State Government for the
establishment of a college. The Principal of the college, acted on
behalf of the Society. Eviction orders were passed against the
petitioners against which writ petition was filed. It was held in
the writ petition, that the Society was not a necessary party. In
view of the clear mandate of Order 1, Rule 9 of the Code, the
objection of the learned counsel for the said college is
misconceived. Apart from that, the provisions of Order 1, Rule 13
of the Code also makes it clear that all objections on the ground
on non-joinder or mis-joinder of parties must be taken at the
earliest possible opportunity before settlement of issues and any
such objection not so taken shall be deemed to have been waived.
It is clear that in the case the so-called objection has been taken
at the belated stage at the time of hearing of the matter. It does
not appear that any objection was taken at the admission stage
or even in the counter-affidavit. Therefore, the said objection
cannot be entertained by the Court, in view of the clear
provisions of the Code. M/s. Hindustan Petroleum Corporation
Ltd. v. State of Bihar & Ors., AIR 1996 Patna 163
Dismissal of suit on failure to implead all persons interested

- In a suit for partition all the persons interested in the property
should be impleaded as parties. No doubt this Rule provides that
no suit shall be defeated by reason of the mis-joinder of parties,
Page 40 of 401
and the Court may, in every suit deal with the matter in
controversy so far as regards the rights and interests of the
parties actually before it. Notwithstanding this position, the
Court will be justified in dismissing the suit if the necessary
parties are not impleaded. T Panchapakesan v. Peria Thambi
Naicker, (1972) 2 MLJ 590
Go to Index
Page 41 of 401
(5) Valuation of suit & Proper Court fee -

The Court Fees in a suit is paid on the basis of the relief claimed.
Under Section 7(4)(c) of the Court Fees Act 1870 for a relief for
declaration and consequential relief ad valorem Court fees, i.e as
per the value of the suit property is to be paid. In other cases
where consequential relief has not been prayed, only a fixed
Court fees as provided under Article 17 of Schedule II is to be
paid. For example the Court fees applicable in case of a suit
where declaratory relief is claimed the fixed Court fee of Rs 250
shall be applicable. However, in case where a consequential relief
of recovery of possession is prayed, the Court fee shall be paid as
per the value of the suit declared by the plaintiff in the plaint.
The relevant paragraph of the plaint expressly mentions that the
valuation of the suit has been made for the purpose of the
jurisdiction and applicable Court fee.
There is a difference in application of the Suit Valuation Act
1887 and the Court Fees Act 1870. While the former Act is
applied for determining the valuation of the suit property, the
latter determines the Court fees on the basis of the valuation of
suit.
Section 3 of the Suit Valuation Act- Power of the State
Government to make Rules determining value of land for
jurisdictional purposes-
(1) The State Government may make Rules for determining the
value of land for purposes of jurisdiction in the suits mentioned
in the Court-fees Act, 1870 (7 of 1870), Section 7, paragraphs v
and vi and paragraph x, clause (d).
Page 42 of 401
(2) The Rules may determine the value of any class of land, or of
any interest in land, in the whole or any part of a local area, and
may prescribe different values for different places within the
same local area.
Section 4 Valuation of relief in certain suits relating to land
not to exceed the value of the land-
Where a suit mentioned in the Court-fees Act, 1870 (7 of 1870),
Section 7 paragraph iv, or Schedule II, article 17, relates to land
or an interest in land of which the value has been determined by
Rules under the last foregoing Section, the amount at which for
purposes of jurisdiction the relief sought in the suit is valued
shall not exceed the value of the land or interest as determined
by those Rules.
Section8 Suit Valuation Act-- Court-fee value and

jurisdictional value to be the same in certain suits-
Where in suits other than those referred to in the Court-fees Act,
1870 (7 of 1870), Section 7, paragraphs v, vi and ix, and
paragraph x, clause (d), Court-fees are payable ad-valorem under
the Court-fees Act, 1870, the value as determinable for the
computation of Court-fees and the value for purposes of
jurisdiction shall be the same.
Scope: The valuation of a suit for the purpose of Court fee and
the valuation of the suit for the purpose of jurisdiction are two
different things. The jurisdiction of a Court depends upon the
valuation of the suit. The valuation of the suit for the purpose of
assessing the Court fee payable is determined on the basis of
certain Rules. In a case where fixed Court fee is payable the
Page 43 of 401
valuation of suit for purpose of Court fees is not very relevant but
it is necessary for the plaintiff to disclose the value of the subject
matter of the suit for the purpose of jurisdiction. However, there
is exception to this general rule in as much as those suits which
fall under some of the provisions of Section 7 of the Court Fees
Act, the valuation of the suit for the purpose of Court Fees and
jurisdiction shall be the same. This has been specified in Section
8 of the Suit Valuation Act.
Question: How the Court fees payable in a suit is assessed?
Answer: In order to understand the scheme for assessment of
Court fee payable in a suit or appeal it will be necessary to
understand the relation between The Suit Valuation Act 1887
and the Court Fees Act 1870.
The Suit Valuation Act 1887 is an Act to prescribe the
mode of valuing certain suits for the purpose of determining the
jurisdiction of Court with respect thereto. Part I of the Act
empowers the State Governments to make Rules for determining
the value of the land for the purposes of jurisdiction in certain
classes of suits and Part II declares that in suits not coming
within paragraphs V,VI, IX and X, clause (d) of Section 7 of the
Court Fees Act, the value as determinable for the computation of
Court Fee and the value for the purpose of jurisdiction shall be
the same. In these cases mentioned in paragraphs V,VI, IX and X
, clause (d) of Section 7 of the Court Fees Act, the suit valuation
shall be made as per the market value of the suit property .
Page 44 of 401
Court Fees
Fixed Court fee is chargeable as per Schedule II of the Court
Fees Act. In other cases the Court fee is charged as per the
valuation of suit.
For determining the jurisdiction of a suit, in case of fixed
Court fee the jurisdiction shall be according to the valuation of
suit as disclosed in the plaint.
In cases where the ad valorem Court fee is chargeable, the
jurisdiction shall be determined as per the Suit Valuation Act.
The value of the suit for the purpose of payment of Court fee is to
be determined first and then such value is to be adopted to
determine jurisdiction.
Ram Pravesh Singh vs Maneshwari Prasad Narain Deo, AIR 1958
(Pat) 129; 1957 0 BLJR 698; 1957 0 Supreme (Pat) 196,
The plaintiff/respondent in a proceeding before the Public
Demand Recovery Act raised objection at the sale price of Rs
550/- on the plea that its real value was Rs 60,000/- This
objection was not allowed and consequently he filed a suit for
cancellation of sale deed in which the suit was valued at Rs
550/-- The defendant objected the valuation on the ground that
the plaintiff himself had earlier state the value to be Rs 60,000/-.
The Hon‘ble Supreme Court held that the valuation was
challenged by the petitioner and though he himself in his written
statement did not give his own value, but relied on the statement
of the plaintiff himself in a previous application made by him for
stay or delivery of possession. In that application the value of the
property sold was given at Rs. 60,000. In this case it was
conceded on behalf of the petitioner that no ad valorem Court-fee
Page 45 of 401
was payable and that the Court-fee paid was sufficient. The
Court below, therefore, held that it was a pure declaratory suit
and the Court-fee paid for declaration under Schedule 2. Article
17(iii) of the Court Fees Act was sufficient. No objection had been
raised in this regard in the revisional application filed in the
Supreme Court. The only point that had been taken in the
petition of revision is about the valuation. It is contended that the
valuation of the property, which had been sold in a certificate
sale under the Public Demands Recovery Act, was beyond the
jurisdiction of the Court. The only point, therefore, that had to be
determined in the present application was as to what should be
the valuation, for the purpose of jurisdiction, in pure declaratory
suit Sec.3 of the Suits Valuation Act provides for Rules to be
made by the Provincial Government for determining the value of
land for purposes of jurisdiction in the suits mentioned in the
Court Fees Act, 1870, Section 7, paras, (v) and (vi) and para, (x),
Clause (d). Section 4 says that where a suit mentioned in the
Court Fees Act, 1870, Section 7, para. (iv) or Schedule II, Article
17, relates to land or an interest in land of which the value has
been determined by Rules under the last foregoing Section, the
amount at which for purposes of jurisdiction the relief sought in
the suit is valued shall not exceed the value of the land or
interest as determined by those Rules. Unfortunately no Rule has
been framed by the State Government in this regard. Section 8 of
the Suit valuation act lays down that where in suits other than
those referred to in the Court Fees Act, 1870, Section 7, paras.
(v), (vi) and (ix) and para (x), Clause (d), Court-fees are payable ad
valorem under the Court Fees Act, 1870, the value as
Page 46 of 401
determinable for the computation of Court-fees and the value for

purposes of jurisdiction shall be the same. Since, however, in the
present case Court-fee is not payable ad valorem, this Section
has no application. Section 9 provides for making of Rules by the
High Court with the previous sanction of the Provincial
Government for determining the valuation for the purpose of
jurisdiction in suits other than suits mentioned in the Court Fees
Act, 1870, in Section 7, paras, (v) and (vi) and para. (x), Clause
(d). There is no other provision in the Suits Valuation Act for
determining the valuation of a pure declaratory suit. That being
the position, the valuation in such a suit may have to be
determined under the general principle of law. It appears that the
subject-matter of the declaration is the certificate sale held
under the provisions of the Public Demands Recovery Act, which
is sought to be declared to be void. The value of the certificate
sale will, therefore, be the value of the suit for the purpose of
jurisdiction. The question is what should be the value of sale.
Obviously it cannot be the value of the land which has been sold.
In my opinion its value will be the price for which it was held.
That being the position, the value fixed in the present case at Rs.
550, as being the price of the certificate sale is the correct value
for the purpose of jurisdiction.
Section 6 of the Court Fees Act- Fees on documents filed, etc.,
in Mofussil Courts or in public offices.--- Except in the Courts
herein before mentioned, no document of any of the kinds
specified as chargeable in the First or Second Schedule to this
Act annexed shall be filed, exhibited or recorded in any Court of
Justice, or shall be received or furnished by any public officer,
Page 47 of 401
unless in respect of such document there be paid a fee of an

amount not less than that indicated by either of the said
Schedules as the proper fee for such document.
In a case Netramani Dibya v. Dasarathi Misra, 1985 SCC OnLine
Ori 87 : AIR 1986 Ori 235 it has been held that while exercising
the inherent powers the Court should apply Section 6 as Court
fee has to be paid on the documents received by the Court. For
this purpose the Court may afford an opportunity to the party to
pay such Court-fee.
Sec 7. Computation of fees payable in certain suits.-
The amount of fee payable under this Act in the suits next
hereinafter mentioned shall be computed as follows :-
for money.-
(i) In suits for money (including suits for damages or
compensation, or arrears of maintenance, of annuities, or of
other sums payable periodically)- according to the amount
claimed;
for maintenance and annuities.-
(ii) In suits for maintenance and annuities or other sums payable
periodically-according to the value of the subject matter of the
suit, and such value shall be deemed to be ten times the amount
claimed to be payable for one year; for other movable property
having a market-value.
(iii) In suits for movable property other than money, where the
subject-matter has a market value -according to such value at
the date of presenting the plaint;
(iv) In suits for movable property of no market-value.-
Page 48 of 401
(a) for movable property where the subject-matter has no

market-value, as, for instance, in the case of documents relating
to title, to enforce a right to share in joint family property.-
(b) to enforce the right to share in any property on the
ground that it is joint family property, for a declaratory decree
and consequential relief.-
(c) to obtain a declaratory decree or order, where
consequential relief is prayed, for an injunction.-
(d) to obtain an injunction, for easements.-
(e) for a right to some benefit (not herein otherwise provided
for) to arise out of land, and for accounts.-
(f) for accounts according to the amount at which the relief
sought is valued in the plaint or memorandum of appeal. In all
such suits the plaintiff shall state the amount at which he values
the relief sought [ ];
for possession of land, houses and gardens.-
(v) In suits for the possession of land, houses and gardens-
according to the value of the subject-matter; and such value
shall be deemed to be where the subject-matter is land, and-
(a) where the land forms an entire estate, or a definite share of an
estate, paying annual revenue to Government, or forms part of
such an estate and is recorded in the Collector's register as
separately assessed with such revenue; and such revenue is
permanently settled-ten times the revenue so payable;
(b) where the land forms an entire estate, or a definite share of an
estate, paying annual revenue to Government, or forms part of
such estate and is recorded as aforesaid; and such revenue is
settled, but not permanently-five times the revenue so payable;
Page 49 of 401
(c) where the land pays no such revenue, or has been partially
exempted from such payment, or is charged with any fixed
payment in lieu of such revenue, and net profits have arisen from
the land during the year next before the date of presenting the
plaint fifteen times such net profits; but where no such net
profits have arisen there from-the amount at which the Court
shall estimate the land with reference to the value of similar land
in the neighborhood;
(d) where the land forms part of an estate paying revenue to
Government, but is not a definite share of such estate and is not
separately assessed as above mentioned- the market-value of
the land; Proviso as to Bombay Presidency.-Provided that, in the
territories subject to the Governor of Bombay in Council, the
value of the land shall be deemed to be-
(1) where the land is held on settlement for a period not
exceeding thirty years and pays the full assessment to
Government-a sum equal to five times the survey assessment;
(2) where the land is held on a permanent settlement, or on a
settlement for any period exceeding thirty years, and pays the full
assessment to Government-a sum equal to ten times the survey
assessment; and
(3) where the whole or any part of the annual survey-assessment
is remitted-sum computed under paragraph (1) or paragraph (2)
of this proviso, as the case may be, in addition to ten times the
assessment, or the portion of assessment, so remitted.
Explanation.-The word "estate", as used in this paragraph,
means any land subject to the payment of revenue, for which the
proprietor or a farmer or ryot shall have executed a separate
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engagement to Government, or which, in the absence of such

engagement, shall have been separately assessed with revenue;
for houses and gardens.-
(e) where the subject-matter is a house or garden-according to
the market-value of the house or garden; to enforce a right of pre-
emption.-
(vi) In suits to enforce a right of preemption-according to the
value [computed in accordance with paragraph (v) of this Section]
of the land, house or garden in respect of which the right is
claimed; for interest of assignee of land-revenue.-
(vii) In suits for the interest of an assignee of land-revenue-fifteen
times his net profits as such for the year next before the date of.
presenting the plaint; to set aside an attachment.-
(viii) In suits to set aside an attachment of land or of an interest
in land or revenue-according to the amount for which the land or
interest was attached: Provided that, where such amount exceeds
the value of the land or interest, the amount of fee shall be
computed as if the suit were for the possession of such land or
interest; to redeem.-
(ix) In suits against a mortgagee for the recovery of the property
mortgaged, to foreclose.-and in suits by a mortgagee to foreclose
the mortgage, or, where the mortgage is made by conditional sale,
to have the sale declared absolute according to the principal
money expressed to be secured by the instrument of mortgage;
for specific performance.-
(x) In suits for specific performance-
(a) of a contract of sale-according to the amount of the
consideration;
Page 51 of 401
(b) of a contract of mortgage-according to the amount agreed to

be secured;
(c) of a contract of lease according to the aggregate amount of the
fine or premium (if any) and of the rent agreed to be paid during
the first year of the term;
(d) of an award-according to the amount or value of the property
in dispute; between landlord and tenant.-
(xi) In the following suits between landlord and tenant:-
(a) for the delivery by a tenant of the counterpart of lease,
(b) to enhance the rent of a tenant having a right of occupancy,
(c) for the delivery by a landlord of a lease,
(cc) for the recovery of immoveable property from a tenant,
including a tenant holding over after the determination of a
tenancy,
(d) to contest a notice of ejectment.
(e) to recover the occupancy of immoveable property from which a
tenant has been illegally ejected by the landlord, and
(f) for abatement of rent according to the amount of the rent of
the immoveable property to which the suit refers, payable for the
year next before the date of presenting the plaint.
Case law
That in a suit for declaration with consequential relief falling
under Section 7(iv)(c) of the Court-Fees Act, 1870, the plaintiff is
free to make his own estimation of the reliefs sought in the plaint
and such valuation both for the purposes of Court fee and
jurisdiction has to be ordinarily accepted. It is only in cases
where it appears to the Court on a consideration of the facts and
circumstances of the case that the valuation is arbitrary,
Page 52 of 401
unreasonable and the plaint has been demonstratively

undervalued, the Court can examine the valuation and can revise
the same. But the defendant has no right to raise such objection
nor the Court should delve into the matter after filing of written
statement on evidence. The law on this aspect, thus, should be
taken to be as under:
(1) Where the question of Court fee is linked with jurisdiction a
defendant has a right to raise objection and the Court should
decide it as a preliminary issue.
(2) But in those cases where the suit is filed in Court of unlimited
jurisdiction the valuation disclosed by the plaintiff or payment of
amount of Court fee on relief claimed in plaint or memorandum
of appeal should be taken as correct.
(3) This does not preclude the Court even in suits filed in Courts
of unlimited jurisdiction from examining if the valuation, on
averments in plaint, is arbitrary. Sujir Keshav Nayak vs Sujir
Ganesh Nayak, AIR 1992 SC 1526, 1992 1 SCC 731
(i) In general the Court-fee has to be decided on the basis of the
subject-matter of the suit and the appeal arising therefrom. It
shall not be substantially affected by the claim as set out in the
relief by the plaintiff; In Re. Thirupathiammal, AIR 1956 Mad
179.
(ii) It has been held that the question of Court-fee must be
decided having regard to the averments made in the plaint itself
and the contentions raised in the written statement or the final
decision on merits cannot affect the same; Sathappa Chettiar v.
Ramanathan Chettiar, AIR 1958 SC 245.
Page 53 of 401
(iii) It has been held that when the plaintiff paid ad valorem
Court-fee in a suit for recovery of a specific calculated amount as
damages on account of leakage of cooking gas cylinder leading to
accident the valuation was correct;--- The suit was found to be
correctly valued for the purposes of Court fee and jurisdiction
under Section 7(I) of the Court fees Act. - Bhagwant Sarup v.
Himalay Gas Co., AIR 1985 HP 41.
(iv) It has been held that in a suit for partition the share claimed
by the plaintiff would determine the Court-fee and not the
property as a whole; Rakesh Chandra Das v. Khan Bahadur
Abdul Majid Choudhary, AIR 1982 Gau 82.
(v) The Hon‘ble Supreme Court has clearly held in AIR 1958 SC
245that ordinarily the valuation stated by the plaintiff should be
accepted in cases falling under S. 7(iv)(b) and (c) of the Act. If it is
read along with the other sentences in the judgment, then it is
clear that the valuation given by the plaintiff in a case falling
under Section 7(iv)(b) or (c) shall have to be accepted by the Cost;
Kesho Mahton v. Ayodhya Mahton, AIR 1983 Pat 67.
(vi) It has been held that Section 7(iv)(f) is applicable to a suit for
dissolution of partnership at will and rendition of accounts in as
much as it is a suit for accounts and value for jurisdiction and
Court-fee is the same ad valorem Court-fee to be paid under
Section 7; Madan Mohan Sharma v. Uttam Singh Bagga, AIR
1985 J&K 87.
(vii) The Code of Civil Procedure empowers the Court to make up
deficiency of Court-fees and under Order VII Rule 11 it is
provided that the plaint shall be rejected where the relief claimed
Page 54 of 401
is undervalued, and the plaintiff on being required by the Court

to correct the valuation within a time to be fixed by the Court
fails to do so. It has been held in such cases where the valuation
made by the plaintiff in respect of the suit property is
unreasonable and arbitrary the Court can exercise its powers
vested in it under Order VII Rule 11Civil Procedure Code; Mana
Das v. Kisto Das, AIR 1983 Pat 272.
(viii) The Delhi High Court has held that if plaintiff files a suit for
declarations and injunctions and the reliefs claimed are wholly
independent of each other then the suit is not governed by
Section 7(iv)(c); S.C. Malik v. Surender Nath Puri, 1991 RLR
(N0TE) 85.
(ix) It has been held that the words 'subject-matter' used in the
Section include relief or reliefs; Md. Hafiz v. Mustt Noorjahan,
AIR 1989 Gau 13
(x) It has been held that in a single suit for recovery filed by a
Bank against the defendant borrower pertaining to separate
accounts in its different branches Court-fee has to be paid on
each of the account separately; Bank of India v. Vinod Kumar
Bhalla, AIR 1988 Del 79.
(xi) It has been held that paragraph (iv) of Section 7 of the Act
gives a right to the plaintiff in any of the suits mentioned in the
clauses of that paragraph to place any valuation that he likes on
the reliefs he seeks, subject, however to any Rules made under
Section 9 of the Suit Valuation Act and the Court has no power to
interfere with the plaintiff s valuation; Commercial Aviation &
Travel Co. v. Vimal Pannalal, AIR 1988 SC 1636.
Page 55 of 401
(XII) Court fees in partition cases: Section 7 (IV) (b)-A suit to

enforce a right to share in a joint family property is different from
a suit where a share in the joint family property is claimed. This
clause is applicable specifically to a suit where enforcement of
right to share in the joint family property is claimed. The
provision of this clause cannot apply to a suit for partition by a
member of a joint family who is in joint possession of the
property. It is therefore clear that a suit for partition where the
plaintiff is in possession and the only question is his right to
change the mode of enjoyment falls under Article 17 Schedule II
(ie fixed Court fees) of the Court Fees Act and not under this
clause.
The necessary ingredient to attract the provisions of this
clause is that the plaintiff should seek to enforce a right to share
in the property on the ground that it is a joint family property.
The expression ―to enforce right to share in any properly‖ used in
this clause means to enforce a right to share in a property which
stands in the name of others including the strangers.
Go to Index
Page 56 of 401
(6) When a suit is barred by law of limitation or any

other law-
Subject to the provisions contained in Sections 4 to 24 (inclusive)
of Limitation Act, every suit instituted, appeal preferred, and
application made after the prescribed period shall be dismissed,
although limitation has not been set up as a defence.
Scope: The suits of which their cognizance is either
expressly or impliedly barred - The question whether the words
―barred by law‖ occurring in Order VII Rule 11(d) CPC would also
include the ground that it is barred by law of limitation has been
considered by a two Judge Bench of the Hon‘ble Supreme Court
(Balasaria Construction Pvt. Ltd. vs. Hanuman Seva Trust 2006
(5) SCC 658 decided on 8.11.2005 and it has been held :- ―After
hearing counsel for the parties, going through the plaint,
application under Order 7 Rule 11(d) CPC and the judgments of
the trial Court and the High Court, we are of the opinion that the
present suit could not be dismissed as barred by limitation
without proper pleadings, framing of an issue of limitation and
taking of evidence. Question of limitation is a mixed question of
law and fact. Ex facie in the present case on the reading of the
paint it cannot be held that the suit is barred by time.‖ This ratio
has been followed in Ramesh B. Desai v. Bapin Vadilal Mehta,
AIR 2006 SC 3672.
Go to Index
Page 57 of 401
(7) If the suit by or against minor or under disability,

provisions under Order 32 C.P.C read with Sec.146
have to be complied with-
1. Minor to sue by next friend—Every suit by a minor shall be
instituted in his name by a person who in such suit shall be
called the next friend of the minor.
Where a suit is instituted by or on behalf of a minor without a
next friend, the defendant may apply to have the plaint taken off
the file, with costs to be paid by the pleader or other person by
whom it was presented.
Notice of such application shall be given to such plaintiff, and
the Court, after hearing his objections (if any) may make such
order in the matter as it thinks fit.
In the event the suit has been filed by a minor without the
procedure as above mentioned, the Court may reject the plaint
under Order 7 Rule 11(d).
Rule 3 further provides that the Guardian for the suit to be
appointed by Court for minor defendant by the Court, on being
satisfied of the fact of his minority,
(2) An order for the appointment of a guardian for the suit may be
obtained upon application in the name and on behalf of the
minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying
the fact that the proposed guardian has no interest in the
matters in controversy in the suit adverse to that of the minor
and that he is a fit person to be so appointed.
(4) No order of appointment of guardian of a minor defendant
shall be made on any application under this Rule except upon
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notice to any guardian of such minor. Further such notice may

also be issued to the minor defendant also.
Scope - Suit filed on behalf of the minor by mother as next
friend. The suit filed by mother will be maintainable and it
cannot be said that the mother should wait and see if father was
ready to plead on behalf of the minor or not. Gitanjali Mishra v.
Gangadhar Upadhyay, 1996 SCC OnLine Ori 55 : AIR 1997 Ori
88
Withdrawal of suit by next friend: Where suit by minor is
withdrawn by his next friend without obtaining permission of the
Court, such withdrawal will be voidable at the instance of such
minor, however, the transaction will not be illegal or void. A.
Perumal v. R. Jayaraman, 1986 SCC OnLine Mad 266 : AIR 1987
Mad 115 Appointment of next friend where wife of lunatic person
sold his property against which suit filed by lunatic through his
next friend, in such circumstances wife being defendant could
not be appointed as next friend, therefore, absence of formal
order of appointment of next friend was only an irregularity.
Johri & Ors. v. Mahila Draupati alias Dropadi & Ors., AIR 1991
M.P. 340:
Qualification to be a next friend or guardian— Any person who
is of sound mind and has attained majority may act as next
friend of a minor or as his guardian for the suit:
Provided that the interest of that person is not adverse to that of
minor and that he is not, in the case of a next friend, a
defendant, or in the case of a guardian for the suit, a plaintiff.
Go to Index
Page 59 of 401
(8) If the suit is by or against Government, there

must be compliance of the provisions under Order 27
& Sections 79 & 80 of C.P.C Suits by or against
Government— In any suit by or against the Government, the
plaint or written statement shall be signed by such person as the
Government may, by general or special order, appoint in this
behalf, and shall be verified by any person whom the Government
may so appoint and who is acquainted with the facts of the case.
The Court while admitting the suit need to verify the letter of
authorization by the Govt. by which the concerned officer has
been authorized to swear affidavit in support of the Plaint or W.S.
Suits by or against Government (Sec79)—In a suit by or against
the Government, the authority to be 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, 5
[the Union of India], and
(b) in the case of a suit by or against a State Government, the
State.]
Notice( Section 80)—Save as otherwise provided in sub-Section

(2), no suit shall be instituted against the Government or against
a public officer in respect of any act purporting to be done by
such public officer in his official capacity, until the expiration of
two months next after notice in writing has been delivered to,
or left at the office of—
(a) in the case of a suit against the Central Government, [except
where it relates to a railway] a Secretary to that Government;
Page 60 of 401
(b) in the case of a suit against the Central Government where it

relates to railway, the General Manager of that railway;
(c) in the case of a suit against any other State Government, a
Secretary to that Government or the Collector of the district
and, in the case of a public officer, delivered to him or left at his
office, stating the cause of action, the name, description and
place of residence of the plaintiff and the relief which he claims;
and the plaint shall contain a statement that such notice has
been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the
Government or any public officer in respect of any act purporting
to be done by such public officer in his official capacity, may be
instituted, with the leave of the Court, without serving any notice
as required by sub-Section (I); but the Court shall not grant relief
in the suit, whether interim or otherwise, except after giving to
the Government or public officer, as the case may be ,a
reasonable opportunity of showing cause in respect of the relief
prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the
parties, that no urgent or immediate relief need be granted in the
suit, return the plaint for presentation to it after complying
with the requirements of sub-Section (1).
(3) No such suit instituted against the Government shall be
dismissed merely by reason of any error or defect in the
notice referred to in sub-Section (I), if in such notice—
(a) the name, description and the residence of the plaintiff had
been so given as to enable the appropriate authority or the public
officer to identify the person serving the notice and such notice
Page 61 of 401
had been delivered or left at the office of the appropriate

authority specified in sub-Section (1), and
(b) the cause of action and the relief claimed by the plaintiff had
been substantially indicated.
Scope - Where appeal is filed on behalf of the State, on the date
of presentation of appeal, no sanction had been given to the
Standing Counsel on the date of appeal, the appeal will be
deemed to have been filed by some incompetent persons. Such
defect cannot be cured by obtaining sanction subsequently. State
of Rajasthan & Ors. v. M/s. Jaipur Hosiery Mills (Pvt.) Ltd. &
Ors., AIR 1997 Raj. 10.
From the above ratio it follows that if the Court at any stage
deems it proper to implead the Govt or any public officer , it can
do so and direct the plaintiff under Order 1 Rule 10 to add and
issue notice to such Govt or public officer.
Court can allow addition of parties even at the final stage of
the hearing, whenever the Court is satisfied that addition of such
parties is necessary. The Court can even allow Government or
other Authorities as defendant., Mahabir Prasad Lohia v. Karam
Chand Thapar and Bros. Ltd., AIR 1985 Cal. 209
Section 80(1) of the Code requires prior notice of two months to
be served on the Government as a condition for filing a suit
except when there is urgency for interim order in which case the
Court may not insist on the rigid Rule of prior notice. The two
months period has been provided for, so that the Government
shall examine the claim put up in the notice and has sufficient
time to send a suitable reply. The underlying object is to curtail
the litigation. The object also is to curtail the area of dispute and
Page 62 of 401
controversy. Similar provisions also exist in various other

legislations as well. Wherever the statutory provision requires
service of notice as a condition precedent for filing of suit and
prescribed period therefor, it is not only necessary for the
governments or departments or other statutory bodies to send a
reply to such a notice but it is further necessary to properly deal
with all material points and issues raised in the notice. The
Governments, Government departments or statutory authorities
are defendants in large number of suits pending in various
Courts in the country. Judicial notice can be taken of the fact
that in large number of cases either the notice is not replied or in
few cases where reply is sent, it is generally vague and evasive.
The result is that the object underlying Section 80 of the Code
and similar provisions gets defeated. It not only gives rise to
avoidable litigation but also results in heavy expense and cost to
the exchequer as well. Proper reply can result in reduction of
litigation between State and the citizens. In case proper reply is
sent either the claim in the notice may be admitted or area of
controversy curtailed or the citizen may be satisfied on knowing
the stand of the State. There is no accountability in the
Government, Central or State or the statutory authorities in
violating the spirit and object of Section 80.These provisions cast
an implied duty on all concerned governments and States and
statutory authorities to send appropriate reply to such notices.
Having regard to the existing state of affairs, the Court directed
all concerned governments, Central or State or other authorities,
whenever any statute requires service of notice as a condition
precedent for filing of suit or other proceedings against it, to
Page 63 of 401
nominate, within a period of three months, an officer who shall

be made responsible to ensure that replies to notices under
Section 80 or similar provisions are sent within the period
stipulated in a particular legislation. The replies shall be sent
after due application of mind. Despite such nomination, if the
Court finds that either the notice has not been replied or reply is
evasive and vague and has been sent without proper application
of mind, the Court shall ordinarily award heavy cost against the
Government and direct it to take appropriate action against the
concerned Officer including recovery of costs from him., Salem
Advocate Bar Association, Tamil Nadu v. Union of India, AIR
2003 SC 189
In such cases where the plaintiff has not impleaded the Govt, but
files a petition impleading State as a party without serving any
prior notice that cannot dispense with the need of prior notice. It
cannot be said that service of notice was empty formality rather it
is issued to give time to the Government or Public Officer an
opportunity to reconsider the legal position of the case and
therefore, the petition without notice, held liable to be dismissed.
S.K. Dofian Hossain v. Narayan Keshi and Ors 1997 I OLR 98.,
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Page 64 of 401
Return of plaint
Order 7 Rule 10 - (1) Subject to the provisions of Rule 10A, the
plaint shall at any stage of the suit be returned to be presented to
the Court in which the suit should have been instituted.
Explanation.-For the removal of doubts, it is hereby declared
that a Court of appeal or revision may direct, after setting aside
the decree passed in a suit, the return of the plaint under this
sub-Rule.
Further, Rule 10A provides that where in any suit after the
defendant has appeared, and the plaint is returned, the Court
shall direct the plaintiff (1) to specify the Court in which he
proposes to present the plaint after its return (2) the Court may
fix a date for appearance of parties in said Court and give notice
to both parties of such date. This notice of date shall be deemed
to be a summon for the appearance of the defendant in such
Court on the date fixed.
Question: Can a Plaintiff file an appeal from the order under
Rule 10 of Order 7?
Answer: Yes, such appeal is maintainable under Order 43 Rule 1
(a) . But where the plaint was returned on an application made
by the plaintiff under Order 7 Rule10A(2) such appeal is not
maintainable.
Order 7 Rule10 (2) Procedure on returning plaint.-On
returning a plaint, the Judge shall endorse thereon the date of its
presentation and return, the name of the party presenting it, and
a brief statement of the reasons for returning it.
Page 65 of 401
Scope - CPC provides that the plaint shall at any stage of the suit
be returned to be presented to the Court in which the suit should
have been instituted. Once the Court has held that it has no
pecuniary jurisdiction, it should not have dismissed the suit but
is bound to return it for presentation to proper Court.
The return of the plaint with an endorsement on it is a part of the
Court‘s duty and until an endorsement is made and the plaint is
ready for return, the proceedings cannot be considered to be at
an end. This means that the proceedings for the return of the
plaint came to an end only when an endorsement was actually
made on the plaint. Then only can the plaint be said to be ready
for being returned for presentation to the proper Court. In view of
the wording of Section 14 of the Limitation Act, it must be held
that the date on which the plaint was tendered to the plaintiff will
be the date on which the proceedings ended. Islam Shah v. Wali
Mohammad Khan, 1971 SCC OnLine All 313 : AIR 1971 All 473
When it is found that the suit was barred under some statutory
provisions, the proper procedure to be followed will be to reject
the plaint and not to return it to the plaintiff. Ajmer Kaur & Ors.
v. Punjab State & Ors., AIR 1991 (P& H) 12.
The Court finding that it has no jurisdiction to try the suit and
therefore, dismissed the same. Held, the proper course for the
Court was to return the suit for presentation to proper Court
instead of dismissing it, R.S.D.V. Finance Company Ltd. v. Shri
Vallabh Glass Works Limited, AIR 1993 SC 2094 : 1993(2) SCC
130:
Return of plaint by Court on ground that it lacked pecuniary
jurisdiction. Right of defendant to file fresh written
Page 66 of 401
statement and lead evidence on re-presentation of suit. Re-

presentation of plaint is not a continuation of suit but a fresh
proceeding in the case, defendant would get a right to file fresh
written statement and to adduce evidence. T.H. Yashawanta &
Ors. v. T.J. Jagadeesh & Ors., 1999(4) CCC 220 (Kant.).
If the Court has jurisdiction over some of the causes of
action and thus has jurisdiction over a portion of the plaint there
should be no reason why it cannot allow the plaintiff to amend
the plaint to lop off those portions beyond its grip and proceed
with the portions within its grasp. Where the Court finds that the
plaint comprises causes of action within its jurisdiction as well as
causes of action outside its jurisdiction, neither the suit can be
dismissed as a whole nor the plaint can be returned as a whole.
And the plaint, if it is to be returned, must be returned either as
a whole or not at all and it is not for the Court to make a
disSection of the plaint and then to retain a part and to return a
part. Smt. Sheela Adhikari v. Rabindra Nath Adhikari & Ors., AIR
1988 Cal. 273 :
Go to Index
Page 67 of 401
Rejection of plaint
Order 7 Rule 11-The plaint shall be rejected in the following
cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff,
on being required by the Court to correct the valuation
within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
returned upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court,
fails to do so;
(d) where the suit appears from the statement in the plaint to
be barred by any law ;
(e)where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of
Rule 9 :
Provided that the time fixed by the Court for the correction
of the valuation or supplying of the requisite stamp-paper
shall not be extended unless the Court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by
any cause of an exceptional nature form correcting the
valuation or supplying the requisite stamp-paper , as the
case may be, within the time fixed by the Court and that
refusal to extend such time would cause grave injustice to
the plaintiff.
Page 68 of 401
Scope – It is interesting to note that there are two consequences

provided in the Code for not filing requisites and copies of plaint
within seven days after the order of the Court under Order 7
Rule9. Firstly the plaint can be rejected under Order 7 Rule11(f).
Secondly, the suit can be dismissed under Order 9 Rule2.
However, the remedy in case of rejection of plaint is provided in
Order 7 Rule13 by way of presentation of fresh plaint. In case
of dismissal of suit, the remedy lies in Order9 Rule 4 which
provides that the plaintiff may bring fresh suit or the Court may
restore suit to file. Meaning thereby that when the plaint is
rejected under Order7 Rule 11 (f) the same cannot be restored by
the Court and the only remedy to the plaintiff is presentation of
fresh plaint. In term of the definition of Decree as given in
Section2(2) it is deemed to include rejection of a plaint.
In order to consider Order 7 Rule 11, the Court has to
scrutinize the averments/plea in the plaint . At that stage ,the
pleas taken by the defendant in the written statement are wholly
irrelevant and the matter is to be decided only on the plaint
averments. If the allegations are vexatious and meritless and not
disclosing a clear right or material to sue, it is duty of the trial
Court to exercise his power. If clever drafting has created the
illusion of a cause of action it should be nipped in the bud at the
first hearing by examination of the parties under order 10 of the
code Church of Christ Charitable Trust & Educational Charitable
Society v. Ponniamman Educational Trust, (2012) 8 SCC 706
which relied on T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC
467
Page 69 of 401
When the Court rejects plaint recording of reasons for, is

mandated by order 7 Rule 12 Civil Procedure Code Ram Prakash
Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59
The real object of Order 7, Rule 11 of the Code is to keep out of
Courts irresponsible law suits. Therefore, it is a tool in the hands
of the Courts by resorting to which and by searching examination
of the party in case the Court is prima facie of the view that the
suit is an abuse of the process of the Court in the sense that it is
a bogus and irresponsible litigation, the jurisdiction under Order
7, Rule 11 of the Code can be exercised. Sopan Sukhdeo Sable v.
Assistant Charity Commissioner, AIR 2004 SC 1801.
The whole purpose of conferment of powers under Order 7, Rule
11 of the Code of Civil Procedure is to ensure that a litigation
which is meaningless and bound to prove abortive should not be
permitted to occupy the time of the Court and must be
terminated and brought to an end at the earliest. The applicant
should not be put to the long and expensive process of trial and
the burden of litigation when it is clear at the outset that original
plaintiff have no cause of action against the applicant and the
plaint discloses no cause of action whatsoever. Kuok Oils and
Grains PTE Ltd. v. Tower International Pvt. Ltd.AIR 2005 Guj. 9:
A perusal of Order VII, Rule 11, C.P.C. makes it clear that the
relevant facts which need to be looked into for deciding an
application thereunder are the averments in the plaint. The trial
Court can exercise the power under Order. VII, Rule. 11, C.P.C.
at any stage of the suit before registering the plaint or after
issuing summons to the defendant at any time before the
conclusion of the trial. For the purposes of deciding an
Page 70 of 401
application under Cls. (a) and (d) of Rule. 11 of Order. VII, C.P.C.,
the averments in the plaint are germane; the pleas taken by the
defendant in the written statement would be wholly irrelevant at
that stage, therefore, a direction to file the written statement
without deciding the application under Order 7, Rule. 11, C.P.C.
cannot but be procedural irregularity touching the exercise of
jurisdiction by the trial Court. Sakeen Bhai v. State of
Maharshtra, 2003(1) Supreme 433: AIR 2003 SC 759 : 2003
(1)SCC 557.
Cause of action and applicability of law are two distinct different
and independent things and one cannot be confused with the
other. The expression ‗cause of action‘ has not been defined in
the Code. It is however settled law that every suit presupposes
the existence of a cause of action. If there is no cause of action,
the plaint has to be rejected [Rule 11(a) of Order VII]. Stated
simply, cause of action means a right to sue. It consists of
material facts which are imperative for the plaintiff to allege and
prove to succeed in the suit. The classic definition of the
expression (cause of action) is found in the observations of Lord
Brett in Cooke v. Gill, 1873 (8) CP 107: 42 LJ CP 98. A cause of
action means every facts, which if traversed, it would be
necessary for the plaintiff to prove in order to support his right to
a judgment of the Court. In other words, it is a bundle of facts
which taken with the law applicable to them gives the plaintiff a
right to relief against the defendant. It must include some act
done by the defendant since in the absence of such an act no
cause of action can possibly accrue. Laxman Prasad v. Progigy
Electronics Ltd., 2008 (1) SCC 618: AIR 2008 SC 685
Page 71 of 401
Rejection of plaint under Rule 11 does not preclude the plaintiffs

from presenting a fresh plaint in terms of Rule 13. Sopan
Sukhdeo Sable v. Assistant Charity Commissioner, 2004 (3) SCC
137: AIR 2004 SC 1801:
Order 7 Rule 11(d) speaks of the suit being ―barred by any law‖.
According to Black‘s Law Dictionary, 'bar' means, a plea arresting
a law suit or legal claim. It means as a verb, to prevent by legal
objection. According to Ramanatha Aiyar‘s Law Lexicon, ―bar‖ is
that which obstructs entry or egress; to exclude from
consideration. It is therefore necessary to see whether a suit bad
for misjoinder of parties or of causes of action is excluded from
consideration or is barred entry for adjudication. As pointed out
already, on the scheme of the Code, there is no such prohibition
or a prevention at the entry of a suit defective for misjoinder of
parties or of causes of action. The Court is still competent to try
and decide the suit, though the Court may also be competent to
tell the plaintiffs either to elect to proceed at the instance of one
of the plaintiffs or to proceed with one of the causes of action. On
the scheme of the Code of Civil Procedure, it cannot therefore be
held that a suit barred for misjoinder of parties or of causes of
action is barred by a law, here the Code. This may be contrasted
with the failure to comply with Section 80 of the Code. In a case
not covered by sub-Section (2) of Section 80, it is provided in
sub-Section (1) of Section 80 that ―no suit shall be instituted‖.
This is therefore a bar to the institution of the suit and that is
why Courts have taken the view that in a case where notice
under Section 80 of the Code is mandatory, if the averments in
the plaint indicate the absence of a notice, the plaint is liable to
Page 72 of 401
be rejected. For, in that case, the entertaining of the suit would

be barred by Section 80 of the Code. The same would be the
position when a suit hit by Section 86 of the Code is filed without
pleading the obtaining of consent of the Central Government if
the suit is not for rent from a tenant. Not only are there no words
of such import in Order 1 or Order 2 but on the other hand, Rule
9 of Order 1, Rules 1 and 3 of Order 1, and Rules 3 and 6 of
Order 2 clearly suggest that it is open to the Court to proceed
with the suit notwithstanding the defect of misjoinder of parties
or misjoinder of causes of action and if the suit results in a
decision, the same could not be set aside in appeal, merely on
that ground, in view of Section 99 of the Code, unless the
conditions of Section 99 are satisfied. Therefore, by no stretch of
imagination, can a suit bad for misjoinder of parties or
misjoinder of causes of action be held to be barred by any law
within the meaning of Order 7 Rule 11(d) of the Code. Thus,
when one considers Order 7 Rule 11 of the Code with particular
reference to clause (d), it is difficult to say that a suit which is
bad for misjoinder of parties or misjoinder of causes of action, is
a suit barred by any law. A procedural objection to the
impleading of parties or to the joinder of causes of action or the
frame of the suit, could be successfully urged only as a
procedural objection which may enable the Court either to permit
the continuance of the suit as it is or to direct the plaintiff or
plaintiffs to elect to proceed with a part of the suit or even to try
the causes of action joined in the suit as separate suits. Prem
Lala Nahata v. Chandi Prasad Sikaria, 2007 (2) SCC 551. In
Assembly of God Church v. Ivan Kapper ((2004) 4 CHN 360, it
Page 73 of 401
was held that a defect of misjoinder of parties and causes of

action is a defect that can be waived and it is not such a one as
to lead to the rejection of the plaint under Order 7 Rule 11(d) of
the Code. The said decision reflects the correct legal position.
In a Case Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)(D)
Thr Lrs 2020 SCC OnLine SC 562 Hon’ble Apex Court held
that - The power conferred on the Court to terminate a civil
action is, however, a drastic one, and the conditions enumerated
in Order VII Rule 11 are required to be strictly adhered to.
1.Under Order VII Rule 11, a duty is cast on the Court to
determine whether the plaint discloses a cause of action by
scrutinizing the averments in the plaint, read in conjunction
with the documents relied upon, or whether the suit is
barred by any law.
2.The documents filed along with the plaint, are required to
be taken into consideration for deciding the application
under Order VII Rule 11 (a). When a document referred to in
the plaint, forms the basis of the plaint, it should be treated
as a part of the plaint.
3.In exercise of power under this provision, the Court would
determine if the assertions made in the plaint are contrary
to statutory law, or judicial dicta, for deciding whether a
case for rejecting the plaint at the threshold is made out.
4.At this stage, the pleas taken by the defendant in the
written statement and application for rejection of the plaint
on the merits, would be irrelevant, and cannot be adverted
to, or taken into consideration.
Page 74 of 401
5.The test for exercising the power under Order VII Rule 11
is that if the averments made in the plaint are taken in
entirety, in conjunction with the documents relied upon,
would the same result in a decree being passed. This test
was laid down in Liverpool & London S.P. & I Assn. Ltd. v.
M.V.Sea Success I & Anr., (2004) 9 SCC 512.
6.It is not permissible to cull out a sentence or a passage,
and to read it in isolation. It is the substance, and not
merely the form, which has to be looked into. The plaint has
to be construed as it stands, without addition or subtraction
of words. If the allegations in the plaint prima facie show a
cause of action, the Court cannot embark upon an enquiry
whether the allegations are true in fact. Hardesh Ores (P.)
Ltd. v. Hede & Co. (2007) 5 SCC 614.
7.If on a meaningful reading of the plaint, it is found that
the suit is manifestly vexatious and without any merit, and
does not disclose a right to sue, the Court would be justified
in exercising the power under Order VII Rule 11 CPC.
8.The power under Order VII Rule 11 CPC may be exercised
by the Court at any stage of the suit, either before
registering the plaint, or after issuing summons to the
defendant, or before conclusion of the trial. Saleem Bhai v.
State of Maharashtra 7 (2003) 1 SCC 557.
9."Cause of action" means every fact which would be
necessary for the plaintiff to prove, if traversed, in order to
support his right to judgment. It consists of a bundle of
material facts, which are necessary for the plaintiff to prove
in order to entitle him to the reliefs claimed in the suit.
Page 75 of 401
10.While considering an application under Order VII Rule

11 CPC what is required to be decided is whether the plaint
discloses a real cause of action, or something purely
illusory.
11.Law cannot permit clever drafting which creates illusions
of a cause of action. What is required is that a clear right
must be made out in the plaint. I.T.C. Ltd. v. Debt Recovery
Appellate Tribunal, (1998) 2 SCC 170.
12.If, however, by clever drafting of the plaint, it has created
the illusion of a cause of action, it should be nipped in the
bud, so that bogus litigation will end at the earliest stage.
Madanuri Sri Ramachandra Murthy v. Syed Jalal.
13.The Court must be vigilant against any camouflage or
suppression, and determine whether the litigation is utterly
vexatious, and an abuse of the process of the Court.
Go to Index
Page 76 of 401
SERVICE OF SUMMONS
Introduction: Practically after the presentation of the plaint and
after perusing the report of the Serishtadar when it is found to be
in order, the Court is required to draw a detailed order on the
point of admission of the suit. It may pointed out that expression
―admission‖ does not figure in the Code, but before issuing the
summons to the defendants as per Order 7 Rule 9 the Court
need to draw a specific order on the following points:
1. Valuation of the Suit
2. Court Fee Paid
3. Within the Jurisdiction of the Court
4. That the Plaint is in proper form ( Detailed in O7 Rule1)
Procedure on admitting plaint (Order 7 Rule 9)- Where the

Court orders that the summons be served on the defendants in
the manner provided in Rule 9 of Order V, it will direct the
plaintiff to present as many copies of the plaint on plain paper as
there are defendants within seven days from the date of such
order along with requisite fee for service of summons on the
defendants.
Court Practice: The Court need to be vigilant while fixing date at
this stage and should ideally fix the next date for furnishing of
requisites after seven days. In practice it is sometimes seen that
the case is posted after one month for direct appearance of the
defendant and on the next date it is found that the requisites
have still not been filed. Therefore, fixing of the case after seven
days enables the Court to ensure that the requisites is filed
without delay and summons is issued.
Page 77 of 401
Question: What is the upper time limit for filing of requisites?

Answer: Legally speaking the mandate of seven days as provided
under Order 7 Rule 9 is not inflexible in the light of the Proviso to
Order 7 Rule 11 which provides that the time may be extended
for the reasons to be recorded and satisfaction of the Court that
the plaintiff was prevented by any cause of an exceptional nature.
The discretion of the Court to extend the time shall be subject to
Section 148 which provides the upper limit of 30 days in total.
However, as per the ratio laid down in Salem Bar Association
case extension beyond maximum of 30 days thus can be
permitted if the act could not be performed within thirty days for
reasons beyond the control of the parties. Section 151 has
therefore to be allowed to operate fully. Section 27 further
provides that a time limit of thirty days form institution of suit for
issuance of summons.
Order 5 Rule 1
(1) When a suit has been duly instituted a summons may be
issued to the defendant to appear and answer the claim and to
file the written statement of his defence, if any, within thirty
days from the date of service of summons on that
defendants: Provided that no such summons shall be issued
when the defendant has appeared at the presentation of the
plaint and admitted the plaintiff's claim. & Sections 27, 28 of
Civil Procedure Code)
(2) A defendant to whom a summons has been issued under sub-
Rule (1) may appear-(a) in person, or(b) by a pleader duly
instructed and able to answer all material questions relating to
Page 78 of 401
the suit, or(c) by a pleader accompanied by some person able to

answer all such questions.
(3) Every such summons shall be signed by the Judge or such
officer as he appoints, and shall be sealed with the seal of the
Court.
Order 5 Rule 2-Every summons shall be accompanied by a copy
of the plaint.
Scope- Order 5 Rule 1 need to be read with Order 5 Rule 7 and
in the Summons there should be a specific direction to the
defendant to produce on that day all the documents upon which
the defendant intend to rely in support of his defence. Form
No.P(2) in Volume II of Civil Court Rules makes a specific
mention of such requirement. The object of this provision is to
curtail delay in filing such document.
Further, Order 5 Rule 6 mandates the Court to fix the day
for appearance of defendant in the summons.
It has been held in Autocars Vs. Trimurti Cargo Movers Ltd. 2018
(4) JLJR 458 SC- that mentioning of the specific day, date, year
and time in the summons is a statutory requirement prescribed
in the Code. Service of summons on defendants without
mentioning therein day, date, year and time cannot be held as
summons duly served on defendants within the meaning of Order
9 Rule 13.
The intent of the aforesaid Rule clearly is that where service of
summons is to be made by affixation under Rule 17 of Order 5,
summons should also be accompanied by a copy of the plaint.
Where the summons served under Rule 17 are not accompanied
by a copy of the plaint, it would not be a mere irregularity in
Page 79 of 401
service of summons. It would be an illegality in the service in the

same manner as there is illegality in service of summons under
Rule 10 of Order 5,Civil Procedure Code without a copy of the
plaint accompanying the summons which is tendered to the
defendant, Singh v. Purbia, AIR 1989 H.P. 26
From the above ratio it is evident that the Service Report should
specifically mention that the plaint along with the summons has
been affixed in cases of substituted services.
(I) Delivery of summon by Court-

Delivery or transmission of summons for service (Order 5
Rule 9)- (1) Where the defendant resides within the jurisdiction
of the Court in which the suit is instituted, or has an agent
resident within that jurisdiction who is empowered to accept the
service of the summons, the summons shall, unless the Court
otherwise directs, be delivered or sent to the proper officer to
be served by him or one of his subordinates or to such
courier services as are approved by the Court.
(2) The proper officer may be an officer of a Court other than that
in which the suit is instituted, and, where he is such an officer,
the summons may be sent to him by post or in such other
manner as the Court may direct.
(3) The services of summons may be made by delivering or
transmitting a copy thereof by registered post acknowledgment
due, addressed to the defendant or his agent empowered to
accept the service or by speed post or by such courier services as
are approved by the High Court or by the Court referred to in
sub-Rule (!) or by any other means of transmission of documents
Page 80 of 401
(including fax message or electronic mail service) provided by the

Rules made by the High Court:
(4) Notwithstanding anything contained in sub-Rule (1), where a
defendant resides outside the jurisdiction of the Court in which
the suit is instituted, and the Court directs that the service of
summons on that defendant may be made by such mode of
service of summons as is referred to in sub-Rule (3)(except by
registered post acknowledgment due), the provisions of Rule 21
shall not apply.
(5) When an acknowledgment or any other receipt purporting to
be signed by the defendant or his agent is received by the Court
or postal article containing the summons is received back by the
Court with an endorsement purporting to have been made by a
postal employee or by any person authorised by the courier
service to the effect that the defendant or his agent had refused
to take delivery of the postal article containing the summons or
had refused to accept the summons by any other means specified
in sub-Rule (3) when tendered or transmitted to him, the Court
issuing the summons shall declare that the summons had been
duly served on the defendant:
Provided that where the summons was properly addressed, pre-
paid and duly sent by registered post acknowledgment due, the
declaration referred to in this sub-Rule shall be made
notwithstanding the fact that the acknowledgment having been
lost or mislaid, or for any other reason, has not been received by
the Court within thirty days from the date of issue of summons.
Page 81 of 401
(6) The High Court or the District Judge, as the case may be,
shall prepare a panel or courier agencies for the purposes of sub-
Rule (1).
Scope- Under Order V Rule 9, the summons may be served by
the officer of the Court and it permits service of summons by
party or through courier. Order V Rule 9(3) and Order V Rule 9-A
permit service of summons by courier or by the plaintiff.
Order V Rule 9(5) requires the Court to declare that the
summons had been duly served on the defendant on the
contingencies mentioned in the provision. It is in the nature of
deemed service. The apprehension expressed was that service
outside the normal procedure is likely to lead to false reports of
service and passing of ex parte decrees. It is further urged that
courier‘s report about defendant‘s refusal to accept service is also
likely to lead to serious malpractice and abuse. The Hon‘ble
Supreme Court held that while considering the submissions, it
has to be borne in mind that problem in respect of service of
summons has been one of the major causes of delay in the due
progress of the case. It is common knowledge that the defendants
have been avoiding to accept summons. There have been serious
problems in process serving agencies in various Courts. There
can, thus, be no valid objection in giving opportunity to the
plaintiff to serve the summons on the defendant or get it served
through courier. There is, however, danger of false reports of
service. It is required to be adequately guarded. The Courts shall
have to be very careful while dealing with a case where orders for
deemed service are required to be made on the basis of
endorsement of such service or refusal. The High Courts can
Page 82 of 401
make appropriate Rules and regulations or issue practice

directions to ensure that such provisions of service are not
abused so as to obtain false endorsements. In this regard, the
High Courts can consider making a provision for filing of affidavit
setting out details of events at the time of refusal of service. For
instance, it can be provided that the affidavit of person effecting
service shall state as to who all were present at that time and
also that the affidavit shall be in the language known to the
deponent. It can also be provided that if affidavit or any
endorsement as to service is found to be false, the deponent can
be summarily tried and punished for perjury and the courier
company can be black-listed. The guidelines as to the relevant
details to be given can be issued by the High Courts. The High
Courts, it is hoped, would issue as expeditiously as possible,
requisite guidelines to the trial Courts by framing appropriate
Rules, order, regulations or practice directions, Salem Advocate
Bar Association, Tamil Nadu v. Union of India, AIR 2003 SC 189
Application for setting aside for ex-parte decree on the plea of
absence of notice. The evidence of process server and other facts
revealed that the petitioner refused to put her thumb impression
on the summons when they were handed over to her. It amounts
to acceptance to notice and, therefore, ex-parte decree held to be
proper. The Hon‘ble Supreme Court refused to go into the merits
of the case, Bhabia Devi v. Permanand Pd. Yadav, (1997) 3 SCC
631, AIR 1997 SC 1919.
Summons given to the plaintiff for service.(Order 5 Rule 9A)-
(1) The Court may, in addition -to the service of summons under
Rule 9, on the application of the plaintiff for the issue of a
Page 83 of 401
summons for the appearance of the defendant, permit such

plaintiff to effect service of such summons on such defendant
and shall, in such a case, deliver the summons to such plaintiff
for service.
(2) The service of such summons shall be effected by or on behalf
of such plaintiff by delivering or tendering to the defendant
personally a copy thereof signed by the Judge or such officer of
the Court as he may appoint in this behalf and sealed with the
seal of the Court or by such mode of service as is referred to in
sub-Rule (3) of Rule 9.
(3) The provisions of Rules 16 and 18 shall apply to a summons
personally served under this Rule as if the person effecting
service were a serving officer.
(4) If such summons, when tendered, is refused or if the person
served refuses to sign an acknowledgment of service or for any
reason such summons cannot be served personally, the Court
shall, on the application of the party, re- issue such summons to
be served by the Court in the same manner as a summons to a
defendant.(Order 5 Rule 9A)
Service to be on defendant on person when practicable, or
on his agent.(Order 5 Rule 12)- Wherever it is practicable
service shall be made on the defendant in person, unless he has
an agent empowered to accept service, in which case service on
such agent shall be sufficient.
Service on agent by whom defendant carries on
business.(Order 5 Rule 13)- (1) In a suit relating to any business
or work against a person who does not reside within the local
limits of the jurisdiction of the Court from which the summons is
Page 84 of 401
issued, service on any manager or agent, who, at the time of

service, personally carries on such business or work for such
person within such limits, shall be deemed good service.
(2) For the purpose of this Rule the master of a ship shall be
deemed to be the agent of the owner or chartered.
Service on agent in charge in suits for immovable
property.(Order 5 Rule 14)- Where in a suit to obtain relief
respecting, or compensation for wrong to, immovable property,
service cannot be made on the defendant in person, and the
defendant has no agent empowered to accept the service, it may
be made on any agent of the defendant in charge of the property.
Where service may be on an adult member of defendant's
family.(Order 5 Rule 15)- Where in any suit the defendant is
absent from his residence at the time when the service of
summons is sought to be effected on him at his residence and
there is no likelihood of his being found at the residence within a
reasonable time and he has no agent empowered to accept
service of the summons on his behalf service may be made on
any adult member of the family, whether male or female, who is
residing with him.
Explanation.-A servant is not a member of the family within the
meaning of this Rule.
Procedure when defendant refuses to accept service, or
cannot be found.(Order 5 Rule 17) - Where the defendant or his
agent or such other person as aforesaid refuses to sign the
acknowledgment, or where the serving officer, after using all due
and reasonable diligence, cannot find the defendant, [who is
absent from his residence at the time when service is sought to
Page 85 of 401
be effected on him at his residence and there is no likelihood of

his being found at the residence within a reasonable time] and
there is no agent empowered to accept service of the summons on
his behalf, nor any other person on whom service can be made,
the serving officer shall affix a copy of the summons on the outer
door or some other conspicuous part of the house in which the
defendant ordinarily resides or carries on business or personally
works for gain, and shall then return the original to the Court
from which it was issued, with a report endorsed thereon or
annexed thereto stating that he has so affixed the copy, the
circumstances under which he did do, and the name and address
of the person (if any) by whom the house was identified and in
whose presence the copy was affixed.]
Scope-
The service of summons is not a mere mechanical formality but
need to be observed meticulously. Where the summons were not
served on defendant appellant according to Order 5 Rules 16, 17
and 18 CPC it was held that the trial Court failed to discharge its
obligation under Order 9 Rule 6 CPC.
The Apex Court observed : We find several infirmities and lapses
on the part of the process server. Firstly, on the alleged refusal by
the defendant either he did not affix a copy of the summons and
the plaint on the wall of the shop or if he claims to have done so,
then the endorsement made by him on the back of the summons
does not support him, rather contradicts him. Secondly, the
tendering of the summons, its refusal and affixation of the
summons and copy of the plaint on the wall should have been
witnessed by persons who identified the defendant and his shop
Page 86 of 401
and witnessed such procedure. The endorsement shows that

there were no witnesses available on the spot. The correctness of
such endorsement is difficult to believe even prima facie. The
tenant runs a shoe shop in the suit premises. Apparently, the
shop will be situated in a locality where there are other shops
and houses. One can understand refusal by unwilling persons
requested by the process server to witness the proceedings and
be a party to the procedure of the service of summons but to say
that there were no witnesses available on the spot is a statement
which can be accepted only with a pinch of salt. Incidently, we
may state that though the date of appearance was 23rd
February, 1993 the summons is said to have been tendered on
22nd February, 1993, i.e., just a day before the date of hearing.
We find several infirmities and lapses on the part of the process
server. Firstly, on the alleged refusal by the defendant either he
did not affix a copy of the summons and the plaint on the wall of
the shop or if he claims to have done so, then the endorsement
made by him on the back of the summons does not support him,
rather contradicts him. Secondly, the tendering of the summons,
its refusal and affixation of the summons and copy of the plaint
on the wall should have been witnessed by persons who
identified the defendant and his shop and witnessed such
procedure. The endorsement shows that there were no witnesses
available on the spot. The correctness of such endorsement is
difficult to believe even prima facie. The tenant runs a shoe shop
in the suit premises. Apparently, the shop will be situated in a
locality where there are other shops and houses. One can
understand refusal by unwilling persons requested by the
Page 87 of 401
process server to witness the proceedings and be a party to the

procedure of the service of summons but to say that there were
no witnesses available on the spot is a statement which can be
accepted only with a pinch of salt. Incidently, we may state that
though the date of appearance was 23rd February, 1993 the
summons is said to have been tendered on 22nd February, 1993,
i.e., just a day before the date of hearing. (Sushil Kumar
Sabharwal Vs. Gurpreet Singh 2002 5 SCC 377)
Before service of summons by affixation, requirements of Order
5, Rule 17 must be complied with. Where identity of the person
refusing to accept the summon, not established, affixation will
not be valid. The first, requisite is that the serving officer, after
using all due and reasonable diligence has not been able to find
the defendant. This requirement is further elaborated and it
requires that such of the defendant, who is absent from the
house at the time when service is sought to be affected on him at
his residence and there is no likelihood of his being found that
the residence within a reasonable time and there is no agent
empowered to accept service on his behalf. It is only in such of
the cases when these requirements are fulfilled that the serving
officer is enabled and authorised to affix a copy of the summons
on the outer door or some other conspicuous part of the house in
which the defendant ordinarily resides or carried on business or
personally works for gain, Rajesh Kochhar v. Babu Ram, AIR
1994 NOC 119 (H.P.).
Substituted service.(Order 5 Rule 20)- (1) Where the Court is
satisfied that there is reason to believe that the defendant is
keeping out of the way for the purpose of avoiding service, or that
Page 88 of 401
for any other reason the summons cannot be served in the

ordinary way, the Court shall order the summons to be served by
affixing a copy thereof in some conspicuous place in the Court-
house, and also upon some conspicuous part of the house (if any)
in which the defendant is known to have last resided or carried
on business or personally worked for gain, or in such other
manner as the Court thinks fit.
[(1-A) Where the Court acting under sub-Rule (1) orders service
by an advertisement in a newspaper, the newspaper shall be a
daily newspaper circulating in the locality in which the defendant
is last known to have actually and voluntarily resided, carried on
business or personally worked for gain.
Scope- There is no requirement of law under this Rule that an
order for substituted service could be passed by a Court only
after more than one unsuccessful attempt had been made to
serve summons personally on the defendant. All that the Rule
requires is that the Court may order substituted service when it
is satisfied that there is reason to believe that the defendant is
keeping out of the way for the purpose of avoiding service or for
any other reason that the summons cannot be served in the
ordinary way, Kadai Ram v. Ram Sunder Tewari, AIR 1973 All.
58.
2008(2) SCC 326:Sunil Poddar Vs Union Bank of India If the
Court is convinced that the defendant had otherwise knowledge
of the proceedings and he could have appeared and answered the
plaintiffs claim, he cannot put forward a ground of non service of
summons for setting aside ex parte decree passed against him by
invoking Rule 13 of Order IX of the Code
Page 89 of 401
2018 (2) SCC 649 Neerja Relators Vs Jaglu (Dead through

L.R) : Provisions of Order V, Rule 20 and 17 CPC have to be
followed in service of summons.-- Evidently as the report of the
bailiff indicates, he was unable to find the defendant at the
address which was mentioned in the summons. The report of the
bailiff does not indicate that the summons were affixed on a
conspicuous part of the house, at the address mentioned in the
summons. There was a breach of the provisions of Order V Rule
17. When the application for substituted service was filed before
the Trial Court under Order V Rule 20, a cryptic order was
passed on 2 September 2011. Order V Rule 20 requires the Court
to be satisfied either that there is reason to believe that the
defendant is keeping out of the way for the purpose of avoiding
service or that for any other reason, the summons cannot be
served in the ordinary way. Substituted service is an exception to
the normal mode of service. The Court must apply its mind to the
requirements of Order V Rule 20 and its order must indicate due
consideration of the provisions contained in it. Evidently the Trial
Court failed to apply its mind to the requirements of Order V Rule
20 and passed a mechanical order.
A defendant against whom an ex-parte decree is passed has two
options: The first is to file an appeal. The second is to file an
application under Order IX Rule 13. The defendant can take
recourse to both the proceedings simultaneously. The right of
appeal is not taken away by filing an application under Order IX
Rule 13. But if the appeal is dismissed as a result of which the
ex-parte decree merges with the order of the Appellate Court, a
petition under Order IX Rule 13 would not be maintainable.
Page 90 of 401
When an application under Order IX Rule 13 is dismissed, the

remedy of the defendant is under Order XLIII Rule 1. However,
once such an appeal is dismissed, the same contention cannot be
raised in a first appeal under Section 96. The three Judge bench
decision in Bhanu Kumar Jain has been followed by another
bench of three Judges in Rabindra Singh v Financial
Commissioner, Cooperation, Punjab, (2008) 7 SCC 663 and by a
two Judge bench in Mahesh Yadav v Rajeshwar Singh, (2009) 2
SCC 205. In the present case, the original defendant chose a
remedy of first appeal under Section 96 and was able to establish
before the High Court, adequate grounds for setting aside the
judgment and decree.
Where the defendant was carrying business at two places and
suit for ejectment filed regarding premises at place one and
substituted service also effected in the newspaper having
circulation in that locality, it cannot be said that publication
should also be at the second place where also the defendant was
carrying business, M/s Radha Krishana Banshidhar (Pvt. Ltd.) v.
Basudev Prasad & Ors., AIR 1988 NOC 43 (All)
(2)Effect of substituted service.-Service substituted by order of
the Court shall be as effectual as if it had been made on the
defendant personally.
(3)Where service substituted, time for appearance to be
fixed.-Where service is substituted by order of the Court, the
Court shall fix such time for the appearance of the defendant as
the case may require.
Service of summons where defendant resides within
jurisdiction of another Court.(Order 5 Rule 21)- A summons
Page 91 of 401
may sent by the Court by which it is issued, whether within or

without the State, either by one of its officers or by post to any
Court (not being the High Court) having jurisdiction in the place
where the defendant resides.
Service on defendant in prison(Order 5 Rule 24).- Where the

defendant is confined in a prison, the summons shall be
delivered or sent[by post or by such courier service as may be
approved by the High Court, by fax message or by Electronic Mail
service or by any other means as may be provided by the Rules
made by the High Court]to the officer in charge of the prison for
service on the defendant.
Service on soldiers, sailors or airmen.(Order 5 Rule 28)—
Where the defendant is a soldier, [sailor] [or airman],the Court
shall send the summons for service to his commanding officer
together with a copy to be retained by the defendant.
(II) Method and Proof of services-( Order 5 Rule 10 read with
Rules 48 to 58 of JCCR)
Mode of service (Order5 Rule 10) --Service of the summons
shall be made by delivering or tendering a copy thereof
signed by the Judge or such officer as he appoints in this
behalf, and sealed with the seal of the Court.
Rule 48 JCCR.(1)Service should be personal wherever
practicable and the Courts ought not in ex- parte cases to
act upon anything short of personal service until they are
satisfied that personal service could not reasonably be
effected.
Page 92 of 401
(2) Services may be affected within the jurisdiction of the

Court by such Courier services also, which are approved by
the Court.
(3) In addition to the service through registered post, the other
modes Post, Fax message or electronic mail service may be
ordered to be made, at the expense of plaintiff (Parties) to the
defendant residing outside the Jurisdiction of the Court.
(4) The panel of such courier service or the other mode as
specified in the above Sub-Rule 3 shall be made and
approved by the High Court.
(5) In addition to the service of summon as mentioned above
the Court on an application may permit the plaintiff to effect
such service of summon on the defendants in accordance
with the provisions of Order 5 Rule (9-A) (2).
Rule 49 JCCR. When a summon or notice is served
personally, the service and the signature or thumb-
impression of the person served on the back of the summon
or notice should be proved and, in the case of a defendant or
judgment-debtor his identity should also be proved.
Rule 50 JCCR.If the service is made under Order V, Rule 12,
of the Code, on an agent, it should be proved that such
agent was empowered to accept service, either by reason of
his being one of the class of recognised agents described in
Order III, Rule 2, Order XXVII, Rule 2, or Section 85 (1), or
by virtue of appointment for that purpose in writing. The
party causing the service to be effected must, in both the last
mentioned cases, furnish the necessary proof to this effect.
Page 93 of 401
Rule 51 JCCR.Where service is made under Order V, Rules

14, 15, 17 or 21 the necessary particulars must be strictly
proved. In the case of such service it must also be proved
that a reasonable attempt was made to find out the person
to be served. Where service is made under Order V, Rule 20,
it should, in addition to the particulars required by law, be
proved how long and until what time the defendant or
respondent resided in the house and what has become of
him.
Rule 52 JCCR.If the service is made under Order XXIX, Rule
2, it should be proved that the summons or notice was left at
the registered officer of the Company, or was delivered to any
Director, Secretary or other principal officer.
Rule 53 JCCR. In the case of Railway Administrations or
Companies in addition to service in the usual way, a copy of
the summons should be sent by post under Order XXIX,
Rule 2 (b); provided that if the summons is sent by
registered post, service in the usual way may be dispensed
with.
Rule 54 JCCR.If the service is made under Order XXX, Rule
3, clause (b), it should be proved that the person on whom
the summons was served, has at the time of service, the
control or management of the partnership business. If the
summons or notice, when tendered, is declined by the
defendant or his agent, or a male or female adult member of
his family, besides the proof required as to identity, etc., as
stated above, it
Page 94 of 401
Rule 55 JCCR.should be proved that the party was informed

that the document tendered was summons or notice, and
that he was made acquainted with the nature and contents
thereof.
Rule 56 JCCR.The proof required under the preceding Rules
49, 51 and 55 shall in the following cases ordinarily
(1) in the case of a respondent, the affidavit of the person by
whom the service was effected;
(2) in the case of a defendant or judgment-debtor, the affidavit
of the person by whom the service was effected, and in
addition at least one of the following
(a) that affidavit of an identifier provided by the plaintiff or
decree-holder and present at the service;
(b) verification in the form printed upon the back of the
process and made; at the scene of the service, by a local
villager, Chaukidar, Dafadar, Mukhia or Sarpanch present
thereat;
(c) Proof referred to in Order ―Order V Rule 9‖ C.P.C.; Provided
that if deemed necessary the Court may require the
examination upon oath or affirmation of such person or
persons as it may think fit; Provided further that in the case
of service upon any adult member of the family, whether
male or female, residing with the defendant or respondent or
Judgment-debtor or opposite party (as the case may be); the
affidavit of the person, by whom service was effected, shall
contain a statement that the adult members of the family
receiving or taking the notice was residing with the
defendant or the respondent or the judgment-debtor or the
Page 95 of 401
opposite party at the time of the service and that he was

satisfied that the person upon whom service was effected
was not a servant but a member of the family;] Provided
further, that in rent suits and execution cases arising there
from and in case of Advocates appointed as guardians ad-
litem Government Pleaders in suit against Government and
Public Officers, service of summons or notice should be
accepted as sufficient upon the peon's affidavit alone, if the
peon certifies that he has served the summons or notice in
the presence of two witnesses (name and addresses of the
witnesses are to be given).
Rule 57 JCCR . As there is no legal obligation upon a plaintiff,
decree-holder or appellant to supply an identifier for service
of process or notice, process-servers must not return
unserved any notice, process or summons tendered to them
for service, by reason only of the fact that no identifier has
been supplied by the party. They must make every possible
endeavour to find out the person to -be served and to secure
the verification referred to in Rule 56 (2) (b) above, making
for that purpose careful enquiries in the locality. The Nazir
should personally deal with all cases in which the process-
server reports that he could not find the person upon whom
service was to be made, and when necessary he should bring
the matter to the notice of the Judge-in-charge of the
department.
Rule 58 JCCR .When the summons which has been served is
the summons of another Court transmitted to the serving
Court for the purpose of service only, then, upon service
Page 96 of 401
being effected , , this latter Court should re-transmit the

summons to the Court by which it was issued together with
(1) the Nazir's return and the affidavits, verified statements,
or depositions of the serving officer and the witnesses
relative to the facts of the service, (2) the record of such
Court's proceedings with regard thereto (Order V, Rule 23),
and (3) in case where any of these documents is in a
language different from that of the district from which the
process issued, an English translation of such document
certified to be correct.
Note- By similar means, the Summons shall be issued to be
served on the person detained in prison, through the Officer-
In-Charge of the prison. The High Court of Jharkhand under
the powers conferred in this Section, has made Rules to
effect the service of summons and other processes by means
of other modes as appended in Appendix IV of this Rule.
Jharkhand Civil Courts Rules
APPENDIX- IV
Service of summons and processes by other means.
In addition to the order for service of processes by post or by
processes of the Court, the order may direct to serve the same
personally by any of the modes given below :-
(i) By Fax to the parties at their official Fax number given either
in the pleadings by the parties or in course of trial, furnished on
affidavit and in proof of service by aforesaid mode the print
generated by fax machines shall be kept on record of the case.
(ii) By any of registered courier service agency of repute, having
its office in the District and in the panel as prepared by the
Page 97 of 401
Principal District Judge with the approval of Jharkhand High

Court,
(iii)Through E-mail, at the E-mail address given either in the
pleadings by the parties or in course of trial, furnished on
affidavit, by producing the receipt of sending report print out.
(iv) In all the cases referred to above, the party serving the
summons shall enclose the proof of his step so taken and the
service report thereof, supported with an affidavit
(v) Before preparing panel of any such courier agency,
appropriate surety bond must be obtained, with an agreement of
prompt and correct service of processes from the head of such
agency.
Go to Index
Page 98 of 401
APPEARANCE OF DEFENDANT
Written statement (Order 8 Rule 1)-(1)]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.
Scope -Extension of time – Provisions of Order VIII, Rule 1
including the proviso are not mandatory but directory – As such
the delay can be condoned and the written statement can be
accepted even after the expiry of 90 days from the date of service
of summons in exceptionally hard cases. Zolba vs. Keshao
(2008)11 SCC 769, Salem Advocate Bar Assn vs. Union of India
(2005)6 SCC 344.
The extension of time shall be only by way of exception and for
reasons to be recorded in writing, howsoever, brief they may be,
by the Court. In no case, shall the defendant be permitted to seek
extension of time when the Court is satisfied that it is a case of
laxity or gross negligence on the part of the defendant or his
counsel. The Court may impose costs for dual purpose; (i) to
deter the defendant from seeking any extension of time just for
asking, and (ii) to compensate the plaintiff for the delay and
inconvenience caused to him. Aditya Hotels (P) Ltd. vs. Bombay
Swadeshi Stores Ltd. 2007 (3) Supreme 291
Page 99 of 401
Duty of defendant to produce documents upon which relief

is claimed or relied upon by him (Order 8 Rule 1A)- (1) Where
the defendant bases his defence upon a document or relies upon
any document in his possession or power, in support of his
defence or claim for set-off or counter-claim, he shall enter such
document in a list, and shall produce it in Court when the
written statement is presented by him and shall, at the same
time, deliver the document and a copy thereof, to be filed with the
written statement.
(2) Where any such document is not in the possession or power
of the defendant, he shall, wherever possible, state in whose
possession or power it is.
(3) A document which ought to be produced in Court by the
defendant under this Rule, but, is not so produced shall not,
without the leave of the Court, be received in evidence on his
behalf at the hearing of the suit.
(4) Nothing in this Rule shall apply to documents
(a) produced for the cross-examination of the plaintiff's
witnesses, or
(b) handed over to a witness merely to refresh his memory.]
Subsequent pleadings (Order 8 Rule 9) — No pleading
subsequent to the written statement of a defendant other than by
way of defence to set-off or counter-claim shall be presented
except by the leave of the Court and upon such terms as the
Court thinks fit; but the Court may at any time require a written
statement or additional written statement from any of the parties
and fix a time of not more than thirty days for presenting the
same.
Page 100 of 401

Scope : A pleading, once filed, is a part of the record of the Court

and cannot be touched, modified, substituted, amended or
withdrawn except by the leave of the Court. Order 8 Rule 9 CPC
prohibits any pleadings subsequent to the written statement of a
defendant being filed other than by way of defence to a set-off or
counterclaim except by the leave of the Court and upon such
terms as the Court thinks fit. Gurdial Singh v. Raj Kumar Aneja,
AIR 2002 SC 1003.
Additional written statement When a plaint is allowed to be
amended the Court must grant leave to the defendant to file an
additional written statement. Salicharan v. Sukanti, A.I.R. 1979
Ori. 78.
Procedure when party fails to present written statement
called for by Court (Order 8 Rule 10) — Where any party from
whom a written statement is required under Rule 1 or Rule 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 in relation to the suit as it
thinks fit and on the pronouncement of such judgment a decree
shall be drawn up.
Scope - Trial Court passing judgment only on basis of plaintiff‘s
affidavit without proving the same – Not sustainable – Defendant
should not be penalized for not filing written statement.
C.N.Ramappa Gowda vs. C.C.Chandregowda (2012) 5 SCC 265
The Court does not have to act blindly upon the admission of a
fact made by the defendant in his written statement nor should
the Court proceed to pass judgment blindly merely because a
written statement has not been filed by the defendant traversing
Page 101 of 401

the facts set out by the plaintiff in the plaint filed in the Court. In
a case, specifically where a written statement has not been filed
by the defendant, the Court should be a little cautious in
proceeding under Order 8 Rule 10 of the CPC. Before passing the
judgment against the defendant it must see to it that even if the
facts set out in the plaint are treated to have been admitted, a
judgment could not possibly be passed in favour of the plaintiff
without requiring him to prove any fact mentioned in the plaint.
It is a matter of the Court‘s satisfaction and, therefore, only on
being satisfied that there is no fact which need be proved on
account of deemed admission, the Court can conveniently pass a
judgment against the defendant who has not filed the written
statement. But if the plaint itself indicates that there are
disputed questions of fact involved in the case regarding which
two different versions are set out in the plaint itself, it would not
be safe for the Court to pass a judgment without requiring the
plaintiff to prove the facts so as to settle the factual controversy.
Such a case would be covered by the expression ―the Court may,
in its discretion, require any such fact to be proved‖ used in sub-
rule (2) of Rule 5 of Order 8, or the expression ―may make such
order in relation to the suit as it thinks fit‖ used in Ruel 10 of
Order 8. Balraj Taneja v. Sunil Maan, AIR 1999 SC 3381 : 1999
(8)SCC 396.
Right to cross-examine witnesses in case of non-filing of
written statement- The suit, however, was not taken up for
hearing ex parte against the petitioner nor was it ordered to be so
taken up. The position of law in such a case is that a defendant,
even without filing a written statement, can take part in the
Page 102 of 401

hearing of the suit. He may cross-examine the plaintiff's

witnesses to demolish their version in examination-in-chief.
Without written statement, however, he cannot be permitted to
cross-examine the witnesses on questions of fact which he
himself has not pleaded nor can he be allowed to adduce
evidence on Questions of fact which have not been pleaded by
him by filing any written statement. It should be further made
clear that if a defendant files a written statement and does not
controvert the allegations in the plaint then tacitly the fact not
controverted is said to be admitted, but if he does not file written
statement, it cannot be said that he has admitted all the facts
pleaded by the plaintiff Siai Sinha v. Shivdhari Sinha, AIR 1972
(Pat.) 81.
Go to Index
Page 103 of 401

Set off and Counter claims

Particulars of set-off to be given in written statement
(Order 8 Rule 6)- (1) Where in a suit for the recovery of money
the defendant claims to set-off against the plaintiff's demand any
ascertained sum of money legally recoverable by him from the
plaintiff, not exceeding the pecuniary limits of the jurisdiction of
the Court, and both parties fill the same character as they fill in
the plaintiff's suit, the defendant may, at the first hearing of the
suit, but not afterwards unless permitted by the Court, presents
a written statement containing the particulars of the debt sought
to be set-off.
(2)Effect of set-off.-The written statement shall have the same
effect as a plaint in a cross-suit so as to enable the Court to
pronounce a final judgment in respect both of the original claim
and of the set-off : but this shall not affect the lien, upon the
amount decreed, of any pleader in respect of the costs payable to
him under the decree.
(3) The Rules relating to a written statement by a defendant apply
to a written statement in answer to a claim of set-off.
Scope - The claim sought to be set off must be for an ascertained
sum of money and legally recoverable by the claimant. What is
more significant is that both the parties must fill the same
character in respect of the two claims sought to be set off or
adjusted. Apart from the Rule enacted in Rule 6 there exists a
right to set off, called equitable, independently of the provisions
of the Code. Such mutual debts and credits or cross demands, to
be available for extinction by way of equitable set off, must have
Page 104 of 401

arisen out of the same transaction or ought to be so connected in

their nature and circumstances as to make it inequitable for the
Court to allow the claim before it and leave the defendant high
and dry for the present unless he files a cross suit of his own.
When a plea in the nature of equitable set off is raised it is not
done as of right and the discretion lies with the Court to
entertain and allow such plea or not to do so. Union of India v.
Karam Chand Thapar and Brothers, (Coal Sales) Ltd., AIR 2004
SC 3024:
For the application of this Rule, the following ingredients must be
satisfied:
(a) The suit of the plaintiff must be a suit for recovery of money
(b) The defendant must have a monetary claim against the
plaintiff which is legally recoverable from the latter.
(c) The claim of set-off shall not exceed the pecuniary limits of the
jurisdiction of the Court in which such a claim is made.
(d) Lastly, both the parties shall fill the same character as they fill
in the plaintiff‘s suit.
Counter-claim by defendant (Order 8 Rule 6A)- (1) A
defendant in a suit may, in addition to his right of pleading a set-
off under Rule 6, set up, by way of counter-claim against the
claim of the plaintiff, any right or claim in respect of a cause of
action accruing to the defendant against the plaintiff either before
or after the filing of the suit but before the defendant has
delivered his defence or before the time limited for delivering his
defence has expired. whether such counter-claim is in the nature
of a claim for damages or not :
Page 105 of 401

Provided that such counter-claim shall not exceed the pecuniary

limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit
so as to enable the Court to pronounce a final judgment in the
same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in
answer to the counter-claim of the defendant within such period
as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by
the Rules applicable to plaints.
It has been held in 2020(2) SCC 394 Ashok Kumar Kalra vs. Wing
Commandar Surendra Agnihotri : Procedural justice is imbibed to
provide further impetus to substantive justice. Order 8 Rules 6
and 6A makes provision of set off and counter claim. Limitation
for filing a counter claim depends on the nature of claim and
governed by the period of limitation stipulated in Limitation Act –
Rule 6A does not specifically require that a counter claim has to
be filed along with WS – as long as the Court considers that it
would be proper to allow a counter claim by way of subsequent
pleadings, It is possible to file a counter claim after the filing of
written statement
Bollepanda P. Poonacha vs. K.M.Madapa (2008)13 SCC 179
Order VIII, Rule 6A –The provision of Order VIII Rule 6A must be
considered having regard to the aforementioned provisions. A
right to file counter claim is an additional right. It may be filed in
respect of any right or claim, the cause of action, however, must
accrue either before or after the filing of the suit but before the
defendant has raised his defence--A belated counter claim must
Page 106 of 401

be discouraged by the Court. –-A defendant can be allowed to

amend his written statement so as to enable him to elaborate his
defence or to take additional pleas in support of his case – The
Court in such matters has a wide discretion but the Court
exercises the discretionary jurisdiction in a judicious manner.
While doing so the statutory limitation shall not be overstepped.
Thus, one cause of action cannot be allowed to be substituted by
another and ordinarily, effect of an admission made in earlier
pleadings shall not be permitted to be taken away.
Set-off is distinguishable from counter-claim both in its
application and in its effect. In its application set-off is limited to
money claims, whereas counter-claim is not so limited. Any claim
in respect of which the defendant could bring an independent
action against the plaintiff may be enforced by counter-claim
subject only to the limitation that it must be such as can
conveniently be tried with the plaintiff‘s claim. Thus, not only
claims for money, but also other claims such as a claim for an
injunction or for specific performance or for a declaration may be
subject of a Counter-claim., M/s Anand Enterprises, Bangalore &
Ors. v. Syndicate Bank, Bangalore, AIR 1990 Kant. 175: 1989(2)
Kant
Counter-claim to be stated (Order 8 Rule 6B) Where any
defendant seeks to rely upon any ground as supporting a right of
counter-claim, he shall, in his written statement, state
specifically that he does so by way of counter-claim.
Exclusion of counter-claim (Order 8 Rule 6C)- Where a
defendant sets up a counter-claim and the plaintiff contends that
the claim thereby raised ought not to be disposed of by way of
Page 107 of 401

counter-claim but in an independent suit, the plaintiff may, at

any time before issues are settled in relation to the counter-
claim, apply to the Court for an order that such counter-claim
may be excluded, and the Court may, on the hearing of such
application make such order as it thinks fit.
Effect of discontinuance of suit (Order 8 Rule 6D)- If in any
case in which the defendant sets up a counter-claim, the suit of
the plaintiff is stayed, discontinued or dismissed, the counter-
claim may nevertheless be proceeded with.
Default of plaintiff to reply to counter-claim (Order 8 Rule
6E)- If the plaintiff makes default in putting in reply to the
counter-claim made by the defendant, the Court may pronounce
judgment against the plaintiff in relation to the counter-claim
made against him or make such order in relation to the counter-
claim as it thinks fit.
Relief to defendant where counter-claim succeeds (Order 8
Rule 6F)- Where in any suit a set-off or counter-claim is
established as defence against the plaintiff's claim and any
balance is found due to the plaintiff or the defendant, as the case
may be, the Court may give judgment to the party entitled to
such balance.
Rules relating to written statement to apply (Order 8 Rule
6G)- The Rules relating to a written statement by a defendant
shall apply to a written statement filed in answer to a counter-
claim.
Scope- Order 8, Rule 6A of the Code of Civil Procedure was
introduced by Amendment Act of 1976 but the very purpose of
introducing this new Rule on the recommendation of the Law
Page 108 of 401

Commission of India was to avoid multiplicity of the proceedings

in as much as giving right to the defendant to raise not only plea
of set off but also counter claim by setting up rights to himself
irrespective of the fact whether cause of action for counter claim
had accrued afterwards of the filing of the suit. Counter claim for
all intent and purposes is a suit filed by one figuring as
defendant in another suit filed by the plaintiff., Praveen Kumar
Sukhani v. Bishwanath Mahto, AIR 2006 Jhar.1
It is not necessary that nature of suit or relief claimed by plaintiff
as well as defendant must be same to treat plea of defendant as
counter-claim. Defendant‘s cause of action for counter-claim can
be different from cause of action of plaintiff‘s suit. Only limitation
in filing counterclaim is that it must be made before written
statement is filed or before date of filing of written statement
expires., Sabitri Nath and Ors vs. Sabitri Deb, AIR 2010 Gau.
169.
Can a counter-claim be directed solely against the co-
defendants be maintained.?—Normally, a counter-claim,
though based on a different cause of action than the one put in
suit by the plaintiff can be made. But a counterclaim has
necessarily to be directed against the plaintiff in the suit, though
incidentally or along with it, it may also claim relief against co-
defendants in the suit. But a counter-claim directed solely
against the co-defendants cannot be maintained. By filing a
counter-claim the litigation cannot be converted into some sort of
an inter-pleader suit., Rohit Singh v. State of Bihar (now State of
Jharkhand) AIR 2007 SC 10
Page 109 of 401

Limitations of right to counter-claim-A right to file counter

claim is an additional right. It may be filed in respect of any right
or claim, the cause of action therefore, however, must accrue
either before or after the filing of the suit but before the
defendant has raised his defence. Bollepanda P. Poonacha v.
K.M. Madapa .AIR 2008 SC 2003
What is laid down under Rule 6-A(1) is that a counter-claim can
be filed, provided the cause of action had accrued to the
defendant before the defendant had delivered his defence or
before the time limited for delivering his defence has expired,
whether such counter-claim is in the nature of a claim for
damages or not. Mahendra Kumar v. State of Madhya Pradesh,
AIR 1987 SC 1395
Looking at the scheme of Order VIII as amended by Act No.104 of
1976, there are three modes of pleading or setting up a counter-
claim in a civil suit. Firstly, the written statement filed under
Rule 1 may itself contain a counter-claim which in the light of
Rule 1 read with Rule 6A would be a counter-claim against the
claim of the plaintiff preferred in exercise of legal right conferred
by Rule 6A. Secondly, a counter-claim may be preferred by way
of amendment incorporated subject to the leave of the Court in a
written statement already filed. Thirdly, a counterclaim may be
filed by way of a subsequent pleading under Rule 9. In the latter
two cases the counter-claim though referable to Rule 6A cannot
be brought on record as of right but shall be governed by the
discretion vesting in the Court, either under Order VI, Rule 17 of
the CPC if sought to be introduced by way of amendment, or,
subject to exercise of discretion conferred on the Court under
Page 110 of 401

Order VIII, Rule 9 of the CPC if sought to be placed on record by

way of subsequent pleading. The purpose of the provision
enabling filing of a counter-claim is to avoid multiplicity of
judicial proceedings and save upon the Court‘s time as also to
exclude the inconvenience to the parties by enabling claims and
counter-claims, that is, all disputes between the same parties
being decided in the course of the same proceedings. If the
consequence of permitting a counter-claim either by way of
amendment or by way of subsequent pleading would be
prolonging of the trial, complicating the otherwise smooth flow of
proceedings or causing a delay in the progress of the suit by
forcing a retreat on the steps already taken by the Court, the
Court would be justified in exercising its discretion not in favour
of permitting a belated counter-claim. The framers of the law
never intended the pleading by way of counter-claim being
utilized as an instrument for forcing upon a reopening of the trial
or pushing back the progress of proceeding. Generally speaking,
a counter-claim not contained in the original written statement
may be refused to be taken on record if the issues have already
been framed and the case set down for trial, and more so when
the trial has already commenced. But certainly a counter-claim is
not entertainable when there is no written statement on record.
There being no written statement filed in the suit, the counter-
claim was obviously not set up in the written statement within
the meaning of Rule 6A. There is no question of such counter-
claim being introduced by way of amendment; for there is no
written statement available to include a counter claim therein.
Equally, there would be no question of a counter-claim being
Page 111 of 401

raised by way of ‗subsequent pleading‘ as there is no ‗previous

pleading‘ on record. In the present case, the defendant having
failed to file any written statement and also having forfeited his
right of filing the same the Trial Court was fully justified in not
entertaining the counter-claim filed by the defendant-appellant. A
refusal on the part of the Court to entertain a belated counter-
claim may not prejudice the defendant because in spite of the
counter-claim having been refused to be entertained he is always
at liberty to file his own suit based on the cause of action for
counter-claim., Ramesh Chand Ardawatiya v. Anil Panjwani, AIR
2003 SC 2508.
Maintainability of counter-claim When defendant comes with
counter-claim, he has to make specific statement about his claim
and must deposit Court fee required to be paid under the law.,
Rammani Ammal v. Susilammal, AIR 1991 Mad. 163.
Dismissal of suit by withdrawal. The counter-claim filed would
not get dismissed on that score. It shall have the same effect as a
cross-suit. No illegality in allowing the counter-claim filed to be
further proceeded with bearing a separate number., M.S.
Mohammed Yahya v. M.S. Mohammed Jaffer, 1989(1) Cur.C.C.
677 (Mad).
Exclusion of counter-claim & Payment of Court fee. -When
and at what stage counter-claim may be excluded. Before the
issues are settled in relation to counter-claim the plaintiff can
apply to the Court to exclude the counter-claim and permit the
defendant to pursue the same by way of separate suit. If a
counter claim is set up in the written statement and no Court fee
is paid, it is as good as filing a plaint without a Court fee.
Page 112 of 401

Provisions of Order 7, Rule 11 are attracted to a counter-claim. If

the Court fee is found to be insufficient the Court has to fix a
date for payment of Court fee., Smt. Paravathamma v. K.R.
Lokanath & Ors. AIR 1991 Kant 283.
Go to Index
Page 113 of 401

APPEARANCE OF PARTIES AND CONSEQUENCE OF

NON-APPEARANCE ORDER IX
Dismissal of suit where summons not served in
consequence of plaintiffs failure to pay cost (Order 9 Rule 2)
- Where on the day so fixed it is found that the summons has not
been served upon the defendant in consequence of the failure of
the plaintiff to pay the Court-fee or postal charges (if any)
chargeable for such service, or failure to present copies of the
plaint or concise statements, as required by Rule 9 of Order VII,
the Court may make an order that the suit be dismissed :
Provided that no such order shall be made, if notwithstanding
such failure, the defendant attends in person or by agent when
he is allowed to appear by agent on the day fixed for him to
appear and answer.
Where neither party appears suit to be dismissed (Order 9
Rule 3)—Where neither party appears when the suit is called on
for hearing, the Court may make an order that the suit be
dismissed.
Plaintiff may bring fresh suit or Court may restore suit to
file (Order 9 Rule 4)—Where a suit is dismissed under Rule 2 or
Rule 3, the plaintiff may (subject to the law of limitation) bring a
fresh suit; or he may apply for an order to set the dismissal
aside, and if he satisfies the Court that there was sufficient
cause for[such failure as is referred to in Rule 2], or for his non-
appearance, as the case may be, the Court shall make an order
setting aside the dismissal and shall appoint a day for proceeding
with the suit.
Page 114 of 401

Scope- If a suit is dismissed under Order 9, Rule 3 of the C.P.C.

in the absence of both the parties, the Court has jurisdiction or
power to restore the suit if sufficient cause is shown, without
issuing notice to the opposite side. Even if notice was issued to
the opposite side, held that it was not necessary to frame an
issue and then to try this matter for couple of years and then to
find out whether the suit is to be restored or not. This matter
should have been decided merely on affidavits in the shortest
possible time. Pritam Chand v. Shamsher Singh & Ors., AIR
1986 P&H 300
The Explanation of Rule 2, Order 17, permits the Court in its
discretion to proceed with a case where substantial portion of
evidence of any party has already been recorded and such party
fails to appear on any day to which the hearing of the suit is
adjourned. As the provision itself shows, discretionary power
given to the Court is to be exercised in given circumstances. For
application of the provision, the Court has to satisfy itself that (a)
substantial portion of the evidence of any party has been already
recorded; (b) such party has failed to appear on any day and (c)
the day is one to which the hearing of the suit is adjourned. Rule
2 permits the Court to adopt any of the modes provided in Order
9 or to make such order as he thinks fit when on any day to
which the hearing of the suit is adjourned, the parties or any of
them fail to appear. The Explanation is in the nature of an
exception to the general power given under the Rule, conferring
discretion on the Court to act under the specified circumstance,
i.e., where evidence or a substantial portion of evidence of any
party has been already recorded and such party fails to appear
Page 115 of 401

on the date to which hearing of the suit has been adjourned. If

such is the factual situation, the Court may in its discretion
deem as if such party was present. Under Order 9, Rule 3, the
Court may make an order directing that the suit be dismissed
when neither party appears when the suit is called on for
hearing. There are other provisions for dismissal of the suit
contained in Rules 2, 6 and 8. The crucial words in the
Explanation are ‗proceed with the case‘. Therefore, on the facts, it
has to be seen in each case as to whether the Explanation was
applied by the Court or not. In Rule 2, the expression used is
―make such order as it deems fit‖, as an alternative to adopting
one of the modes directed in that behalf by Order 9. Under Order
17, Rule 3(b), only course open to the Court is to proceed under
Rule 2. When a party is absent, explanation thereto gives a
discretion to the Court to proceed under Rule 3 even if a party is
absent. But such a course can be adopted only when the
absentee party has already led evidence or a substantial part
thereof. If the position is not so, the Court has no option but to
proceed as provided in Rule 2. Rules 2 and 3 operate in different
and distinct sets of circumstances. Rule 2 applies when an
adjournment has been generally granted and not for any special
purpose. On the other hand, Rule 3 operates where the
adjournment has been given for one of the purposes mentioned
in the Rule. While Rule 2 speaks of disposal of the suit in one of
the specified modes, Rule 3 empowers the Court to decide the
suit forthwith. The basic distinction between the two Rules,
however, is that in the former, any party has failed to appear at
the hearing, while in the latter the party though present has
Page 116 of 401

committed any one or more of the enumerated defaults.

Combined effect of the Explanation to Rule 2 and Rule 3 is that a
discretion has been conferred on the Court. The power conferred
is permissive and not mandatory. The Explanation is in the
nature of a deeming provision, when under given circumstances,
the absentee party is deemed to be present. The crucial
expression in the Explanation is ―where the evidence or a
substantial portion of the evidence of a party‖. There is a positive
purpose in this legislative expression. It obviously means that the
evidence on record is sufficient to substantiate the absentee
party‘s stand and for disposal of the suit. The absentee party is
deemed to be present for this obvious purpose. The Court while
acting under the Explanation may proceed with the case if that
prima facie is the position. The Court has to be satisfied on the
facts of each case about this requisite aspect. It would be also
imperative for the Court to record its satisfaction in that
perspective. It cannot be said that the requirement of substantial
portion of the evidence or the evidence having been led for
applying the Explanation is without any purpose. If the evidence
on record is sufficient for disposal of the suit, there is no need for
adjourning the suit or deferring the decision., B. Najakiramaiah
Chetty v. A. K. Parthasarthi, AIR 2003 SC 3527 : 2003 (5) SCC
641
In cases of dismissal of suit in default when the party approaches
the Court within statutory period, for restoration, discretion
should be exercised, normally in favour of the applicant. G.P.
Srivastava v. R.K. Raizada and Ors., AIR 2000 SC 1221
Page 117 of 401

Limitation- Dismissal of suit in default. Application for

restoration is maintainable and limitation for that purpose will be
governed by Article 137 of Limitation Act, which is, 30 days from
the date of the order.
Dismissal of suit where plaintiff after summons returned
unserved, fails for seven days to apply for fresh summons
(Order 9 Rule 5) - (1) Where after a summons has been issued to
the defendant, or to one of several defendants, and returned
unserved the plaintiff fails, for a period of seven daysfrom the
date of the return made to the Court by the officer ordinarily
certifying to the Court returns made by the serving officers, to
apply for the issue of a fresh summons the Court shall make an
order that the suit be dismissed as against such defendant,
unless the plaintiff has within the said period satisfied the Court
that-
(a) he has failed after using his best endeavours to discover the
residence of the defendant, who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time, in
which case the Court may extend the time for making such
application for such period as it thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation)
bring a fresh suit.
Scope : Vishwanath Satwaji Gaikwad vs. Laxman s/o Abaji
Kavale & Others,AIR 2000 Bom 307 Order IX, Rule 5(1), (2) and
Section 151-Dismissal of suit under Order IX, Rule 5 for failure
to take steps for service of summons - Remedy under sub-Rule
(2) to file fresh suit subject to law of limitation is provided-
Page 118 of 401

Exercise of inherent jurisdiction of Court to set aside order of

dismissal of suit is impliedly prohibited.-Order IX, Rule 5(1) of
the Civil Procedure Code provides that when the summons is
returned unserved, the plaintiff has to take steps within the
period of two months (Now after amendment one week) for
issuing fresh summons to the defendant or he has to apply for
extension of time within the said period of two months on any of
the grounds mentioned in clauses (a), (b) and (c). However, if the
plaintiff fails to take steps for issuance of fresh summons, or to
make an application for extension of time within the period of two
months, the Court has to dismiss the suit against such
defendant on whom summons could not be served. Sub-Rule (2)
of Rule 5 of Order IX, makes a clear provision that the plaintiff
can file a fresh suit subject to the law of limitation. That means,
the plaintiff is not without any remedy. Because of the dismissal
of the suit, under Order IX, Rule 5 of the Code, the situation is
brought up like this, that there is no suit instituted against such
defendant and, therefore, the provisions of sub-Rule (2) make it
clear that the plaintiff can file a fresh suit subject to the
provisions of law of limitation. Because of this peculiar provision,
under sub-Rule (1) and sub-Rule (2) of Rule 5 of Order IX of the
Code, the Court cannot exercise inherent jurisdiction and set
aside the order of dismissal of the suit. The provisions of Order
IX, Rule 5, sub-Rule (1) and sub-Rule (2), prohibit the Court from
exercising inherent jurisdiction. A remedy is provided under sub-
Rule (2), in case, the suit is dismissed by the Court. Thus, there
is implied prohibition against the use of inherent jurisdiction of
the Court.
Page 119 of 401

Procedure when only plaintiff appears (Order 9 Rule 6) - (1)

Where the plaintiff appears and the defendant does not appear
when the suit is called on for hearing, then-
(a) When summons duly served.-if it is proved that the
summons was duly served, the Court may make an order that
the suit shall be heard ex parte.
(b) When summons not duly served.-if it is not proved that the
summons was duly served, the Court shall direct a second
summons to be issued and served on the defendant;
(c) When summons served but not in due time.-if it is proved
that the summons was served on the defendant, but not in
sufficient time to enable him to appear and answer on the day
fixed in the summons, the Court shall postpone the hearing of
the suit to future day to be fixed by the Court, and shall direct
notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiffs' default that the summons
was not duly served or was not served in sufficient time, the
Court shall order the plaintiff to pay the costs occasioned by the
postponement.
Procedure where defendant appears on day of adjourned
hearing and assigns good cause for previous non-appearance
(Order 9 Rule 7)- Where the Court has adjourned the hearing of
the suit ex-parte and the defendant, at or before such hearing,
appears and assigns good cause for his previous non-
appearance, he may, upon such terms as the Court directs as to
costs or otherwise, be heard in answer to the suit as if he had
appeared on the day, fixed for his appearance.
Page 120 of 401

Scope - The provision contained in Order 9 Rule 6 CPC is

pertinent. It contemplates three situations when on a date fixed
for hearing the plaintiff appears and the defendant does not
appear and three courses to be followed by the Court depending
on the given situation. The three situations are : (i) when
summons duly served, (ii) when summons not duly served, and
(iii) when summons served but not in due time. In the first
situation, when it is proved that the summons was duly served,
the Court may make an order that the suit be heard ex parte. The
provision casts an obligation on the Court and simultaneously
invokes a call to the conscience of the Court to feel satisfied in
the sense of being ―proved‖ that the summons was duly served
when and when alone, the Court is conferred with a discretion to
make an order that the suit be heard ex parte. The date
appointed for hearing in the suit for which the defendant is
summoned to appear is a significant date of hearing requiring a
conscious application of mind on the part of the Court to satisfy
itself on the service of summons. Any default or casual approach
on the part of the Court may result in depriving a person of his
valuable right to participate in the hearing and may result in a
defendant suffering an ex parte decree or proceedings in the suit
wherein he was deprived of hearing for no fault of his., Sushil
Kumar Sabharwal v. Gurpreet Singh, AIR 2002 SC 2370.
Every Judge in dealing with an ex parte case should take good
care to see that the plaintiff‘s case is at least prima facie proved.
The mere absence of the defendant does not of itself justify the
presumption that the plaintiff case is true. If notwithstanding the
plaintiff failing to prove his case, a decree is passed, the
Page 121 of 401

defendant is entitled ex-debitio justiciae to have such a decree set

aside., Gwalior Municipality v. Moti Lal, AIR 1977M.P. 182
Application of Rule- Provision of Order 9 Rule 7 postulates
application till suit is at stage of hearing and, thus, when Court
has adjourned suit for pronouncing the judgment, application
under Order 9 Rule 7 would not be maintainable., Bhanu Kumar
Jain v. Archana Kumar, AIR 2005 SC 626.
Order 9, Rule 13 vs. Order 9, Rule 7
There is distinction between applications which are filed under
Order 9, Rule 13 and those filed under Order 9, Rule 7, in that
while the former seeks cancellation of decrees finally disposing of
suits, the latter seeks cancellation of only orders setting the
applicant ex parte, thus, preventing him from participating in
further proceedings in the suit. It is also true that unlike
applications under Order 9, Rule 13, there is no article in the
Limitation Act providing any specific period of limitation for
applications under Order IX Rule 7. Such applications will be
governed by Article 137, the residuary article which prescribes a
period of three years. C. L. Cleetus v. South Indian Bank Ltd.,
AIR 2007 Kerala 301.
Procedure where defendant only appears (Order 9 Rule 8) -
Where the defendant appears and the plaintiff does not appear
when the suit is called on for hearing, the Court shall make an
order that the suit be dismissed, unless the defendant admits
the claim or part thereof, in which case the Court shall pass a
decree against the defendant upon such admission, and, where
part only of the claim has been admitted, shall dismiss the suit
so far as it relates to the remainder.
Page 122 of 401

Decree against plaintiff by default bars fresh suit.(Order 9

Rule 9)- (1) Where a suit is wholly or partly dismissed under Rule
8, the plaintiff shall be precluded from bringing a fresh suit in
respect of the same cause of action. But he may apply for an
order to set the dismissal aside, and if he satisfies the Court that
there was sufficient cause for his non-appearance when the suit
was called on for hearing, the Court shall make an order setting
aside the dismissal upon such terms as to costs or otherwise as
it thinks fit. and shall appoint a day for proceeding with suit.
(2) No order shall be made under this Rule unless notice of the
application has been served on the opposite party.
Scope- An order dismissing suit for non-production of evidence
without going into pleadings or material on record is an order
under Order 9, Rule 8 and not under Order 17, Rule 3(a) and,
thus, an application filed for restoration under Order 9, Rule 9
ought not to have been dismissed as not maintainable., Ashok
Kumar Singh v. Prabhat Kumar Ghose, AIR 2008 Jhar. 76.
Where the suit is dismissed under Rule 8 for non-appearance of
the plaintiff, though the defendant is present, it will not be
possible for the plaintiff to bring a fresh suit in respect of the
same cause of action on account of the prohibitions contained in
sub-Rule (1) of Rule 9 of Order 9. But it will be open to the Court
to recall the order and restore the suit. New India Assurance Co.
Ltd. v. R. Srinivasan, 2000(3) SCC 242
Limitation for filing application for restoration of suit

dismissed in default.—An application for restoration of suit
dismissed in default, is required to be filed under Article 122 of
Page 123 of 401

the Limitation Act, 1963 within 30 days of dismissal and not

from the date of knowledge. Sau. Madhavi S.Kulkarni v. Vishram
S. Bhakre AIR 2007 Bom. 61
Nature of the bar- Suraj Ratan Thirani v. Azamabad Tea Co.,

A.I.R. 1965 S.C. 295 In this case Their Lordships of the
Hon’ble Supreme Court laid down:
―We are not however impressed by the argument that the
bar imposed by O.9, R.9 creates merely a personal bar or
estoppel against the particular plaintiff suing on the same cause
of action and leaves the matter at large for those claiming under
him. Beyond the absence in O.9, R.9 of the words referring ―to
those claiming under the plaintiff‖ there is nothing to warrant
this argument. It has neither principles nor logic to commend it.
The Rule would obviously have no value and the bar imposed by
it would be rendered meaningless if the plaintiff whose suit was
dismissed for default had only to transfer the property to another
and the latter was able to agitate rights which his vendor was
precluded by law from putting forward.‖
Non-applicability of the Rule- A judgment in probate
proceedings operates as a judgment in rem unlike a judgment in
an ordinary suit which operates inter parties and hence it will not
be appropriate to apply the provisions of this order which are
intended to apply to ordinary suits to applications for probate or
letters of administration. Sadashiv Rao v. Anand Rao, AIR 1973
Bom 284
Page 124 of 401

Consequence of non-attendance, without sufficient cause

shown, of party ordered to appear in person (Order 9 Rule
12) -Where a plaintiff or defendant, who has been ordered to
appear in person, does not appear in person, or show sufficient
cause to the satisfaction of the Court for failing so to appear, he
shall be subject to all the provisions of the foregoing Rules
applicable to plaintiffs and defendants, respectively who do not
appear.
Scope of Rule- Rule 1 of Order III of the Code of Civil Procedure,
1908 (‗Code‘ for short) states that a party may appear in Court
either in person or by his recognized agent or by a pleader on his
behalf. The proviso to the said Rule, however, declares that any
such appearance shall, if the Court so directs, be made by the
party in person. Likewise, Rule 12 of Order IX provides that
where a plaintiff or defendant, who was ordered to appear in
person, does not appear in person, or show sufficient cause to
the satisfaction of the Court for failing so to appear, he shall be
subject to all the provisions of the said Order applicable to
plaintiffs and defendants respectively who fails to appear. It is
thus clear that in appropriate cases, a Civil Court may direct a
party to the suit—plaintiff or defendant, to appear in person.
Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083.
Go to Index
Page 125 of 401

EXAMINATION OF PARTIES BY THE COURT & ADR

Ascertainment whether allegations in pleadings are admitted
or denied (Order 10 Rule 1) — At the first hearing of the suit
the Court shall ascertain from each party or his pleader whether
he admits or denies such allegations of fact as are made in the
plaint or written statement (if any) of the opposite party, and as
are not expressly or by necessary implication admitted or denied
by the party against whom they are made. The Court shall
record such admissions and denials.
Direction of the Court to opt for any one mode of

alternative dispute resolution(Order 10 Rule 1A) —After
recording the admissions and denials, the Court shall direct the
parties to the suit to opt either mode of the settlement outside
the Court as specified in sub-Section (1) of Section 89. On the
option of the parties, the Court shall fix the date of appearance
before such forum or authority as may be opted by the parties.
Appearance before the conciliatory forum or
authority(Order 10 Rule 1B)—Where a suit is referred under
Rule 1A, the parties shall appear before such forum or authority
for conciliation of the suit.
Appearance before the Court consequent to the failure of
efforts of conciliation.(Order 10 Rule 1C)—Where a suit is
referred under Rule 1A, and the presiding officer of conciliation
forum or authority is satisfied that it would not be proper in the
interest of justice to proceed with the matter further, then, it
Page 126 of 401

shall refer the matter again to the Court and direct the parties to
appear before the Court on the date fixed by it.
Sec 89. Settlement of disputes outside the Court.—(1) Where
it appears to the Court that there exist elements of a settlement
which may be acceptable to the parties, the Court shall formulate
the terms of settlement and give them to the parties for their
observations and after receiving the observations of the parties,
the Court may reformulate the terms of a possible settlement and
refer the same for :—
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement through Lok Adalat:
or
(d) mediation.
(2) Were a dispute has been referred— (a) for arbitration or
conciliation, the provisions of the Arbitration and Conciliation
Act, 1996 (26 of 1996) shall apply as if the proceedings for
arbitration or conciliation were referred for settlement under the
provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat
in accordance with the provisions of sub-Section (1) of Section 20
of the Legal Services Authority Act, 1987 (39 of 1987) and all
other provisions of that Act shall apply in respect of the dispute
so referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a
suitable institution or person and such institution or person
shall be deemed to be a Lok Adalat and all the provisions of the
Legal Services Authority Act, 1987 (39 of 1987) shall apply as if
Page 127 of 401

the dispute were referred to a Lok Adalat under the provisions of

that Act;
(d) for mediation, the Court shall effect a compromise between
the parties and shall follow such procedure as may be prescribed.
As per JCCR Rule 82-The Court after recording the admission
and denial and before the recording of evidence, shall direct the
parties to the Suit/ Proceeding to opt either mode of settlement
out side the Court and may refer the case to :-
(a) Arbitrator
(b) Conciliator
(c) Judicial settlement including settlement through Lok Adalat
(d) Mediator
(ii)In cases so referred to above, the Court shall give the
certificate to the plaintiff authorizing him to receive back the full
Court fee paid from the Deputy Commissioner of the
district.(Amended Section 16 of the Court Fee Act, 1870)
(iii) If the matter is referred to the mediator so appointed by the
parties, or from the panel of mediators, as approved by
Jharkhand High Court in terms of the Civil Procedure Mediation
Rules, 2003 as contained in Part II of Jharkhand High Court
Mediation Rules ; the procedure laid down in this Rule shall be
followed during mediation proceeding and the result thereof shall
be submitted to the referral Court which shall proceed further
depending upon the nature of result as
contained in Rule 25. Provided further that consequent to the
failure of efforts of conciliation or other modes of settlement as
provided in Section 89 and also under order 10 Rule 1(C) of the
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Code of Civil Procedure between the parties, the Court shall

frame issues on the next day fixed in the case.
Oral examination of party, or companion of party (Order 10

Rule 2)—(1) At the first hearing of the suit, the Court— (a) shall,
with a view to elucidating matters in controversy in the suit
examine orally such of the parties to the suit appearing in person
or present in Court, as it deems fit; and (b) may orally examine
any person, able to answer any material question relating to the
suit, by whom any party appearing in person or present in Court
or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally examine any
party appearing in person or present in Court, or any person,
able to answer any material question relating to the suit, by
whom such party or his pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course of an
examination under this Rule questions suggested by either party.
Substance of examination to be written (Order 10 Rule 3)—
The substance of the examination shall be reduced to writing by
the Judge, and shall form part of the record.
Consequence of refusal or inability of pleader to answer

(Order 10 Rule 4)—(1) Where the pleader of any party who
appears by a pleader or any such person accompanying a pleader
as is referred to in Rule 2, refuses or is unable to answer any
material question relating to the suit which the Court is of
opinion that the party whom he represents ought to answer, and
is likely to be able to answer if interrogated in person, the Court
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may postpone the hearing of the suit to a day not later than
seven days from the date of first hearing and direct that such
party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person
on the day so appointed, the Court may pronounce judgment
against him, or make such order in relation to the suit as it
thinks fit.
Scope - Judges who refer the cases for settlement through any of
the ADR methods are known as referral judges. The role of a
Referral Judge is of great significance in Court-referred
mediation. All cases are not suitable for mediation. Only
appropriate cases which are suitable for mediation should be
referred for mediation. Success of mediation will depend on the
proper selection and reference of only suitable cases by referral
judges.
Stage of Reference - The appropriate stage for considering
reference to ADR processes in civil suits is after the completion of
pleadings and before framing the issues. If for any reason, the
Court did not refer the case to ADR process before framing
issues, nothing prevents the Court from considering reference
even at a later stage.
However, considering the possibility of allegations and counter
allegations vitiating the atmosphere and causing further strain
on the relationship of the parties, in family disputes and
matrimonial cases the ideal stage for mediation is immediately
after service of notice on the respondent and before the
filing of objections/written statements by the respondent. An
order referring the dispute to ADR processes may be passed only
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in the presence of the parties and/ or their authorized

representatives
Consent - Under Section 89 CPC, consent of all the parties to the
suit is necessary for referring the suit for arbitration where there
is no pre-existing arbitration agreement between the parties.
Similarly, the Court can refer the case for conciliation under
Section 89 CPC only with the consent of all the parties. However,
in terms of Section 89 CPC and the judicial pronouncements,
consent of the parties is not mandatory for referring a case for
Mediation, Lok Adalat or Judicial Settlement. The absence of
consent for reference does not affect the voluntary nature of the
mediation process as the parties still retain the freedom to agree
or not to agree for settlement during mediation.
Choice of Cases for reference - As held by the Supreme Court
of India in Afcons Infrastructure Ltd. and Anr. vs. Cherian
Varkey Construction Co. Pvt. Ltd. and Ors., (2010) 8 SCC 24,
having regard to their nature, the following categories of cases
are normally considered unsuitable for ADR process:
i. Representative suits under Order I Rule 8 CPC which involve
public interest or interest of numerous persons who are not
parties before the Court.
ii. Disputes relating to election to public offices.
iii. Cases involving grant of authority by the Court after enquiry,
as for example, suits for grant of probate or letters of
administration.
iv. Cases involving serious and specific allegations of fraud,
fabrication of documents, forgery, impersonation, coercion, etc.
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v. Cases requiring protection of Courts, as for example, claims

against minors, deities and mentally challenged and suits for
declaration of title against the Government.
vi. Cases involving prosecution for criminal offences.
All other suits and cases of civil nature in particular the following
categories of cases (whether pending in Civil Courts or other
special tribunals/forums) are normally suitable for ADR
processes:
i)All cases relating to trade, commerce and contracts, including,
disputes arising out of contracts(including all money suits),
disputes relating to specific performance, disputes between
suppliers and customers, disputes between bankers and
customers, disputes between developers/builders and customers,
disputes between landlords and tenants/licensor and licensees,
disputes between insurer and insured.
ii)All cases arising from strained or soured relationships,
including, disputes relating to matrimonial causes, maintenance,
custody of children, disputes relating to partition/division among
family members/coparceners/co-owners and ,disputes relating to
partnership among partners.
iii)All cases where there is a need for continuation of the pre-
existing relationship in spite of the disputes, including ,disputes
between neighbours (relating to easementary rights,
encroachments, nuisance, etc.), disputes between employers and
employees, disputes among members of
societies/associations/apartment owners‘ associations.
iv) All cases relating to tortious liability, including claims for
compensation in motor accidents/other accidents; and
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v) All consumer disputes, including- disputes where a trader/

supplier/manufacturer/service provider is keen to maintain his
business/professional reputation and credibility or product
popularity.
The above enumeration of ―suitable‖ and ―unsuitable‖
categorisation of cases is not exhaustive or rigid. They are
illustrative which can be subjected to just exceptions or addition
by the Courts/tribunals exercising its jurisdiction/discretion in
referring a dispute/case to an ADR process.
In spite of the categorization mentioned above, a referral judge
must independently consider the suitability of each case with
reference to its facts and circumstances.
Referral Order - The mediation process is initiated through a
referral order. The referral judge should understand the
importance of a referral order in the mediation process and
should not have a casual approach in passing the order. The
referral order is the foundation of a Court-referred mediation.
An ideal referral order should contain among other things details
like name of the referral judge, case number, name of the parties,
date and year of institution of the case, stage of trial, nature of
the dispute, the statutory provision under which the reference is
made, next date of hearing before the referral Court, whether the
parties have consented for mediation, name of the
institution/mediator to whom the case is referred for mediation,
the date and time for the parties to report before the institution/
mediator, the time limit for completing the mediation, quantum
of fee/remuneration if payable and contact address and
telephone numbers of the parties and their advocates.
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Role after conclusion of mediation - The referral judge plays a

crucial role even after the conclusion of mediation. Even though
the dispute was referred for mediation the Court retains its
control and jurisdiction over the matter and the result of
mediation will have to be placed before the Court for passing
consequential orders. Before considering the report of the
mediator the referral judge shall ensure the presence of the
parties or their authorized representative in the Court .If there is
no settlement between the parties, the Court proceedings shall
continue in accordance with law. In order to ensure that the
confidentiality of the mediation process is not breached, the
referral judge should not ask for the reasons for failure of the
parties to arrive at a settlement. Nor should the referral judge
allow the parties or their counsel to disclose such reasons to the
Court. However, it is open to the referral judge to explore the
possibility of a settlement between the parties. To protect
confidentiality of the mediation process, there should not be any
communication between the referral judge and the mediator
regarding the mediation during or after the process of mediation
.If the dispute has been settled in mediation, the referral judge
should examine whether the agreement between the parties is
lawful and enforceable. If the agreement is found to be unlawful
or unenforceable, it shall be brought to the notice of the parties
and the referral judge should desist from acting upon such
agreement. If the agreement is found to be lawful and
enforceable, the referral judge should act upon the terms and
conditions of the agreement and pass consequential orders. To
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overcome any technical or procedural difficulty in implementing

the settlement between the parties, it is open to the referral judge
to modify or amend the terms of settlement with the consent of
the parties.
Important Guidelines for Referral Judges - 1) As per Section
89 and Rule 1-A of Order 10, the Court should explore the
possibility of referral to ADR processes after the pleadings are
complete and before framing the issues when the case is taken
up for preliminary hearing for examination of parties under Order
10 of the Code. If for any reason, the Court could not consider
and refer the matter to ADR processes before framing issues, the
case can be referred even after framing of the issues. In family
disputes or matrimonial cases, the ideal stage for mediation
would be immediately after service of respondent and before filing
of objections/written statements. In such cases, the relationship
between concerned parties becomes hostile on account of the
various allegations in the petition. The hostility would be further
aggravated by the counter-allegations made in written statement
or objections.
2)After completion of the pleadings and before framing of the
issues, the Court shall fix a preliminary hearing for appearance
of parties to acquaint itself with the facts of the case and the
nature of the dispute between the parties.
3) The Court should first consider whether the case is not fit to
be referred to any ADR processes. If the case is not suitable for
any ADR process then Court should record a brief order referring
to the nature of the case and why it is not fit for reference to ADR
processes. If case can be referred to ADR processes, the Court
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should explain the choice of five ADR processes to the parties to

enable them to exercise their option.
4) The Court should first ascertain regarding choice of parties for
arbitration and should inform the parties that arbitration is an
adjudicatory process and reference to arbitration will
permanently take the suit outside the ambit of the Court.
5) If the parties are not agreeable for arbitration, the Court
should ascertain whether the parties are agreeable for reference
to conciliation which will be governed by the provisions of the
Arbitration and Conciliation Act. If all the parties agree for
reference to conciliation and agree upon the conciliator/s, the
Court can refer the matter to conciliation in accordance with
Section 64 of the Arbitration and Conciliation Act.
6) If parties are not agreeable for arbitration and conciliation, the
Court after taking into consideration the preferences/options of
parties, refer the matter to any one of the other three other ADR
processes:
(a) Lok Adalat;
(b) Mediation by a neutral third party facilitator or mediator; and
(c) A judicial settlement, where a Judge assists the parties to
arrive at a settlement.
7) If the case is simple or relating to a matter where the legal
principles are clearly settled and there is no personal animosity
between the parties, the Court may refer the matter to Lok-
Adalat.
8) If the case is complicated and requires negotiations, the Court
should refer the case to mediation. If the facility of mediation is
not available or where the parties opt for the guidance of a Judge
Page 136 of 401

to arrive at a settlement, the case can be referred to another

Judge for attempting settlement.
9) If ADR process is not successful, then Court shall proceed with
hearing of the case. If case is settled, then Court shall examine
the settlement and shall make a decree in terms of it keeping in
view the legal principles of Order 23 Rule 3 of the Code.
10) If the settlement includes terms and conditions which are not
the subject matter of the suit, the settlement shall be governed by
Section 74 of the AC Act (if it is a Conciliation Settlement) or
Section 21 of the Legal Services Authorities Act, 1987 (if it is a
settlement by a Lok-Adalat or by mediation which is a deemed
Lok-Adalat).
11) If any term of the settlement is ex-facie illegal or
unenforceable, the Court should draw the attention of parties
thereto to avoid further litigations and disputes about
executability.
12) The Court shall record the mutual consent of the parties if
the case is referred to arbitration or conciliation. If the reference
is to any other ADR process, the Court should briefly record that
having regard to the nature of dispute, the case deserves to be
referred to Lok-Adalat, or mediation or judicial settlement, as the
case may be. The Referral Order should not be an elaborate
order.
13)The requirement in Section 89(1) that the Court should
formulate or reformulate the terms of settlement would only
mean that Court has to briefly refer to the nature of dispute and
decide upon the appropriate ADR process.
Page 137 of 401

14) If the Presiding Judge of the case assists the parties and if
settlement negotiations fail, he should not deal with the
adjudication of the matter, to avoid apprehensions of bias and
prejudice. It is, therefore, advisable to refer cases proposed for
Judicial Settlement to another Judge.
15) If the Court refers the case to an ADR process (other than
Arbitration), it should keep track of the case by fixing a hearing
date for the ADR Report. The period allotted for the ADR process
should not exceed from the period as permitted under applicable
Mediation Rules .The Court should take precaution that under no
circumstances the ADR process shall be used as a tool in the
hands of an unscrupulous litigant to delay the trial of the case.
16)The Court should not send the original judicial record of the
case at the time of referring the case for an ADR forum, however
only copies of relevant papers of the judicial record should be
annexed with referral order. If the case is referred to a Court
annexed Mediation Center which is under the exclusive control
and supervision of a Judicial Officer, the original file may be
made available wherever necessary.
Go to Index
Page 138 of 401

SETTLEMENT OF ISSUES
Framing of issues(Order 14 Rule 1)—
(1) Issues arise when a material proposition of fact or law is
affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or fact
which a plaintiff must allege in order to show a right to sue or a
defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by
the other shall form the subject of distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading
the plaint and the written statements if any, and 1 [after
examination under Rule 2 of Order X and after hearing the
parties or their pleaders], ascertain upon what material
propositions of fact or of law the parties are at variance, and shall
thereupon proceed to frame and record the issues on which the
right decision of the case appears to depend.
(6) Nothing in this Rule requires the Court to frame and record
issued where the defendant at the first hearing of the suit makes
no defence.
Court to pronounce judgment on all issues (Order 14 Rule

2)—(1) Notwithstanding that a case may be disposed of on a
preliminary issue, the Court shall, subject to the provisions of
sub-Rule (2), pronounce judgment on all issues.
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(2) Where issues both of law and of fact arise in the same suit,
and the Court is of opinion that the case or any part thereof may
be disposed of on an issue of law only, it may try that issue
first if the issue relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement
of the other issues until after that issue has been determined,
and may deal with the suit in accordance with the decision on
that issue.
Scope - Issue of jurisdiction as a preliminary issue - Order
XIV, Rule 2, C.P.C. is a relevant provision under which an issue
could be framed as a preliminary issue. Looking to the language
of Order XIV, Rule 2, C.P.C. it is clear that the Legislature has
left a discretion on the Court to come to the conclusion regarding
framing of the preliminary issue. No doubt in doing so there is a
rider on the Court that a preliminary issue should be an issue of
law only and that relates to the jurisdiction of the Court, or a bar
to the suit created by any law for the time being in force. Under
this, the Court has been given discretion either to decide the
issue of jurisdiction as a preliminary issue or decide along with
other issues, Ms. Ram Babu Singhal Enterprises (P) Ltd. v. M/s.
Digamber Parshad Kirti Prashad, AIR 1988 All. 299
Order 14, Rule 2(1), C.P.C. requires the Court to pronounce

judgment on all issues. However, there is an exception in sub-
Rule 2 of Rule 2, which empowers the Court to dispose of a suit
on a preliminary issue, if such issue is an issue of law only and
Page 140 of 401

relates to the jurisdiction of the Court or a bar to the suit

created by any law for the time being in force. Section 3 of the
Limitation Act imposes a duty on the Court to ascertain as to
whether a suit filed is within the time and empowers the Court to
dismiss such suit barred by time although the limitation has not
been set up as a defence. The Limitation Act, 1963 prescribes the
period of limitations for filing different kinds of suits. Therefore, it
is not that the question of limitation cannot be decided as
preliminary issue at all. However, if in the opinion of the Court
while deciding such question of limitation it requires to go into
the question of fact related to the plea of limitation, the Court no
doubt cannot decide such issue as a preliminary issue, the same
being the mixed question of law and facts but when the
averments made in the plaint is clear and from reading of such
averments and by accepting the same as true, if it is evident that
the suit is barred by time, the Court no doubt can decide the
question of limitation as preliminary issue., Lalchand Sha v.
Kalabati Devi, 2007 SCC OnLine Gau 169 (2008) 2 AIR Jhar R
(NOC 421) 158.
Normally the Court should pronounce judgment on all issues and

piecemeal trial of a suit should be avoided. In sub-Rule (2) of
Rule 2 , a discretion has been conferred on the Court to treat any
issue of law as preliminary issue. In this regard a departure has
been made from the earlier provisions and the word ―shall‖ which
was used in the earlier provision and which indicated that the
Court has used in the earlier provisions and which indicated that
the Court was obliged to treat and decide an issue of law, as a
Page 141 of 401

preliminary issue has been replaced by the word ―may‖ in the

amended provision which indicated that it is in the discretion of
the Court to try an issue of law as preliminary issue. Sub-Rule (2)
also further curtails the power of the Court in the matter of the
decided an issue which related to the jurisdiction of the Court or
to a bar to the suit created by a law for the time being in force.
This would show that the intention of legislature, in introducing
the amendment in Order 14, Rule 2 of the Code is to restrict the
power of the Court in the matter of decided an issue of law as a
preliminary issue., Panchayat Shri Digamber Jain Mandir,
Baguwala v. Shri Chiranji Lal Patni, 1989(1) C.C.C. 395 Raj.
Sub-Rule (2) of Rule 2 of Order 14 of the Civil Procedure Code

lays down that where issues both of law and of fact arise in the
same suit, and the Court is of opinion that the case or any part
thereof may be disposed of on an issue of law only, it may try
that issue first if that issue relates to (a) the jurisdiction of the
Court, or (b) a bar to the suit created by any law for the time
being in force. The provisions of this Rule came up for
consideration before the Hon‘ble Supreme Court in Major S. S.
Khanna vs. Brig. F.J. Dillon AIR 1964 SC 497, and it was held as
under :- ―Under O. 14, R. 2 where issues both of law and of fact
arise in the same suit, and the Court is of opinion that the case
or any part thereof may be disposed of on the issues of law only,
it shall try those issues first, and for that purpose may, if it
thinks fit, postpone the settlement of the issues of fact until after
the issues of law have been determined. The jurisdiction to try
issues of law apart from the issues of fact may be exercised only
Page 142 of 401

where in the opinion of the Court the whole suit may be disposed
of on the issues of law alone, but the Code confers no jurisdiction
upon the Court to try a suit on mixed issues of law and fact as
preliminary issues. Normally all the issues in a suit should be
tried by the Court : not to do so, especially when the decision on
issues even of law depends upon the decision of issues of fact,
would result in a lop-sided trial of the suit.‖ Though there has
been a slight amendment in the language of Order 14, Rule 2Civil
Procedure Code by the Amending Act, 1976, but the principle
enunciated in the above quoted decision still holds good and
there can be no departure from the principle that the Code
confers no jurisdiction upon the Court to try a suit on mixed
issue of law and fact as a preliminary issue and where the
decision on issue of law depends upon decision of fact, it cannot
be tried as a preliminary issue. Ramesh B. Desai v. Bipin Vadilal
Mehta, AIR 2006 SC 3672.
When defendant is proceeded ex-parte, normally issues are

not framed. - No doubt, issues are to be framed after the filing of
the pleadings by the parties and before the evidence starts. It is
also not in dispute that when the defendant is proceeded ex-
parte, normally issues are not framed and case is put for ex-parte
evidence of the plaintiff. The question is as to whether any
advantage or right accrued in favour of the plaintiff by not
framing of the issues. The answer has to be in the negative. There
is no reason as to why the issues be not framed now, which
exercise would be only a reflection of determining as to whether
the parties are at variance with each other. It would facilitate the
Page 143 of 401

complete adjudication of the controversies involved and would

rather be in the interest of both the parties. Therefore, in the
facts of the case, framing of the issues cannot be treated as
setting the clock back., Finolex Cables Ltd. v. Finolux Auto Pvt.
Ltd. AIR 2007 Del. 268.
Materials from which issues may be framed (Order 14 Rule

3)—The Court may frame the issues from all or any of the
following materials:—
(a) allegations made on oath by the parties, or by any persons
present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to
interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
Court may examine witnesses or documents before framing
issues (Order 14 Rule 4)—Where the Court is of opinion that the
issues cannot be correctly framed without the examination of
some person not before the Court or without the inspection of
some document not , produced in the suit, it [may adjourn the
framing of issues to a day not later than seven days] and may
(subject to any law for the time being in force) compel the
attendance of any person or the production of any document by
the person in whose possession or power it is by summons or
other process.
Power to amend and strike out, issues (Order 14 Rule 5)—(1)
The Court may at any time before passing a decree amend the
issues or frame additional issues on such terms as it thinks fit,
and all such amendments or additional issues as may be
Page 144 of 401

necessary for determining the matters in controversy between the

parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree,
strike out any issues that appear to it to be wrongly framed or
introduced.
Scope- Issue can be framed at any time.The application to frame
an additional issue which arises on the basis of the pleadings
cannot be disallowed on the ground that the plaintiff has already
let in evidence. Rule 5 of Order 14 is clear that the issue can be
framed at any time before the passing of the decree. Hari Chand
v. Krishan Kumar 1999(3) C.C.C. 67 (P&H).1998 SCC On Line
P&H 504
While framing additional issue, a party cannot compel the Court
for the same. It is purely discretion of the Court which is to be
exercised in a judicial manner. However additional issue should
not be framed to convert the nature and character of the suit.,
Jitta Anji Reddy & Anr. v. Ahmed Ali Khan & Anrs., AIR 1992
NOC 4 (A.P.)
Go to Index
Page 145 of 401

Hearing of the suit and examination of witnesses

List of witnesses and summons to witnesses.(Order 16Rule
1)—(1) On or before such date as the Court may appoint, and not
later than fifteen days after the date on which the issues are
settled, the parties shall present in Court a list of witnesses
whom they propose to call either to give evidence or to produce
documents and obtain summons to such persons for their
attendance in Court.
(2) A party desirous of obtaining any summons for the attendance
of any person shall file in Court an application stating therein the
purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to
call, whether by summoning through Court or otherwise, any
witness, other than those whose names appear in the list referred
to in sub-Rule 1. if such party shows sufficient cause for the
omission to mention the name of such witness in the said list.
(4) Subject to the provisions of sub-Rule (2), summonses referred
to in this Rule may be obtained by the parties on an application
to the Court or to such officer as may be appointed by the [Court
in this behalf within five days of presenting the list of witnesses
under sub-Rule (1).
Section 31 of the C.P.C. provides that ―The provisions in Section
27, 28 and 29 shall apply to summons to witnesses to give
evidence or to produce documents or other material objects.‖
Scope- The legal position is that a party who seeks for a prayer
to the Court to issue summons to a witness, must reveal to the
Court the purpose for which the witness is proposed to be
Page 146 of 401

summoned. Once such an application is filed, it is for the Court

to use its discretion to decide whether the summons are to be
issued to those witnesses. It needs to be pointed out that the
issue of summons is not automatic and in appropriate cases or in
cases where objections are raised, the bona fides of the request
has to be looked into before passing appropriate orders passed.
―Under Order 16, Rule 1, Civil Procedure Code after issues are
settled in a suit the parties have to present in Court a list of their
witnesses whom they propose to call either to give evidence or to
produce documents and obtain summons to such persons for
their attendance in Court. Under the said Rule this step has to be
taken not later than fifteen days after issues are settled. This is a
whole-some provision in the Code intending to give notice to a
party about the witnesses which its adversary is to examine in
the case so that it would be in a position to know the nature of
evidence it has to meet. Sub-Rule (1) of Order 16 casts an
obligation on every party to a proceeding to present a list of
witnesses whom it proposes to call either to give evidence or to
produce documents and obtain summons to such persons for
their attendance in Courts‖. M/s. Bennett Coleman and Co. Ltd.
v. Janki Ballav Patnaik, AIR 1989 Ori 145.
Examination of witness by defendant not named in list of
witnesses. The Defendant has a right to examine witness
produced by the defendant on the date fixed for hearing even
though name of such witness is not indicated in the list of
witnesses. Even assuming that provision of Order 16, Rule 1(3)
were applicable, a discretion has been vested in the Trial Court to
permit examination of witness not furnished in the list.,
Page 147 of 401

Hindustan Aeronautics Ltd., Koraput Div. v. B.N. Das, Electric

Trading Co., 2000(2) CCC 17 (Ori.).
Production of witnesses without summons (Order16 Rule

1A) —A Subject to the provisions of sub-Rule (3) of Rule 1, any
party to the suit may, without applying for summons under Rule
1, bring any witness to give evidence or to produce documents.
Scope –- Order 16 Rules 1 and 1(A) adumbrate that the
witnesses at the trial Court are to be produced for examination
by the parties by their filing the list, and omission thereof
prohibits them to avail the assistance of the Court to secure their
attendance to give evidence or to produce documents on their
behalf. It is true that the legislature amended Order 16 Rule 1
and added Rule 1(A) to see that the undue delay should not be
caused in the trial of the suit by filing list of witnesses or the
documents at belated stage. Thereby, it envisages that on or
before the date fixed by the Court for settlement of issues and not
later than 15 days after the date on which issues were settled,
the parties are to file the list of such witnesses whom they
propose to call either to give evidence or to produce documents
and they are required to obtain summons to such witnesses for
their attendance in the Court. On their failure to do the same,
Rule 1(A) says that they may without assistance of the Court
bring witnesses to give evidence or to produce documents. In
other words, if they fail to obtain the summonses through Court
for attendance of witnesses they are at liberty to have the
witnesses brought without the assistant of the Court. It would,
thus, be seen that the legislature did not put a total prohibition
Page 148 of 401

on the party to produce the witnesses or the production of the

documents for proof of the respective case. Nonetheless, when
they seek the assistance of the Court, they are enjoined to give
reasons as to why they have not filed the application within the
time prescribed under Rule 1 of Order 16. Lalitha J. Rai v.
Aithappa Rai, 1995(4) SCC 244: AIR 1995 SC 1984
Expenses of witness to be paid into Court on applying for

summons.(Order16Rule 2) — (1) The party applying for a
summons shall, before the summons is granted and within a
period to be fixed which shall not be later than seven days from
the date of making applications under sub-Rule (4) of Rule 1 pay
into Court such a sum of money as appears to the Court to be
sufficient to defray the traveling and other expenses of the person
summoned in passing to and from the Court in which he is
required to attend, and for one day's attendance.
(2) Experts.—In determining the amount payable under this
Rule, the Court may, in the case of any person summoned to give
evidence as an expert, allow reasonable remuneration for the
time occupied both in giving evidence and in performing any
work of an expert character necessary for the case.
Scope: These provisions are intended to further the ends of
justice and the Court while passing order has to be vigilant that
the petition has not been filed to delay the trial or cause
unnecessary hardship to any witness. To that end, the Court may
first be satisfied about the reason for summoning such a witness.
Secondly, in appropriate cases it may direct the party to deposit
the witness cost and traveling and other expenses before
Page 149 of 401

summoning the witness. Further, when the witness appears the

Court need to ensure that the deposited amount is paid to the
witness immediately after the recording of evidence.
Summons to produce document.(Order16Rule 6)—Any
person may be summoned to produce a document, without being
summoned to give evidence; and any person summoned merely
to produce a document shall be deemed to have complied with
the summons if he causes such document to be produced instead
of attending personally to produce the same.
Summons given to the party for service.(Order16Rule7A )—
(1) The Court may, on the application of any party for the issue of
a summons for the attendance of any person, permit such party
to effect service of such summons on such person and shall, in
such a case, deliver the summons to such party for service.
(2) The service of such summons, shall be effected by or on behalf
of such party by delivering or tendering to the witness personally
a copy thereof signed by the Judge or such officer of the Court as
he may appoint in this behalf and sealed with the seal of the
Court.
(3) The provisions of Rules 16 and 18 of Order V shall apply to a
summons personally served under this Rule as if the person
effecting service were a serving officer.
4) If such summons, when tendered, is refused or if the person
served refuses to sign and acknowledgment of service or for any
reason such summons cannot be served personally, the Court
shall, on the application of the party, re-issue such summons to
be served by the Court in the same manner as a summons to a
defendant.
Page 150 of 401

(5) Where a summons is served by a party under this Rule, the

party shall not be required to pay the fees otherwise chargeable
for the service of summons.]
Procedure where witness fails to comply with
summons(Order 16 Rule 10)
(1) Where a person to whom a summon has been issued either to
attend to give evidence or to produce a document, fails to attend
or to produce the document in compliance with such summons,
the Court—
(a) shall, if the certificate of the serving officer has not been
verified by the affidavit, or if service of the summons has effected
by a party or his agent, or
(b) may, if the certificate of the serving officer has been so
verified, examine on oath the serving officer or the party or his
agent, as the case may be, who has effected service,or cause him
to be so examined by any Court, touching the service or non-
service of the summons.
(2) Where the Court sees reason to believe that such evidence or
production is material, and that such person has, without lawful
excuse, failed to attend or to produce the document in
compliance with such summons or has intentionally avoided
service, it may issue a proclamation requiring him to attend to
give evidence or to produce the document at a time and place to
be named therein; and a copy of such proclamation shall be
affixed on the outer door or other conspicuous part of the house
in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at
any time afterwards, the Court may, in its discretion, issue a
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warrant, either with or without bail, for the arrest of such person,
and may make an order for the attachment of his property to
such amount as it thinks fit, not exceeding the amount of the
costs of attachment and of any fine which may be imposed under
Rule 12;
Provided that no Court of Small Causes shall make an order for
the attachment of immovable property.
Section 32 of the C.P.C.— The Court may compel the
attendance of any person to whom a summons has been issued
under Section 30 and for that purpose may—
(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him 1 [not exceeding five thousand
rupees];
(d) order him to furnish security for his appearance and in
default commit him to the civil prison.
Scope -The provisions for such coercive processes in the Rule is
to ensure that the summons issued by the Court to enable the
parties for redressal of injustice suffered by them is respected
and the witnesses comply with the Court‘s requisition to attend
to give evidence or to produce documents according to the
summons.
Object of the Rule - The object of this Rule is to enable the
Court to help the parties to compel attendance of recalcitrants
who, even though served, fail to appear without lawful excuse.,
Dwarka Prasad v. Rajkunwar Bai, A.I.R. 1976 M.P. 214.
Court may of its own accord summon as witnesses strangers
to suit (Order16Rule 14)—Subject to the provisions of this Code
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as to attendance and appearance and to any law for the time

being in force, where the Court at any time thinks it necessary
[to examine any person, including a party to the suit] and not
called as a witness by a party to the suit, the Court may, of its
own motion, cause such person to be summoned as a witness to
give evidence, or to produce any document in his possession, on
a day to be appointed, and may examine him as a witness or
require him to produce such document.
Procedure where witness apprehended cannot give evidence

or produce document (Order16Rule 18)—Where any person
arrested under a warrant is brought before the Court in custody
and cannot, owing to the absence of the parties or any of them,
give the evidence or produce the document which he has been
summoned to give or produce, the Court may require him to give
reasonable bail or other security for his appearance at such time
and place as it thinks fit, and, on such bail or security being
given, may release him, and. in default of his giving such bail or
security, may order him to be detained in the civil prison.
Consequence of refusal of party to give evidence when
called on by Court.(Order16Rule 20)—Where any party to a
suit present in Court refuses, without lawful excuse, when
required by the Court, to give evidence or to produce any
document then and there in his possession or power, the Court
may pronounce judgment against him or make such order in
relation to the suit as it thinks fit.
Page 153 of 401

Power to require attendance of prisoners to give

evidence.(Order 16 A Rule 2) —Where it appears to a Court that
the evidence of a person confined or detained in a prison within
the State is material in a suit, the Court may make an order
requiring the officer in charge of the prison to produce that
person before the Court to give evidence:
Provided that, if the distance from the prison to the Court-house
is more than twenty-five kilometers, no such order shall be made
unless the Court is satisfied that the examination of such person
on commission will not be adequate.
Right to begin.(Order 18 Rule 1)—The plaintiff has the right to
begin unless the defendant admits the facts alleged by the
plaintiff and contents that either in point of law or on some
additional facts alleged by the defendant the plaintiff is not
entitled to any part of the relief which he seeks, in which case the
defendant has the right to begin.
Scope - Right to begin is to be determined by Rules of evidence.
As a general rule, the party on whom burden of proof rests
should begin. Where a suit was filed to declare decree in earlier
suit filed for declaration of title, which was decreed on basis of
compromise as null & void as it had been obtained by practising
fraud, it was held that as the plaintiff raised question of fraud to
have been practised on him, it was he who should begin first, as
per the provision contained in Order 18, Rule 1, C.P.C., Mirza
Niamat Baig v. Sk. Abdul Sayeed, 2009(1) CCC 75 (Ori.)
Where a suit has been filed by the plaintiff for supply of car or in
the alternative for refund of the amount with interest and the
plea of the applicant/defendant is that the car was delivered to
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the plaintiff, in view of the admitted position that against the

payment, car had been delivered, burden lies on the defendant to
prove delivery. Order of Trial Court calling defendant to first
lead his evidence suffers no illegality. When the defendant has
admitted the fact pleaded by the plaintiff but pleads certain fact
onus to prove which is upon him then Trial Court calling
defendant to first lead his evidence commits no illegality.,
Associate Auto Agencies Automobiles Dealers and Engineers
v. M/s. Chhotabhai Jithabhai and Co., 1993(2) C.C.C. 175
(M.P.).
2. Statement and production of evidence.(Order 18 Rule 2)—

(1) On the day fixed for the hearing of the suit or on any other
day to which the hearing is adjourned, the party having the right
to begin shall state his case and produce his evidence in support
of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his
evidence (if any) and may then address the Court generally on the
whole case.
(3) The party beginning may then reply generally on the whole
case.
(3A) Any party may address oral arguments in a case, and shall,
before he concludes the oral arguments, if any, submit if the
Court so permits concisely and under distinct headings written
arguments in support of his case to the Court and such written
arguments shall form part of the record.
(3B) A copy of such written arguments shall be simultaneously
furnished to the opposite party.
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(3C) No adjournment shall be granted for the purpose of filing the

written arguments unless the Court, for reasons to be recorded in
writing, considers it necessary to grant such adjournment.
(3D) The Court shall fix such time-limits for the oral arguments
by either of the parties in a case, as it thinks fit.]
Scope- Where the plaintiff had been negligent and in spite of
repeated opportunities and directions had failed to file affidavits
by way of evidence, the Court was fully justified in dismissing the
suit as the plaintiff had failed to lead evidence. There was gross
negligence and carelessness on the part of the plaintiff. Such
negligence, recklessness and repeated failures to comply with
Court orders for over one year cannot be condoned., Manohar
Lal Ahuja v. Nand Lal Ahuja, AIR 2008 (NOC) 347 (Del.).
The object of filing written arguments or fixing time limit of oral
arguments is with a view to save time of Court. The adherence to
the requirement of these Rules is likely to help in administering
fair and speedy justice., Salem Advocate Bar Association, Tamil
Nadu v. Union of India, AIR 2005 SC 3353
Party to appear before other witnesses(Order18 Rule 3A).—
Where a party himself wishes to appear as a witness, he shall so
appear before any other witness on his behalf has been
examined, unless the Court, for reasons to be recorded, permits
him to appear as his own witness at a later stage.
Recording of evidence.(Order18 Rule 4)—(1) In every case, the
examination-in-chief of a witness shall be on affidavit and copies
thereof shall be supplied to the opposite party by the party who
calls him for evidence:
Page 156 of 401

Provided that where documents are filed and the parties rely
upon the documents, the proof and admissibility of such
documents which are filed along with affidavit shall be subject to
the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the
witness in attendance, whose evidence (examination-in-chief) by
affidavit has been furnished to the Court, shall be taken either by
the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission
under this sub-Rule, consider taking into account such relevant
factors as it thinks fit.
(3) The Court or the Commissioner, as the case may be, shall
record evidence either in writing or mechanically in the presence
of the Judge or of the Commissioner, as the case may be, and
where such evidence is recorded by the Commissioner he shall
return such evidence together with his report in writing signed by
him to the Court appointing him and the evidence taken under it
shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks
material respecting the demeanour of any witness while under
examination:
Provided that any objection raised during the recording of
evidence before the Commissioner shall be recorded by him and
decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the
Court appointing the commission within sixty days from the
date of issue of the commission unless the Court for reasons to
be recorded in writing extends the time.
Page 157 of 401

(6) The High Court or the District Judge, as the case may be,
shall prepare a panel of Commissioners to record the evidence
under this Rule.
(7) The Court may by general or special order fix the amount to
be paid as remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16A, 17 and 18 of Order XXVI, in
so far as they are applicable, shall apply to the issue, execution
and return of such commission under this Rule.
Scope- Order 18, Rule 4 provides that in every case, the
examination-in-chief of a witness shall be on affidavit. The Court
has already been vested with power to permit affidavits to be filed
as evidence as provided in Order 19, Rules 1 and 2 of the Code. It
has to be kept in view that the right of cross-examination and re-
examination in open Court has not been disturbed by Order 18,
Rule 4 inserted by amendment. It is true that after the
amendment cross-examination can be before a Commissioner but
no exception can be taken in regard to the power of the
legislature to amend the Code and provide for the examination-
in-chief to be on affidavit or cross-examination before a
Commissioner. The scope of Order 18, Rule 4 has been examined
and its validity upheld in Salem Advocates Bar Association‘s
case. There is also no question of inadmissible documents being
read into evidence merely on account of such documents being
given exhibit numbers in the affidavit filed by way of
examination-in-chief. Further, in Salem Advocates Bar
Association‘s case, it has been held that the trial Court in
appropriate cases can permit the examination-in-chief to be
recorded in the Court. Proviso to sub-Rule (2) of Rule 4 of Order
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18 clearly suggests that the Court has to apply its mind to the
facts of the case, nature of allegations, nature of evidence and
importance of the particular witness for determining whether the
witness shall be examined in Court or by the Commissioner
appointed by it. The power under Order 18, Rule 4(2) is required
to be exercised with great circumspection having regard to the
facts and circumstances of the case. It is not necessary to lay
down hard and fast Rules controlling the discretion of the Court
to appoint Commissioner to record cross-examination and re-
examination of witnesses. The purpose would be served by
noticing some illustrative cases which would serve as broad and
general guidelines for the exercise of discretion. For instance, a
case may involve complex question of title, complex question in
partition or suits relating to partnership business or suits
involving serious allegations of fraud, forgery, serious disputes as
to the execution of the will etc. In such cases, as far as possible,
the Court may prefer to itself record the cross-examination of the
material witnesses. Another contention raised is that when
evidence is recorded by the Commissioner, the Court would be
deprived of the benefit of watching the demeanour of witness.
That may be so but the will of the legislature, which has by
amending the Code provided for recording evidence by the
Commissioner for saving Court‘s time taken for the said purpose,
cannot be defeated merely on the ground that the Court would be
deprived of watching the demeanour of the witnesses. Further, as
noticed above, in some cases, which are complex in nature, the
prayer for recording evidence by the Commissioner may be
declined by the Court. It may also be noted that Order 18, Rule
Page 159 of 401

4,specifically provides that the Commissioner may record such

remarks as it thinks material in respect of the demeanour of any
witness while under examination. The Court would have the
benefit of the observations if made by the Commissioner.
Rule 4(1) is mandatory and it is not directory. The expression

‗shall‘ used in Order 18, Rule 4 has to be construed as may. It
will hardly be permissible to read the word shall in relation to
examination before a Court as it is bound to cause absurd
results. If the expression shall is construed strictly, then the very
discretion given to the Court in this Rule would stand frustrated.
The legislative intent in providing for exercise of discretion by
giving option to the Court to permit the cross-examination of the
witnesses before itself or before the Commissioner appointed by it
shall be rendered otiose in effect thus defeating the very object of
the legislative amendments. The use of the word ‗shall‘ appearing
in sub-Rule (2) is mandatory only to the extent that the cross-
examination of a witness whose affidavit has been taken on
record in lieu of the examination-in-chief has to be taken; but
whether it would be taken before the Court or before the
Commissioner appointed by it is a matter of discretion of the
Court. There is no occasion for the Court to construe the word
shall as mandatory and limited to the extent that cross-
examination shall only be conducted before the Court. If that
interpretation was to be accepted, it would completely frustrate
the very object of the amendment and would bring it at parity
with Order 18, Rule 4 of the unamended Code of Civil Procedure,
1908. Such an interpretation thus cannot be accepted. The use
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of the word shall is neither a decisive factor nor capable of such a

strict construction as this interpretation does not fit in the
scheme of the Code. Harish Vithal Kulkarni v. Pradeep Mahadev
Sabnis, AIR 2010 Bom.178 (Full Bench).
Parties are entitled to produce documents along with

affidavit - Parties are entitled to produce documents along with
affidavit, but admissibility of such document is to be decided by
Court before documents are being exhibited in evidence &
decision cannot be postponed till final disposal of case or any
time after documents are exhibited in accordance with Order 13,
Rule 4 CPC., Durga Shankar S. Trivedi v. Babubani Bhulabhai
Parekh, AIR 2003 Bom. 487:
Order 18, Rule 4 sub-Rule (1) provides that in every case

examination-in-chief of the witnesses shall be on affidavits and
copies thereof shall be supplied to the opposite parties by the
party who calls them for evidence. It often happens that the
witness may not be under the control of the party who wants to
rely upon his evidence and that witness may have to be
summoned through Court. Order 16 Rule 1 provides for list of
witnesses being filed and summons being issued to them for
being present in Court for recording their evidence. Rule l-A, on
the other hand, refers to production of witnesses without
summons where, any party to the suit may bring any witness to
give any evidence or to produce documents. Reading the
provisions of Order 16 and Order 18 together, it appears that
Order 18 Rule 4(1) will necessarily apply to a case contemplated
Page 161 of 401

by Order 16 Rule l-A, i.e. Where any party to a suit, without

applying for summoning under Rule 1 bring any witness to give
evidence or produce any document. In such a case, examination-
in-chief is not to be recorded in Court but shall be in the form of
an affidavit. In cases where the summonses have to be issued
under Order 16 Rule 1, the stringent provision of Order 18 Rule 4
may not apply. When summons are issued, the Court can give an
option to the witness summoned either to file an affidavit by way
of examination- in-chief or to be present in Court for his
examination. In appropriate cases, the Court can direct the
summoned witness to file an affidavit by way of examination-in-
chief. In other words, with regard to the summoned witnesses the
principle incorporated in Order 18 Rule 4 can be waived. Whether
a witness shall be directed to file affidavit or be required to be
present in Court for recording of his evidence is a matter to be
decided by the Court in its discretion having regard to the facts of
each case. Order 18 Rule 4(2) gives the Court the power to decide
as to whether evidence of a witness shall be taken either by the
Court or by the Commissioner. Under the sub-Rule 4(2) the
Court has the power to direct either all the evidence being
recorded in Court or all the evidence being recorded by the
Commissioner or the evidence being recorded partly by the
Commissioner and partly by the Court. For example, if the
plaintiff wants to examine 10 witnesses, then the Court may
direct that in respect of five witnesses evidence will be recorded
by the Commissioner while in the case of other five witnesses
evidence will be recorded in Court. In this connection, Order 18
Rule 4(3) provides that the evidence may be recorded either in
Page 162 of 401

writing or mechanically in the presence of the Judge or the

Commissioner. The use of the word ―mechanically‖ indicates that
the evidence can be recorded even with the help of the electronic
media, audio or audio-visual, and in fact whenever the evidence
is recorded by the Commissioner it will be advisable that there
should be simultaneously at least an audio recording of the
statement of the witnesses so as to obviate any controversy at a
later stage., Salem Advocate Bar Association, Tamil Nadu v.
Union of India, 2002(8) Supreme 55.
Power of Commissioner to declare a witness hostile- Order
18, Rule 4(4) requires that any objection raised during the
recording of evidence before the Commissioner shall be recorded
by him and decided by the Court at the stage of arguments.
Order 18, Rule 4(8) stipulates that the provisions of Rules 16, 16-
A, 17 and 18 of Order 26, in so far as they are applicable, shall
apply to the issue, execution and return of such commission
thereunder. The discretion to declare a witness hostile has not
been conferred on the Commissioner. Under Section 154 of the
Evidence Act, it is the Court which has to grant permission, in its
discretion, to a person who calls a witness, to put any question to
that witness which might be put in cross-examination by the
adverse party. The powers delegated to the Commissioner under
Order 26, Rules 16, 16-A, 17 and 18 do not include the
discretion that is vested in Court under Section 154 of the
Evidence Act to declare a witness hostile. If a situation as to
declaring a witness hostile arises before a Commission recording
evidence, the concerned party shall have to obtain permission
from the Court under Section 154 of the Evidence Act and it is
Page 163 of 401

only after grant of such permission that the Commissioner can

allow a party to cross-examine his own witness. Having regard to
the facts of the case, the Court may either grant such permission
or even consider to withdraw the commission so as to itself
record remaining evidence or impose heavy costs if it finds that
permission was sought to delay the progress of the suit or harass
the opposite party., Salem Advocate Bar Association, Tamil Nadu
v. Union of India, AIR 2005 SC 3353
Applicants, filing affidavits, are required to appear before
Court- The applicants, filing affidavits, are required to appear
before the Court. They are required to enter the witness box to
testify the contents of their respective affidavits as laid down by
the Bombay High Court in the case of F.D.C. Ltd v. Federation of
Medical Representatives Association India (FMRAI)., A.I.R. 2003
Bombay 371. The above judgment is approved by the Apex Court
in the case of Ameer Trading Corporation v. Shapoorji Data
Processing Ltd. (2004) 1 S.C.C. 702, thus, where none of the
witness who has sworn an affidavit have entered the witness box,
the said affidavits cannot form part of evidence. Thus, they
cannot be read in evidence., Bank of India v. Allibhoy
Mohammed, AIR 2008 Bom.81.
As Per Rule 89 of JCCR - Parties shall file in Court their lists of
witnesses who are in attendance to give evidence on their behalf
before 11.30 AM.., or in the case of morning sittings before ―7.45
A.M.‖ Where a party himself wishes to appear as a witness he
shall so appear before any other witness on his behalf has been
examined unless the Court, for reasons to be recorded, permits
him to appear as his own witness at a later stage. The omission
Page 164 of 401

to file a hazri within the time fixed shall be no bar to witnesses

for any party being examined if presented for examination, but
nothing shall be allowed to any witness on account of his
expenses for the day's attendance if he is neither entered in the
list nor actually examined.
Note 1-This Rule in no way affects the obligation on the part of
witnesses to attend punctually at the time for which they are
summoned.
As Per Rule 93 of JCCR- Every Presiding Judge shall in the
examination of witnesses record in his own handwriting or when
recording on a computer by himself or on his dictation by a steno
typist and in each deposition the name of the person examined,
the name of his or her father and, if a married woman, the name
of her husband the nationality-religion, profession and age of the
witness and the village, thana and district in which the witness
resides and if the witness belongs to Scheduled caste or
Scheduled tribe, a statement to that effect. The entry of age shall
be the Presiding Judge's own estimate and in his own
handwriting.
As Per Rule 94 of JCCR - In every case, examination-in-Chief
shall be on affidavit on deposition format and the copy of the
same shall be supplied to the other side. Cross examination and
re examination of such witness will be recorded either by the
Court or it be entrusted to the Commissioner appointed by the
Court from the panel approved by the High Court or the Principal
District Judge as the Case may be, the proof and admissibility of
the document filed and relied upon by the parties along with the
affidavit, shall be subject to the orders of the Court.
Page 165 of 401

Note-1:-Even if the examination-in-chief on affidavit has been

filed, it shall be at the discretion of the Court to call upon the
witness to depose on oath, stating the reason thereof in the
order; and to record the deposition in open Court. In such event
the deposition so recorded shall be given weight age for the
purpose of trial.
Note-2:-Except as provided under Order 26 of Code of Civil
Procedure for appointment and recording of evidence by
Commissioner, no Court will allow the recording of cross-
examination or re-examination of a witness who is present in the
Court by the pleader commissioner.
* Where the recording of evidence is likely to take a long time or

for any other special ground, the same shall be entrusted to the
commissioner vide Rule-7 of Jharkhand High Court Case Flow
Management in Sub-Ordinate Court Rules, 2006.
* Evidence through video conferencing may also be resorted to
with recording of audio and visual clips forming part of the
record.
Remarks on demeanour of witnesses.(Order18 Rule 12)—The

Court may record such remarks as it thinks material respecting
the demeanour of any witness while under examination.
Power to examine witness immediately(Order18 Rule 16)—

(1) Where a witness is about to leave the jurisdiction of the Court,
or other sufficient cause is shown to the satisfaction of the Court
why his evidence should be taken immediately, the Court may,
Page 166 of 401

upon the application of any party or of the witness, at any time

after the institution of the suit, take the evidence of such witness
in manner herein before provided.
(2) Where such evidence is not taken forthwith and in the
presence of the parties, such notice as the Court thinks
sufficient, of the day fixed for the examination, shall be given to
the parties.
(3) The evidence so taken shall be read over to the witness, and, if
he admits it to be correct, shall be signed by him, and the Judge
shall, if necessary, correct the same, and shall sign it, and it may
then be read at any hearing of the suit.
Scope- An application under Order 18 Rule 16 of the Code had
been filed stating that the plaintiff was leaving the country
shortly and praying therein for recording the statement of the
plaintiff considering the urgency. Defendant had raised an
objection with regard to the sufficiency of Court fee paid by the
plaintiff upon the plaint. However, the Court directed that the
statement of plaintiff in the suit may be recorded while observing
that it was not proceeding with any other issue. The order was
held to be legally sustainable., Samuel H. Joseph & Ors. v. Dr.
Johan C. Taylor, 1991(1) C.C.C. 595.
Court may recall and examine witness (Order18 Rule 17)—
The Court may at any stage of a suit recall any witness who has
been examined and may (subject to the law of evidence for the
time being in force) put such questions to him as the Court
thinks fit.
Powers of Court under this Rule 17 are discretionary and
very wide- Order 18 Rule 17 of the Code is not a provision
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intended to enable the parties to recall any witnesses for their

further examination-in-chief or cross-examination or to place
additional material or evidence which could not be produced
when the evidence was being recorded. Order 18 Rule 17 is
primarily a provision enabling the Court to clarify any issue or
doubt, by recalling any witness either suo moto, or at the request
of any party, so that the Court itself can put questions and elicit
answers. Once a witness is recalled for purposes of such
clarification, it may, of course, permit the parties to assist it by
putting some questions., K.K. Velusamy v. N. Palaanisamy, 2011
(2) CCC 28 (SC).
Application for recalling witnesses when not allowed- Where
only ground to recall witnesses for further cross-examination was
that earlier counsel representing petitioner did not cross-examine
witnesses effectively due to inadvertence on point of adverse
possession and there was nothing in the application that some
material facts which came to notice of petitioner after cross-
examination of witnesses of respondent were required to be put
to said witnesses, it was held that effective cross-examination
was a very vague term used by the petitioner for recalling
witnesses of respondent and, thus, further cross-examination of
witnesses already cross-examined cannot be permitted merely on
change of counsel with purpose to fill up lacunae left in case.,
Akash v. Gian Singh, AIR 2010 H.P. 93.
Cases in which Court may issue commission to examine
witness.(Order26 Rule 1)—Any Court may in any suit issue a
commission for the examination on interrogatories or otherwise of
any person resident within the local limits of its jurisdiction who
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is exempted under this Code from attending the Court or who is

from sickness or infirmity unable to attend it :
Provided that a commission for examination on interrogatories
shall not be issued unless the Court, for reasons to be recorded,
thinks it necessary so to do.
Explanation.—The Court may, for the purpose of this Rule,
accept a certificate purporting to be signed by a registered
medical practitioner as evidence of the sickness or infirmity of
any person, without calling the medical practitioner as a witness.
Advanced age of a witness can well be construed as a ground
of infirmity-Invocation of provisions of Order 26, Rule 1 is not
limited only in respect of sick persons as the expression,
―sickness or infirmity‖ makes it absolutely clear that the Court
has discretion to issue commission to examine witness who
suffers from some sort of infirmity, apart from sickness and,
thus, advanced age of a witness can well be construed as a
ground of infirmity., Om Prakash Kajaria v. Circular Investment
Trust Ltd., AIR 2009 Cal. 66.
Duty of the Court--When a Commissioner is appointed, the
Court must take care to fix definite time limits for completion of
evidence so that the parties do not exploit the situation by taking
easy adjournments before the Local Commissioner or by raising
unjustifiable objections and so that they do not also harass the
party out of possession or the one who is seeking a decree for
money. The parties cannot also be allowed to harass the Local
Commissioner by raising objections after objections to delay the
evidence. The new solution cannot be allowed to be abused nor
become more disadvantageous or illusory. The Court must by
Page 169 of 401

implication therefore, keep track of what is happening before the

Local Commissioner., M/s Fashion Linkers & Ors. v. Mrs. Savitri
Devi & Anr., 1995 (3) CCC 604 (Del.).
Go to Index
Page 170 of 401

Production, Impounding and Return of Documents

Original documents to be produced at or before the
settlement of issues (Order13 Rule 1) - (1) The parties or their
pleader shall produce on or before the settlement of issues, all
the documentary evidence in original where the copies thereof
have been filed along with plaint or written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof
prepared in such form as the High Court directs.
(3) Nothing in sub-Rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of the
other party; or
(b) handed over to a witness merely to refresh his memory.]
Scope-The first hearing for bproduction of documents
contemplated in this Rule is not the first hearing duly mentioned
in the summons for appearance of the defendant if the suit is a
contested one. The scheme of the Code is such that interrogation
and discovery, production and inspection of documents should
all be complete after a case to be taken upon for hearing of
evidence. The word hearing is a comprehensive meaning
according to the context. In the context in which they are used,
the words ‗at the first hearing of the suit‘ in this Rule, mean that
hearing after the pleadings are completed and before the issues
are framed under Order 14. Up to that stage, production of
documents is permissible without cause being shown, as
contemplated by Order13, Rule 2, but thereafter ‗good cause
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must be shown for late production of documents., Ashoka

Marketing Ltd. v. Rathas Kumar, A.I.R. 1966 Cal.
Discretion to permit filing of documents - Bar under this Rule
is not absolute. The Court has a discretion to admit those
documents into evidence if good cause is shown to the
satisfaction of the Court for non-production of those documents
only. Ram Nath Singh v. Brij Kishore Singh, A.I.R. 1980 Pat. 160.
Rejection of irrelevant or inadmissible documents.(Order13
Rule 3)—The Court may at any stage of the suit reject any
document which it considers irrelevant or otherwise inadmissible,
recording the grounds of such rejection.
Scope-Rejection of inadmissible documents under Order 13,
Rule 3 can be at any stage of suit proceedings. Thus, where a
specific plea was raised in written statement itself that
promissory note was fabricated by affixing used adhesive stamps
and the said objection was found to be factually correct by the
Court on verification of document, it was held that the rejection
of document even before the commencement of trial, was not
improper., Chaganti Ventaka Bhaskar v. C. Chandresekhar
Reddy, AIR 2010 (AP)155.
Endorsements on documents admitted in evidence.(Order13
Rule 4)—(1) Subject to the provisions of the next following sub-
Rule, there shall be endorsed on every document which has been
admitted in evidence in the suit the following particulars,
namely:—
a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
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(d) a statement of its having been so admitted; and the

endorsement shall be signed or initialed by the Judge.
(2) Where a document so admitted is an entry in a book,

account or record, and a copy thereof has been substituted
for the original under the next following Rule, the particulars
aforesaid shall be endorsed on the copy and the endorsement
thereon shall be signed or initialed by the Judge.
Scope- This Rule prescribes that there shall be endorsed on every
document which has been admitted in evidence in the suit, the
number and title of the suit, the name of the person producing
the document, the date on which it was produced and a
statement of its having been so admitted. The endorsement shall
be signed or initialed by the Judge. A document lacking the last
requirement cannot be said to be admitted in evidence. A
document is either admitted or is merely marked as an exhibit for
the purpose of identification subject to the question of its
admissibility being decided later on. If the question of its
admission in evidence is to be determined under the Registration
Act or any other enactment, the document cannot be held to have
been admitted at all for the purpose of any other enactment. It is
only when a document has been marked as an exhibit in the case
and has been used by parties for examination and cross-
examination of their witnesses, that Section 36 of The Stamp Act
comes into operations. An endorsement stating that the
admissibility of the document objected to by the defendant, shall
be decided along with the finding on other issues, indicates that
the document is not admitted in evidence so as to attract the
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provisions of Section 36 of the Stamp Act., Kolli Eranna v.

Ballamkonda, A.I.R. 1966 A P 184.
― It is an archaic practice that during the evidence-collecting
stage, whenever any objection is raised regarding admissibility of
any material in evidence the Court does not proceed further
without passing order on such objection. But the fallout of the
above practice is this: Suppose the trial Court in a case, upholds
a particular objection and excludes the material from being
admitted in evidence and then proceeds with the trial and
disposes of the case finally. If the appellate or the revisional
Court, when the same question is recanvassed, could take a
different view on the admissibility of that material in such cases
the appellate Court would be deprived of the benefit of that
evidence, because that was not put on record by the trial Court.
In such a situation the higher Court may have to send the case
back to the trial Court for recording that evidence and then to
dispose of the case afresh. Why should the trial prolong like that
unnecessarily on account of practices created by ourselves. Such
practices, when realized through the course of long period to be
hindrances which impede steady and swift progress of trial
proceedings, must be recast or remoulded to give way for better
substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is
this: Whenever an objection is raised during evidence-taking
stage regarding the admissibility of any material or item of oral
evidence the trial Court can make a note of such objection and
mark the objected document tentatively as an exhibit in the case
(or record the objected part of the oral evidence) subject to such
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objections to be decided at the last stage in the final judgment. If

the Court finds at the final stage that the objection so raised is
sustainable the Judge or Magistrate can keep such evidence
excluded from consideration. In our view there is no illegality in
adopting such a course. However, we make it clear that if the
objection relates to deficiency of stamp duty of a document the
Court has to decide the objection before proceeding further. For
all other objections the procedure suggested above can be
followed." Sisir Kumar Sadhu Khan VS Jyotsna Sah, 2010 3 JCR
132; 2010 3 JLJR 434; 2010 0 Supreme(Jhk) 315;
As Per Rule 234 of JCCR - Documents admitted in evidence

shall be marked with figures 1, 2, 3, etc., and capital letters A, B,
C,etc., accordingly as they are admitted on behalf of the plaintiffs
or defendants and separate lists of such documents in Form No.
(J) 11 shall be prepared by the Bench Clerk which will be signed
by the Presiding Judge. The entries in these lists shall be made
day by day and the same shall also be maintained in digital
mode.
As Per Rule 235 of JCCR - When there are two or more parties
of defendants, the documents of the first party may be marked A-
1,B-1, C-1, etc., and those of the second, A-2, B-2, C-2, etc. If on
behalf of either of the party digital evidence is filed and the same
is taken into evidence thus digital documents shall be marked in
case of plaintiff as El-P1, P2, P3. Similarly in cases of defendants
the same shall be marked as El-D1, D2, D3.
(a) Where an exhibit forms part of a voluminous document, such
account book, Khata and counterfoil receipt book, etc., it should
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be clearly indicated by means of a slip of paper pinned to the

sheet or page on which it occurs, the exhibit mark being noted on
the slip.
(b) When an entry in an account book is admitted in evidence the
portion so admitted shall be clearly indicated by enclosing the
same in red ink.
As Per Rule 236 of JCCR - When documents are admitted at
the instance of the Court and neither party is willing to accept
them as evidence on his behalf; they shall be marked as I, II, III.
Etc.
As Per Rule 237 of JCCR - .When a number of documents of the
same nature are admitted, as for example, a series of rent
receipts, the whole series should bear one number or capital
letter, a small letter or small number being added beneath the
number or letter. and separated from it by a line to distinguish
each paper of the series.
As Per Rule 238 of JCCR - Exhibits must not be defaced in any
way except in so far as the law permits, that is to say by marking
them as Exhibits filed in a case.
As Per Rule 239 of JCCR - .When a document of historical or

anti quarian interest is in question the Court should make every
possible endeavor to prevent it being defaced by endorsement or
exhibit marks or by having the seal of the Court impressed upon
it. If the parties do not agree to a photograph copy being
substituted for the original, the document may be enclosed in a
sealed cover or in a locked or sealed box, the necessary
particulars being endorsed outside such box or cover. If every
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other means fails measures should be taken for the safe custody
of the document pending instructions from higher authorities.
(A). Any party to a suit or proceeding may file photostat copy of
any valuable and important document and the original thereof
may be produced at the time of evidence. The original document
may be returned to the party concerned soon after it has been
inspected or put in evidence unless its retention is considered
necessary. In case retention of original document is considered
necessary by the Court, all measures should be taken by the
Court for its safe custody.
As Per Rule 240 of JCCR - When an original document, after
being marked for the purpose of identification, is returned, and a
copy thereof substituted under the provisions of Order VII, Rule
17, or Order XI 11, Rule 5, Code of Civil Procedure, a note of the
return of the original shall be made in the lists referred to in the
preceding Rules.
As Per Rule 241 of JCCR -When any public document (not being
the record of a suit or of a judicial proceeding) or a document in
public custody has been produced in Court in compliance with a
summons the Court shall after the document has been inspected
or put in evidence, as the case may be, cause it to be returned
with the least possible delay to the officer from whose custody it
has been produced after the preparation of such copies as the
Court may require under Order XIII, Rule 5, clause (2) Civil
Procedure Code, unless its detention is considered to be
necessary till the delivery of the judgment.
Note- While returning any public document, the Court shall
make an endorsement therein near about the exhibit mark and
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by a separate order in the order-sheet of the case direct that it

shall not be destroyed without previous permission of the Court
and the Court shall not accord such permission until the trial is
concluded, or in case where appeal lies until sufficient time has
elapsed for appeal, or, if an appeal is preferred, until the
determination thereof. The Court shall forward to the department
concerned a copy of the order and before according permission
for destruction, shall satisfy itself that no appeal is pending. The
term "appeal" includes a second appeal and an appeal to the
Supreme Court.
As Per Rule 242 of JCCR -Should any document or book
produced at anytime in the course of the proceeding, present a
suspicious appearance or be held by the Court to be forged or
fabricated, the Court shall make a note of the fact on the order-
sheet of the case and direct therein that it shall be kept in safe
custody and shall not be returned to the parties concerned
without permission of the Court. The Court shall not accord such
permission unless all proceedings connected with such document
or book have been completely disposed of. A note in red ink to the
above effect shall also be made in the exhibit list as well as on the
list with which the document has been filed in Court. A similar
note shall be made on a separate piece of paper which shall be
attached to document or book concerned.
As Per Rule 243 of JCCR - Where the Court does not make any
direction to the contrary unexhibited documents, if not returned
earlier, shall, at the conclusion of the trial, be returned to the
person producing them or his pleader after he has signed the
receipt for the same in the proper column on the list. A pleader,
Page 178 of 401

when required t9 do so, is bound to take back any document

produced by his client and to sign the receipt referred to above.
[G.L. 3/29.]
As Per Rule 244 of JCCR -(1) A private person, not a party to
the suit, producing a document in Court in compliance with a
summons, should be required to state in writing the address to
which the document is to be returned, if not returned to him
personally. If it is desired that the document should be returned
to a pleader, a vakalatnama shall be filed along with the
document.
(2) Where the document is not tendered or admitted in evidence it
shall be returned at once to the person producing it either
personally or by registered post.
(3) Where the document is admitted in evidence, a certified copy
thereof shall be prepared and placed on the record, if not already
there. The original shall then be returned to the person
producing it personally or by registered post, or to his pleader
unless the genuineness of the documents is in controversy, in
which case the original shall, unless the- Court otherwise directs,
be returned after the trial is concluded, or, in cases where an
appeal lies, after sufficient time has been allowed for appealing,
or, if an appeal is preferred, after the determination thereof. The
word "appeal" includes a second appeal where a second appeal
lies.
(4) (a) In the case of voluminous documents, such as account
books or collections of zamindary papers, which cannot
conveniently be returned by registered post, the person
producing them shall, if they are not returned to him at once, be
Page 179 of 401

informed in due course by registered letter that he is at liberty to

take them back, and that his reasonable traveling expense will be
furnished.
(b) This procedure shall also be adopted where the person
producing the document states in writing at the time of
production that the document is of value to him and that he will
take it back personally.
(5) In cases where the person producing a document has any
Advocate authorised to take back documents on his behalf the
document may be returned under the foregoing Rules to such
Advocate , unless at the time of production the person producing
it states in writing that it should be returned to him personally or
by registered post.
(6) (a) Before a document such as is referred to in sub-Rule (1) is
called for at the instance of a party to the suit, such party shall
deposit a sum sufficient to meet such expenses as are likely to be
incurred, including the cost of returning the document by
registered post, the cost of preparing a certified copy under sub-
Rule (3) and in cases under sub-Rule (4) the traveling expenses
both ways of the person producing the document.
(b) In cases under sub-Rule (4) the traveling expenses shall be
'transmitted to the person producing the document along with
registered letter therein referred to.
As Per Rule 245 of JCCR - A period of three months from the
date of the decree should ordinarily elapse before the documents
exhibited in a case are returned to the person who produced
them. The Presiding Officers of outlying Courts should see that
Page 180 of 401

exhibits are as far as possible returned before the periodical

despatch of the records to the District Record Room.
Note-3 Relating to Electronic evidence
If any evidence is filed in form of electronic evidence which
includes computer evidence, digital audio, digital video, cell
phones or digital fax machines, the expert opinion with regard to
the same will be given by the examiner, as specified by the
Central Government by notification in official gazette as
mentioned in Section 79-A of the Information Technology Act
2000 (Amended Act -2009).Implication of amended provisions of
Indian Evidence Act in Sections 3(a) (b), 17, 22, 34, 35, 39, 47,
59, 65, 67, 73, 81, shall be given effect to.
Note-4 Mode of marking the electronic evidence as
mentioned in above
The following mode may be prescribed for marking the e –
evidence –
(i)Computer evidence – If the computer itself is produced, the
same may be marked as material exhibits and its print out may
be marked as ‗e‘ - series
( ii) Digital audio- As ‗e‘-digital audio series
(iii) Digital Video- As ‗e‘-digital video series
(iv) Cell phone- As ‗e‘-cell phone series
( v) Digital fax machine As ‗e‘-digital fax machine Series(Rule
94 note 3,4of JCCR)
Endorsements on copies of admitted entries in books,
accounts and records (Order13 Rule 5) - (1) Save in so far as is
otherwise provided by the Bankers' Books Evidence Act, 1891
(XVIII of 1891) where a document admitted in evidence in the suit
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is an entry in a letter-book or a shop-book or other account in

current use, the party on whose behalf the book or account is
produced may furnish a copy of the entry.
(2) Where such a document is an entry in a public record
produced from a public office or by a public officer, or an entry in
a book or account belonging to a person other than a party on
whose behalf the book or account is produced, the Court may
require a copy of the entry to be furnished—
(a) where the record, book or account is produced on behalf of a
party, then by that party, or
(b) where the record, book or account is produced in obedience to
an order of the Court acting of its own motion, then by either or
any party.
(3) Where a copy of an entry is furnished under the foregoing
provisions of this Rule, the Court shall, after causing the copy to
be examined, compared and certified in manner mentioned in
Rule 17 of Order VII, mark the entry and cause the book, account
or record in which it occurs to be returned to the person
producing it.
Endorsements on documents rejected an inadmissible in
evidence.(Order13 Rule 6)—Where a document relied on as
evidence by either party is considered by the Court to be
inadmissible in evidence, there shall be endorsed thereon the
particulars mentioned in clauses (a), (b) and (c) of Rule 4, sub-
Rule (1) together with a statement of its having been rejected, and
the endorsement shall be signed or initialed by the Judge.
Recording of admitted and return of rejected
documents.(Order13 Rule 7)—(1) Every documents which has
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been admitted in evidence, or a copy thereof where a copy has

been substituted for the original under Rule 5, shall form part of
the record of the suit.
(2) Documents not admitted in evidence shall not form part of the
record and shall be returned to the persons respectively
producing them.
Court may order any document to be impounded.(Order13
Rule 8)—Notwithstanding anything contained in Rule 5 or Rule 7
of this Order or in Rule 17 of Order VII, the Court may, if it sees
sufficient cause, direct any document or book produced before it
in any suit to be impounded and kept in the custody of an officer
of the Court, for such period and subject to such conditions as
the Court thinks fit.
Scope - Stamping of agreements/deeds is governed by the Indian
Stamp Act, 1899 (―the Stamp Act‖). If the document is not
sufficiently stamped, then by virtue of Section 35 of the Stamp
Act there is a bar on ‗admitting‘ such a document in evidence or
acting upon it.
By Section 33 of the Indian Stamp Act, 1899, all public
officers, with certain exceptions, are required to examine every
instrument chargeable with duty which comes before them in the
performance of their official functions and to impound any
instrument which appear not to be duly stamped. Every Court
impounding an instrument must forthwith note it as
―impounded,‖ such note being dated and signed with the ordinary
full signature of the impounding officer.
Section 35 of the Indian Stamp Act, 1899- Instruments not
duly stamped inadmissible in evidence, etc
Page 183 of 401

I. No instrument chargeable with duty shall be admitted in

evidence for any purpose by any person having by law or consent
of parties authority to receive evidence, or shall be acted upon,
registered or authenticated by any such person or by any public
officer, unless such instrument is duly stamped:
Provided that—
(a) any such instrument 1[shall], be admitted in evidence on
payment of the duty with which the same is chargeable, or, in the
case of an instrument insufficiently stamped, of the amount
required to make up such duty, together with a penalty of five
rupees, or, when ten times the amount of the proper duty or
deficient portion thereof exceeds five rupees, of a sum equal to
ten times such duty or portion;
(b) where any person from whom a stamped receipt could have
been demanded, has given an unstamped receipt and such
receipt, if stamped, would be admissible in evidence against him,
then such receipt shall be admitted in evidence against him, then
such receipt shall be admitted in evidence against him on
payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by
correspondence consisting of two or more letters and any one of
the letters bears the proper stamp, the contract or agreement
shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any
instrument in evidence in any proceeding in a Criminal Court,
other than a proceeding under Chapter XII or Chapter XXXVI of
the Code of Criminal Procedure, 1898 (5 of 1898);
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(e) nothing herein contained shall prevent the admission of any

instrument in any Court when such instrument has been
executed by or on behalf of 2[the 3[Government]] or where it
bears the certificate of the Collector as provided by Section 32 or
any other provision of this Act.
Section 38 of the Indian Stamp Act, 1899- Instruments
impounded, how dealt with
(1) Where the person impounding an instrument under Section
33 has by law or consent of parties authority to receive evidence
and admits such instrument in evidence upon payment of a
penalty as provided by Section 35 or of duty as provided by
Section 37, he shall send to the Collector an authenticated copy
of such instrument, together with a certificate in writing, stating
the amount of duty and penalty levied in respect thereof, and
shall send such amount to the Collector, or to such person as he
may appoint in this behalf.
(2) In every other case, the person so impounding an instrument
shall send it in original to the Collector.
Section 42 of the Indian Stamp Act, 1899- Endorsement of
instruments in which duty has been paid under Section 35,
40 or 41 - (1) When the duty and penalty (if any) leviable in
respect of any instrument have been paid under Section 35,
Section 40 or Section 41, the person admitting such instrument
in evidence or the Collector, as the case may be, shall certify by
endorsement thereon that the proper duty or, as the case may be,
the proper duty and penalty (stating the amount of each) have
been levied in respect thereof, and the name and residence of the
person paying them.
Page 185 of 401

(2) Every instrument so endorsed shall thereupon be admissible

in evidence, and may be registered and acted upon and
authenticated as if it had been duly stamped, and shall be
delivered on his application in this behalf to the person from
whose possession it came into the hands of the officer
impounding it, or as such person may direct:
Provided that—
(a) no instrument which has been admitted in evidence upon
payment of duty and a penalty under Section 35, shall be so
delivered before the expiration of one month from the date of
such impounding, or if the Collector has certified that its further
detention is necessary and has not cancelled such certificate;
(b) nothing in this Section shall affect the Code of Civil Procedure,
1882 (14 of 1882), Section 144 clause 3.
Return of admitted documents.(Order13 Rule 9)—(1) Any

person, whether a party to the suit or not, desirous of receiving
back any documents produced by him in the suit and placed on
the record shall, unless the document is impounded under Rule
8, be entitled to receive back the same,—
(a) where the suit is one in which an appeal is not allowed, when
the suit has been disposed of, and
(b) where the suit is one in which an appeal is allowed, when the
Court is satisfied that the time for preferring an appeal has
elapsed and that no appeal has been preferred or, if an appeal
has been preferred, when the appeal has been disposed of:
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[Provided that a document may be returned at any time earlier

then that prescribed by this Rule if the person applying
therefor—
(a) delivers to the proper officer for being substituted for the
original,—
(i) in the case of a party to the suit, a certified copy, and
(ii) in the case of any other person, an ordinary copy which has
been examined, compared and certified in the manner mentioned
in sub-Rule (2) of Rule 17 of Order VII, and
(b) undertakes to produce the original, if required to do so:]
Provided also that no document shall be returned with, by force
of the decree, has become wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt
shall be given by the person receiving it.
Scope- Document contemplated under Rule 9 is original
document and not certified copy. - On a plain reading of Order
13, Rule 9, it is indisputably gatherable that original documents
can be allowed to be taken away after placing its certified copies
on record. It is further contemplated by the Rule that returning of
documents without following the procedure under this Rule is a
material irregularity in the exercise of jurisdiction. Proviso to
Order 13, Rule 9, clearly envisages that original document filed
can be returned only after its certified copies delivered to the
proper officer for being substituted for the original. The Rule
cannot be stretched to mean the return of the document, which
itself is a certified copy of the original from the record of the file.
The document contemplated under this Order 13, Rule 9 for all
intents and purposes is employed as original document and not
Page 187 of 401

the certified copy. The documents sought to be returned by the

applicants being not the original and only the certified copies,
cannot be returned in terms of Order 13, Rule 9 of the CPC., Des
Raj alias Parbhatu and Another v. Raghunath Singh, AIR 2004
J&K 64.
Court may send for papers from its own records or from
other Courts.(Order13 Rule 10)— (1) The Court may of its own
motion, and may in its discretion upon the application of any of
the parties to a suit, send for, either from its own records or from
any other Court, the record of any other suit or proceeding, and
inspect the same.
(2) Every application made under this Rule shall (unless the
Court otherwise directs) be supported by an affidavit showing
how the record is material to the suit in which the application is
made, and that the applicant cannot without unreasonable delay
or expense obtain a duly authenticated copy of the record or of
such portion thereof as the applicant requires, or that the
production of the original is necessary for the purposes of justice.
(3) Nothing contained in this Rule shall be deemed to enable the
Court to use in evidence any document which under the law of
evidence would be inadmissible in the suit.
Scope - Necessity of affidavit - Where an application is not
supported by affidavit as required by Rule 10, the application
cannot be rejected on that ground. Sub-Rule (2) of Rule 10 of
Order 13 indicates that every application for calling for the
records of any other suit or proceedings from any other Court has
to be supported by an affidavit showing (i) how the records were
Page 188 of 401

material to the suit in which the application was made, (ii) that
the applicant cannot without unreasonable delay or expense
obtain a duly authenticated copy of the records for such portion
thereof as the appellant requires or that the production of
original records were necessary for the purpose of justice., M/s.
Apollo Machinery Mart v. Firj Shah Mustt. Rausana Begum &
Ors., AIR 1996 Gau. 5:
Provisions as to documents applied to material

objects.(Order13 Rule 11)—The provisions therein contained as
to documents shall, so far as may be, apply to all other material
objects producible as evidence.
Go to Index
Page 189 of 401

Argument by the Parties

Order XVIII Rule 3A -(1) Any party may address oral arguments
in a case, and shall, before he concludes the oral arguments, if
any, submit if the Court so permits concisely and under distinct
headings written arguments in support of his case to the Court
and such written arguments shall form part of the record.
As Per Rule 96 of JCCR - Arguments should be heard
immediately after the evidence closes.
As Per Rule 97 of JCCR - Before close of oral argument, the
Court at the request of the parties shall permit them to file their
respective concise written argument under distinct heads by
supplying the copy of the same to the other side. Such written
arguments shall form the part of the record.
b) the Court shall fix such time limit for the oral argument by
either parties, as it thinks fit and no adjournment shall be
granted for filing written argument, unless for the reasons so
recorded by the Court.
Order XVIII Rule 3B-(2) A copy of such written arguments shall
be simultaneously furnished to the opposite party.
Order XVIII Rule 3C- (3) No adjournment shall be granted for
the purpose of filing the written arguments unless the Court, for
reasons to be recorded in writing, considers it necessary to grant
such adjournment
Order XVIII Rule 3D -(4) The Court shall fix such time-limits for
the oral arguments by either of the parties in a case, as it thinks
fit.
Page 190 of 401

Object of filing written arguments or fixing time limit of

oral arguments-In Order 18, Rule 2 sub-Rules (3A) to 3(D) have
been inserted by Act 22 of 2002. The object of filing written
arguments or fixing time limit of oral arguments is with a view to
save time of Court. The adherence to the requirement of these
Rules is likely to help in administering fair and speedy justice.,
Salem Advocate Bar Association, Tamil Nadu v. Union of India,
AIR 2005 SC 3353:
Vidya Devi vs. Prem Prakash (1995) 4 SCC 496
Unless all the necessary ingredients to constitute ouster by
adverse possession are set out in the written statement, the plea
relating to the title of property in question cannot be set to have
been raised.
A question of fact which had not been put forward in the
written statement cannot be allowed to be raised later. Such, for
example, is a plea of estoppel; of part performance under Section
53A of Transfer of Property Act; a plea that partnership was not
registered; or that a contract has been discharged by frustration.
Rama Shanker Singh vs. Shyam Lata Devi 1969 (2) SCR 360
Question – Whether inconsistent pleas can be raised?

Answer – This question has been answered in 2014(11) SCC
316 Praful Manohar Rele vs Smt Krishnabai Narayan Ghosalkar:
The case of the plaintiff appellant herein primarily was that the
original defendant and even his legal representatives were
occupying the suit premises as gratuitous licensees upon
termination whereof the plaintiff was entitled to a decree for
possession. While the Trial Court found that the defendants were
Page 191 of 401

tenants and not licensees as alleged by the plaintiff the first

Appellate Court had recorded a clear finding to the contrary
holding that the defendants were indeed occupying the premises
as licensees whose license was validly terminated by the plaintiff.
Whether or not the defendants were licensees as alleged by the
plaintiff was essentially a question of fact and had to be answered
on the basis of the evidence on record which the First Appellate
Court had reappraised to hold that the defendants were let into
the suit property by the plaintiff on humanitarian grounds and as
gratuitous licensees. The only question that would fall for
determination based on such a plea was whether the plaintiff had
made out a case on the grounds permissible under the Rent
Control Act. An adjudication on that aspect would become
necessary only if the plaintiff did not succeed on the primary case
set up by him. The alternative plea would be redundant if the
plaintiff‘s case of the defendants being gratuitous licenses was
accepted by the Court.
2009(11) SCC 609 Sarva Shramik Sangh vs Indian Oil

Corporation The assumption that there is an absolute bar on
inconsistent pleas being taken by a party, is also not sound.
What is impermissible is taking of an inconsistent plea by way of
amendment thereby denying the other side, the benefit of an
admission contained in the earlier pleading. Mutually repugnant
and contradictory pleas, destructive of each other may also not
be permitted to be urged simultaneously by a plaintiff/petitioner.
But when there is no inconsistency in the facts alleged, a party is
not prohibited from taking alternative pleas available in law.
Page 192 of 401

Similarly, on the same facts, different or alternative reliefs can

also be claimed.
Juggi Lal Kamlapat vs. Pratap Mal Rameshwar 1978 (1) SCC 69
The burden is no doubt on the appellant to prove his case but the
parties to the suit are bound by the procedure prescribed in the
Code of Civil Procedure. Order VIII of the Civil Procedure Code
requires what a written statement should contain. Order VIII,
Rule 2, requires that the defendant must raise by his pleading all
matters which show the suit not to 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. Rule 3 requires that 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. Though the
respondent did not question the validity of the delivery order at
the first instance he was at liberty to question it when he filed the
additional written statement and to raise all grounds of defence
to the validity of the delivery order. The failure to question the
validity of the delivery order or the ground that it required
registration with the Mill or that the possessor was bound to give
an undertaking would be failure to comply with the requirements
of Order VIII. The pleadings were before the Original Side of the
Calcutta High Court and the Courts have recognised that the
pleadings of the Original Side of the High Court must be strictly
construed. In Badat and Co. v. East India Trading Co., AIR 1964
Page 193 of 401

SC 538, the Supreme Court observed regarding the requirements

of the written statement under Order VIII, Rules 4 and 5, as
follows :-
"These three Rules form an integrated code dealing with the

manner in which allegations of fact in the plaint should be
traversed and the legal consequences flowing from its non-
compliance. The written-statement must deal specifically with
each allegation of fact in the plaint and when a defendant denies
any such fact, he must not do so evasively. but answer the point
of substance. If his denial of a fact is not specific but evasive, the
said fact shall be taken to be admitted. In such an event, the
admission itself being proof, no other proof is necessary." 2009
(2) AIR Bom. R 689 Nago Rao Bhujanga More vs. Premala Bai
In Civil suits, no party can be allowed to take new defence
for which necessary foundation is not laid in the pleading and
when the other side was not put to notice by any suggestion in
the cross-examination. In this case the appellants are not entitled
to take new defence for which no foundation was laid in the
pleading or during evidence of respondent/plaintiffs
K. Mani vs. Elumalai 2002 (3) CTC 598
In Civil suit pleadings namely plaint and written statement
form the basic structure over which the case is built by filing
documents and letting oral evidence. In absence of pleadings if
any evidence is let in, the other party would be caught unaware
and hence evidence let in this regard is inadmissible
National Textile Corporation Ltd. vs Nareshkumar Badrikumar
Jagad & Ors., (2011) 12 SCC 695 Pleadings and particular are
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necessary to enable the Court to decide the right of the party in

the trial. It is settled legal proposition that as a Rule relief not
founded in the pleading should not be granted. A decision of a
case cannot be based on grounds outside pleadings of the
parties. It has been held in 1987 (2) SCC 555 Ramswarup Gupta
vs. Vishun Narayan Inter College ―In absence of pleadings,
evidence if any produced by the party cannot be considered.‖
No party should be permitted to travel beyond its pleading and
that all necessary and material facts should be pleaded by the
party in support of the case set up by it. A new ground raising a
pure legal issue for which no inquiry/proof is required can be
permitted to be raised by the Court at any stage of the proceeding
Rule 3-Denial to be specific-- It shall not be sufficient for the
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 of the
truth, except damages.
Rule 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 sum or any part thereof, or else set out how much received.
Rule 5 Specific denial--
1. Every allegation of fact in the plaint , if not denied specifically
or by necessary implication, or stated to be not admitted in
the pleading of the defendant, shall be taken to be admitted
except as against a person under disability.
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2. Where the defendant has not filed a pleading, it shall be

lawful for the Court to pronounce Judgment on the basis of
facts contained in the plaint, except as against a person
under a disability.
In a case where written statement is not filed, the Court should
be cautious in proceeding under this Rule before passing
judgment and it must see that even if the fact set out in the
plaint are treated to have been admitted. It is subjective
satisfaction of the Court and not blind discretion.
Implied admission : The Hon‘ble Supreme Court has held in
AIR 1965 SC 364 Mahendra Manilal Nanavati vs Sushila
Mahendra Nanavati that under Order 8 Rule 5, the facts if not
admitted specifically or by necessary implication or not stated to
be not meted in the pleading of the defendant shall be taken to be
admitted except as a person under disability. Order 12, Rule 6 of
the CPC is enacted to expedite the trial. The doctrine of implied
admission can only be invoked when the facts specifically alleged
by a party in support of his plea are not denied by the other
party. Further, it cannot be invoked where there is express
evidence to be contrary.
Admission by one defendant will not be relevant against a co-

defendant- Admission by a pleader or an agent or by a party
is binding. It has been held in AIR 2003 MP 145 Chetak
Constructions Limited vs Om Prakash And Ors that the
admissions made by the defendant, in the agreement, affidavits,
vouchers and general power of attorney that possession of the
suit properly had been handed over to the plaintiff on the date of
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execution of the agreement, were held to be admissible against

him as substantive piece of evidence proprio vigor.
1993 (4) SCC 6 Lohia Properties (p) Ltd vs Atmaram Kumar

Rule 5 provides that every allegation of fact in the plaint, if not
denied in the written statement shall be taken to be admitted by
the defendant. What this Rule says, is that any allegation of fact
must either be denied specifically or by a necessary implication
or these should be at least deemed to be a statement that this
fact is not admitted.
Gautam Sarup vs Leela Jetly and Ors 2008(7) SCC85
1. An admission made in pleading is not to be treated in the
same manner as an admission in a document. An admission
made by a party to the lis is admissible against him proprio
vigore.
2. In State of Haryana & Ors. v. M.P. Mohla [(2007) 1 SCC
457] , the Supreme Court stated : "25. The law as regards
the effect of an admission is also no longer res integra.
Whereas a party may not be permitted to resile from his
admission at a subsequent stage of the same proceedings, it
is also trite that an admission made contrary to law shall
not be binding on the State."
3. A thing admitted in view of Section 58 of the Indian
Evidence Act need not be proved. Order VIII Rule 5 of the
Code of Civil Procedure provides that even a vague or
evasive denial may be treated to be an admission in which
event the Court may pass a decree in favour of the plaintiff.
Relying on or on the basis thereof a suit, having regard to
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the provisions of Order XII Rule 6 of the Code of Civil

Procedure may also be decreed on admission. It is one thing
to say that without resiling from an admission, it would be
permissible to explain under what circumstances the same
had been made or it was made under a mistaken belief or to
clarify one's stand inter alia in regard to the extent or effect
of such admission, but it is another thing to say that a
person can be permitted to totally resile therefrom.
4. A Three Judge Bench of this Court speaking through Ray,
CJ in Modi Spinning & Weaving Mills Co. Ltd. & Anr. v.
Ladha Ram & Co. [(1976) 4 SCC 320] opined : "10. It is true
that inconsistent pleas can be made in pleadings but the
effect of substitution of paras 25 and 26 is not making
inconsistent and alternative pleadings but it is seeking to
displace the plaintiff completely from the admissions made
by the defendants in the written statement. If such
amendments are allowed the plaintiff will be irretrievably
prejudiced by being denied the opportunity of extracting the
admission from the defendants. The High Court rightly
rejected the application for amendment and agreed with the
trial Court."
Go to Index
Page 198 of 401

Judgment and decree

(1) The Court, after the case has been heard, shall pronounce
judgment in an open Court, either at once, or as soon thereafter
as may be practicable and when the judgment is to be
pronounced on some future day, the Court shall fix a day for that
purpose, of which due notice shall be given to the parties or their
pleaders: Provided that where the judgment is not pronounced at
once, every endeavour shall be made by the Court to pronounce
the judgment within thirty days from the date on which the
hearing of the case was concluded but, where it is not practicable
so to do on the ground of the exceptional and extraordinary
circumstances of the case, the Court shall fix a future day for the
pronouncement of the judgment, and such day shall not
ordinarily be a day beyond sixty days from the date on which the
hearing of the case was concluded, and due notice of the day so
fixed shall be given to the parties or their pleaders.(Order XX
Rule 1 & Rule 99(5) of JCCR)
Immediately after the pronouncement of the judgment the Court
shall make available its copies to the parties for preferring the
appeal on payment of usual charges applicable for obtaining the
copy. (Order XX Rule 6 B)
(2) 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
issue is, sufficient for the decision of the suit. (Order XX Rule 5 )
Scope- Judges while writing out judgments have to discuss,
appreciate and weigh evidence on record in the proper
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perspective and in doing so they have to express their opinion on

the veracity, conduct and character of a witness as borne out on
the material on record. If unnecessary fetters are placed on their
language and expression, it may be difficult for, them to properly
assess and weigh the evidence on record and give a proper
account of the same in their judgments and to express the
reasoning for discarding the evidence of some witnesses or
preferring one set to another.
Contents of judgment -―Judgment‖ as defined in Section 2(9) of
the Code of Civil Procedure means the statement given by the
Judge of the grounds for a decree or order. What a judgment
should contain is indicated in Order 20, Rule 4(2). It should be a
self-contained document from which it should appear as to what
were the facts of the case and what was the controversy which
was tried to be settled by the Court and in what manner. The
process of reasoning by which the Court came to the ultimate
conclusion and decreed the suit should be reflected clearly in the
Judgment., Balraj Teneja v. Sunil Madan, AIR 1999 SC 3381
Contents of a judgment - The contention that provisions of
Order 20, Rule 1(2) would apply only in contested cases and not
in a case in which the written statement has not been filed not
accepted. Whether it is a case which is contested by the
defendants by filing a written statement, or a case which
proceeds ex-parte and is ultimately decided as an ex-parte case,
or is a case in which the written statement is not filed and the
case is decided under Order 8, Rule 10, the Court has to write a
judgment which must be in conformity with the provisions of the
Code or at least set out the reasoning by which the controversy is
Page 200 of 401

resolved. Even if the definition were not contained in Section 2(9)

or the contents thereof were not indicated in Order 20, Rule 1(2),
C.P .C., the Judgment would still mean the process of reasoning
by which a Judge decides a case in favour of one party and
against the other. In judicial proceedings, there cannot be
arbitrary orders. 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. Balraj Teneja v.
Sunil Madan, AIR 1999 SC 3381
As Per Rule 98 of JCCR - Judgment in civil cases may be
recorded by the stenographers upon the dictation of the presiding
officer provided that the Presiding Judge attaches a certificate to
the effect that the judgment has been recorded at his dictation
and attests each page thereof by his signature.
Note–1: When a Presiding Judge uses a type-writing
machine/Computer himself a certificate must be given that this
has been done and each page of the record so made shall be
attested by his signature.
Note-2: When a Presiding Officer uses a Computer himself in
delivering judgment, a certificate must be given at the foot of the
judgment that, it has been done on computer by him and each
page of the print out so taken out, shall be attested with his
signature. In case the digital signatures of the Presiding Officers
are available, the judgment / orders and decrees may be digitally
signed and certified copies etc. may be issued without actual
movement of the records from the Court to the copying Section.
As Per Rule 98 of JCCR - (1) Long judgments must not be
recorded on the order-sheet.
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(2) Judgments in ex parte cases should state what reliefs in the

plaint are granted.
(3) Judgments should state specifically whether any or what
interest (including interest pendent lite) is allowed.
(a) The Presiding Officer shall put his name and designation at
the top of the original judgment.
(b) Name of all the parties with full particulars including their age
shall appear in the heading column of the Judgment.
(c) Paragraphs of the judgment shall be break off into shorter
one, according to the sequence of thoughts and shall be serially
numbered.
(d) The name of all the parties in cause title with full details shall
be typed in the judgment and final order in addition to the decree
(4) The last part of judgment shall state in precise -term the relief
which has been granted by such judgment.
Contents of decree-
(1) The decree shall agree with the judgment: it shall contain the
number of the suit, the names and descriptions of the parties,
their registered addresses, and particulars of the claim, and shall
specify clearly the relief granted or other determination of the
suit.
(2) The decree shall also state the amount of costs incurred in the
suit, and by whom or out of what property and in what
proportions such costs are to be paid.
(3) The Court may direct that the costs payable to one party by
the other shall be set off against any sum which is admitted or
found to be due from the former to the latter.
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―decree‖ means the formal expression of an adjudication which,

so far as regards the Court expressing it, conclusively determines
the rights of the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or final. It
shall be deemed to include the rejection of a plaint and the
determination of any question within Section 144, but shall not
include—
(a) any adjudication from which an appeal lies as an appeal from
an order, or
(b) any order of dismissal for default.
Explanation.—A decree is preliminary when further proceedings
have to be taken before the suit can be completely disposed of. It
is final when such adjudication completely disposes of the suit. It
may be partly preliminary and partly final;
Section 2(2) of Civil Procedure Code defines "decree" to mean "the
formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the
suit and may be either preliminary or final". A preliminary decree
is one which declares the rights and liabilities of the parties
leaving the actual result to be worked out in further proceedings.
Then, as a result of the further inquiries conducted pursuant to the
preliminary decree, the rights of the parties are fully determined
and a decree is passed in accordance with such determination
which is final. Both the decrees are in the same suit. Final decree
may be said to become final in two ways: (i) when the time for
appeal has expired without any appeal being filed against the
preliminary decree or the matter has been decided by the highest
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Court; (ii) when, as regards the Court passing the decree, the same
stands completely disposed of. It is in the latter sense the word
"decree" is used in S. 2(2) of Civil Procedure Code. The
appealability of the decree will, therefore, not affect its character
as a final decree. The final decree merely carries into fulfilment the
preliminary decree. Shankar Balwant Lokhande vs Chandrakant
Shankar Lokhande, AIR1995 SC 1211, (1995) 3 SCC 413 , 1995 0
Supreme(SC) 389
The Lok Adalat shall proceed and dispose the cases and arrive at
a compromise or settlement by following the legal principles, equity
and natural justice. Ultimately the Lok-Adalat passes an award,
and every such award shall be deemed to be a decree of Civil
Court or as the case may be which is final.
Section 21 of the Legal Services Authorities Act, 1987 reads
as follows:-
“21. AWARD OF LOK ADALAT.—2[(1)] Every award of the Lok
Adalat shall be deemed to be a decree of a Civil Court or, as the
case may be, an order of any other Court and where a compromise
or settlement has been arrived at, by a Lok Adalat in a case
referred on it under sub-Section (1) of Sec. 20, the Court fee paid in
such cases shall be refunded; in the manner provided under the
Court Fees Act, 1870 (7 of 1870)
(2) Every award made by a Lok Adalat shall be final and binding
on all the parties to the dispute, and no appeal shall lie to any
Court against the award. P. T. Thomas vs. Thomas Job, AIR 2005
SC 3575, (2005) 6 SCC 478, 2005 0 Supreme(SC) 982
Preparation of decree.—
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(1) Every endeavour shall be made to ensure that the decree is

drawn up as expeditiously as possible and, in any case, within
fifteen days from the date on which the judgment is
pronounced. (Order XX Rule 6A )
(2) An appeal may be preferred against the decree without filing a
copy of the decree and in such a case the copy made available to
the party by the Court shall for the purposes of Rule 1 of Order
XLI be treated as the decree. But as soon as the decree is drawn,
the judgment shall cease to have the effect of a decree for the
purposes of execution or for any other purpose. (Order XX Rule
6A )
(3) Where the judgment is pronounced, copies of the judgment
shall be made available to the parties immediately after the
pronouncement of the judgment for preferring an appeal on
payment of such charges as may be specified in the Rule made by
the High Court. (Order XX Rule 6B )
(4) The decree shall bear the day on which the judgment was
pronounced, and, when the judge has satisfied himself that the
decree has been drawn up in accordance with the judgment, he
shall sign the decree. (Order XX Rule 7)
Scope- Amendment of decree. — It is true that a decree,

whether preliminary or final, is formal expression of an
adjudication which, so far as regards, the Court expressing it,
conclusively determines the rights of the parties with regard to all
or any of the matters in controversy in the suit. The Court,
therefore, may not have a suo motu power to amend a decree but
the same would not mean that the Court cannot rectify a
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mistake. If a property was subject matter of pleadings and the

Court did not frame an issue which it ought to have done, it can,
at a later stage, when pointed out, may amend the decree. Thus,
property can be added in the list of properties after a preliminary
decree is passed in a partition suit and Section 97 which provides
for an appeal against preliminary decree, would not be a bar to
file an application for amendment of a decree., S. Satnam Singh
v. Surender Kaur, AIR 2009 SC 1089.
As Per Rule 100 of JCCR -Decrees of District and Subordinate

Judges should ordinarily be drawn up in English. Decrees of
Munsifs [Civil Judge (Junior Division)] should also be drawn up
in English wherever possible.
As Per Rule 101 of JCCR -Decrees should be drawn up in such

a manner that, in order to the understanding and execution of
them, it may not be necessary to refer to any other document or
paper whatever.
Note 1-Petitions of compromise, maps prepared by the direction
of or accepted by the Court and other similar papers necessary to
illustrate the terms of the order passed shall be embodied in the
decree.
Note 2-The particulars of the claim and the date of institution of
the suit shall appear in the decree.
Note 3. Where different valuations are put for purposes of
jurisdiction and for payment of Court-fees, both values should be
stated in the decree. The amount claimed as mesne profits
should be separately shown. In the case of an appellate decree
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the valuation as given in the decree of the first Court should also
be embodied.
Note 4.-In drawing up decrees interest, if any, allowed by the
Court should be clearly-shown and also the period for which and
the rate at which interest has been allowed.
As Per Rule 102 of JCCR - The decree should be drawn up as

expeditiously as possible and in any case, within 15 days from
the date on which the judgment is pronounced, but where the
decree is not drawn up within the time aforesaid, the Court shall
if requested so to do by a party desirous of appealing against the
decree, certify that the decree has not been drawn up and
indicate in the certificate the reasons for the delay as required by
Order XX, Rule 6A.
As Per Rule 103 of JCCR -Whenever an address has been filed

for service by a party under Order VII. Rules 19 and 22, or Order
VIII, Rules 11 and 12 of the First Schedule to the Code of Civil
Procedure, such address shall be entered in the decree or formal
order instead of the address given in the plaint or petition. The
following note shall be made in the decree or formal order below
the names and addresses of the parties and the note shall be
signed by the clerk by whom the decree or formal order is drawn
up The addresses given above are the addresses for service filed
by the parties with the exception of ...................…(names to be
mentioned) ………who did not appear or omitted to file their
addresses.
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As Per Rule 104 of JCCR - In drawing up decrees costs are to be

very carefully calculated. Where "proportionate costs" are allowed
such costs shall bear the same proportion to the total costs as
the successful part of the claim bears to the total claim. When
"corresponding costs", or "costs according to success" are
decreed, the assessment is to be made as if the suit had been
originally brought at an amount representing the value of the
successful part of the claim.
As Per Rule 105 of JCCR - Without prejudice to the generality of

the provisions of the Code of Civil Procedure relating to costs,
costs in respect of items specified in Order XXA, Rule 1, C.P C.
shall form part of the costs of the case unless otherwise directed
by the Court.20
As Per Rule 106 of JCCR - Decrees shall be prepared under the

supervision of the Sirestadar of the Court who shall initial the
same.
As Per Rule 107 of JCCR - As soon a decree has been drawn up

the Court shall cause, a notice to be exhibited on the notice
board stating, that such decree has been drawn up and that it
may be perused by the parties or their pleaders within three days
from the date of posting the notice. The notice shall remain
exhibited during this period. At the end of every quarter the
notices for the previous quarter will be destroyed.
.
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As Per Rule 108 of JCCR - When such notice has been posted
any party or his Advocate may before the expiry of the time
prescribed in the last preceding Rule peruse the decree and
either sign it or if it is incorrectly prepared bring the matter to the
notice of the Court.
As Per Rule 109 of JCCR - If no such objection is made on or

before the date specified in the notice the Judge shall sign the
decree giving the date of his signature.
As Per Rule 110 of JCCR -.(i) Decrees or formal orders need not
be drawn up in the case of Interlocutory orders made during the
course of a suit or execution proceeding.
(ii) Final orders such as those under Order IX, Rules 9 and 13,
Order XXI, Rules 2, 58, 91, 92,99, 100, 101, Order XXIII, Rule 1,
Order XLI, Rules 19,21,23, Order XLVII, Rule 1, and an order
rejecting a plaint; provided where any such holder is capable of
execution or affects execution by reason of cost to be paid by one
party to the other such costs may be shown in the order-sheet
with a short note showing the result of the case and the name of
the party by whom such costs are to be paid as well as that of the
party who is to receive the same so that the latter, if desirous of
executing the order may not be compelled to take a copy of the
judgment.
(a) No formal decree/ separate award is required to be prepared
in Motor Vehicles Accident Claim Cases. The judgment itself shall
contain the detailed particulars viz, (i) name and address of the
parties with age, (ii) the detail of amount of compensation with
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rate of interest(iii) the cost awarded and other relevant factors,

enabling its execution without any further delay.
(b) P.O shall verify before putting his signature on the decree that
all the entries are duly and correctly filled up.
As Per Rule 111 of JCCR - In suits for money including suits

upon mortgage, in suits for specific movables, in suits for
accounts and in suits for arrears of rent no decrees need be
drawn up, if:-
(i) Neither party has to recover anything unless the Judge
otherwise directs;
(ii) The claim is satisfied after judgment but before the decree is
drawn up.
As Per Rule 112 of JCCR - A list of cases in which succession

certificates, probates or letters of administration have been
prepared shall be exhibited on the notice board in the language of
the Court. The certificates, probates or letters of administration
shall be delivered to the parties or the pleaders concerned in
open Court on the third day after the publication of the list.
Go to Index
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Final Decree Proceeding-

Decree in suit for partition of property or separate
possession of a share therein (Order 20 Rule 18):— Where the
Court passes a decree for the partition of property or for the
separate possession of a share therein, then :—
(1) if and in so far as the decree relates to an estate assessed to

the payment of revenue to the Government, the decree shall
declare the rights of the several parties interested in the property
but shall direct such partition or separation to be made by the
Collector or any gazetted subordinate of the Collector deputed by
him in this behalf in accordance with such declaration and with
the provisions of Section 54.
(2) if and in so far as such decree relates to any other immovable
property or to movable property, the Court may, if the partition or
separation cannot be conveniently made without further inquiry,
pass a preliminary decree declaring the rights of the several
parties interested in the property and giving such further
directions as may be required.
Scope - Distinction between Preliminary Decree and final

decree -
A preliminary decree declares the rights or shares of parties to

the partition. Once the shares have been declared and a further
inquiry still remains to be done for actually partitioning the
property and, placing the parties in separate possession of
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divided property then such inquiry shall be held and pursuant to

the result of further inquiry a final decree shall be passed. A
preliminary decree is one which declares the right and liabilities
of the parties leaving the actual result to be worked out in further
proceedings. Then, as a result of the further inquiries conducted
pursuant to the preliminary decree the rights of the parties are
finally determined and a decree is passed in accordance with
such determination, which is, the final decree. The distinction
between preliminary and final decree is this; a preliminary decree
merely declares the rights and shares of the parties and leaves
room for some further inquiry to be held and conducted pursuant
to the directions made in the preliminary decree which inquiry
having been conducted and the rights of the parties finally
determined a decree incorporating such determination needs to
be drawn up which is the final decree.
Under Order XX Rule 18 of the CPC, it is not necessary to pass a

preliminary decree; the Court may pass a preliminary decree if it
is required. If the rights of the parties are finally determined and
no further inquiry remains to be held for the purposes of
completing the proceedings in partition then there is nothing in
law which prevents the Court from passing a final decree in the
very instance. Often such are the cases which are based on
compromise. Raghubir Sahu v. Ajodhya Sahu & Others, AIR
1945 Patna 482
The distinction between preliminary and final decree: A
preliminary decree merely declares the rights and shares of the
parties and leaves room for some further inquiry to be held and
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conducted pursuant to the directions made in the preliminary

decree which inquiry having been conducted and the rights of the
parties finally determined a decree incorporating such
determination needs to be drawn up which is the final decree.
Under Order XX Rule 18 of the CPC it is not necessary to pass a
preliminary decree; the Court may pass a preliminary decree if it
is required. If the rights of the parties are finally determined and
no further inquiry remains to be held for the purposes of
completing the proceedings in partition then there is nothing in
law which prevents the Court from passing a final decree in the
very first instance. Renu Devi vs Mahendra Singh, AIR 2003 SC
1608
―The definition of ‗decree‘ contained in Section 2(2) read with the
provisions contained in Order 20, Rule 18(2) as also Order 26,
Rule 14 indicate that a preliminary decree has first to be passed
in a partition suit and thereafter a final decree is passed for
actual separation of shares in accordance with the proceedings
held under Order 26. There are, thus, two stages in a suit for
partition. The first stage is reached when the preliminary decree
is passed under which the rights of the parties in the property in
question are determined and declared. The second stage is the
stage when a final decree is passed which concludes the
proceedings before the Court and the suit is treated to have come
to an end for all practical purposes. Sub-Rule (2) of Rule 18
would indicate that the Court has to pass a preliminary decree
where it cannot immediately partition the property in respect of
which the suit was filed‖., Mool Chand v. Dy. Director,
Consolidation, AIR 1995 SC 249
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A member of a Joint Hindu Family can file a suit for partition as

well as for rendition of accounts. A Preliminary decree can also be
passed for partition and for rendition of accounts. A plaintiff can
pray for an enquiry into the profits realised by the defendants at
the stage of the preparation of the final decree though such
prayer had not been made in the plaint, nor such direction has
been given in the preliminary decree. It is necessary to demand
such an enquiry in order to adjust equities between the parties. It
will be within the discretion of the Court to allow such prayer on
the facts and circumstances of each case., Indra Deo Prasad
Singh v. Sheo Nath Prasad Singh, A.I.R. 1980 Pat. 201 (F.B.)
Limitation for drawing up final Decree - Where in a partition

suit, the Court passes decree declaring plaintiffs‘ share, the
decree is preliminary in nature and a final decree proceedings
can be initiated at any point of time as no limitation is provided
thereof. Kamla Bai Patel v. Vidhyawati Patel, AIR 2009 M.P. 41.
Issuance of commission for partition. - As regards the

commissions issued for partition, it must be recognized, that in
the ultimate analysis the Commissioner discharges the function
of the Court itself. It is only as a matter of convenience, that the
work is entrusted to him. Obviously, by treating him as Officer of
Court, the Legislature did not subject him to be examined as a
witness. Further, the report submitted by a Commissioner is not
going to be the final word, on the subject. At the most, he can
indicate that the property can be divided and that the shares can
be allotted in a particular manner. It is always open to the parties
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concerned, to put forward their objections or make suggestions at

variance with, what is indicated, in the report of the
Commissioner. Ultimately, it is for the Court to pass the final
decree, taking into account, the report of the Commissioner, and
the objections of the parties. Subjecting the Commissioner to
cross-examination as a witness, in such matters, apart from not
being provided for under the Law, does not advance the purpose,
for which he was appointed. The reason is that, unlike in the
case of reporting the physical features, or undertaking scientific
investigation, the Commissioner does not vouch for any
particular state of affairs. While in the former case, it is a finding
based upon observations; in the latter, it is an opinion rendered
by him. Further, the former is suggestive and in the latter, the
Commissioner is accountable for the findings arrived at by
him. There exists a discernable difference between the two,
notwithstanding the fact that both are subject to acceptance or
rejection, by the Court. It can be said without fear of
contradiction, that howsoever well-versed and perfect, a
Commissioner may be, he cannot bring about division of
properties or allotment of shares with mathematical precision,
and to the satisfaction of one and all. Notwithstanding such
deficiencies, the report submitted by the Commissioner in the
final decree proceedings will constitute valuable material for
beginning the exercise of division and allotment. The parties
would be free to put forward their contentions, and ultimately it
is for the Court, to pass a final decree, in such a way, as to bring
about a just and equitable partition of the properties. Further,
even if anybody is aggrieved by the partition, he can canvass his
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grievance before an Appellate Court. Viewed from any angle,

subjecting the Commissioner to cross-examination, would not
serve any purpose, in such matters., Damodar Reddy (Died
through L.Rs.) v. M. Mohan Reddy, AIR 2007 A.P. 31.
More than one preliminary and final Decrees whether

possible— (Yes)
Now it is settled law that there can be more than one preliminary
decree and similarly there can be more than one final decree.,
Indra Deo Prasad Singh v. Sheo Nath Prasad Singh, A.I.R. 1980
Pat. 201 (F.B.)
Unless a final decree is passed in a suit for partition, the Court is
empowered to determine the share of the parties again and again
in the preliminary decree on account of taking into consideration
subsequent events, like death of a co-sharer, etc.,
Hanumantappa Dyammappa Jadar v. Mallavva & Ors., AIR 1996
Kant. 183:
There is nothing in the Code which prohibits passing of more
than one preliminary decree if in the facts and circumstances of a
case and in consideration of equity and justice, such a variation
is warranted., Kalyan Kumar Basak v. Salil Kumar Basak, AIR
1989 Cal 159
Where after the preliminary decree had been passed and there
was modification of shares pursuant to the death of one of the
parties, a second preliminary decree can be passed in partition
suits by which shares allotted in preliminary decree already
passed can be amended. If there is dispute between surviving
parties and that dispute is decided, the decision amounts to
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decree. So long as final decree has not been passed there can be
more than one preliminary decree. Smt. Sumabai v. Basagouda
Rama Sankapal, 1998(4) C.C.C. 620 (Kant.).
Commission to make partition of immovable property (Order

26 Rule 13)—Where a preliminary decree for petition has been
passed, the Court may, in any case not provided for by Section
54, issue a commission to such person as it think fit to make the
partition or separation according to the rights as declared in such
decree.
Section 54 of C.P.C.- Partition of estate or separation of
share.—Where the decree is for the partition of an undivided
estate assessed to the payment of revenue to the Government or
for the separate possession of a share of such an estate, the
partition of the estate or the separation of the share shall be
made by the Collector or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with the
law (if any) for the time being in force relating to the partition, or
the separate possession of shares of such estates.
Shub Karan Bubna v. Sita Saran Bubna, 2009(9) SCC 689
In regard to estates assessed to payment of revenue to the
government (agricultural land), the Court is required to pass only
one decree declaring the rights of several parties interested in the
suit property with a direction to the Collector (or his subordinate)
to effect actual partition or separation in accordance with the
declaration made by the Court in regard to the shares of various
parties and deliver the respective portions to them, in accordance
with Section 54 of Code. Such entrustment to the Collector under
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law was for two reasons. First is that Revenue Authorities are
more conversant with matters relating to agricultural lands.
Second is to safeguard the interests of government in regard to
revenue. The second reason, which was very important in the
19th century and early 20th century when the Code was made,
has now virtually lost its relevance, as revenue from agricultural
lands is negligible. Where the Collector acts in terms of the
decree, the matter does not come back to the Court at all. The
Court will not interfere with the partitions by the Collector,
except to the extent of any complaint of a third party affected
thereby.
Procedure of Commissioner (Order 26 Rule 14)—(1) The
Commissioner shall, after such inquiry as may be necessary,
divide the property into as many shares as may be directed by
the order under which the commission was issued, and shall
allot such shares to the parties, and may, if authorized thereto by
the said order, award sums to be paid for the purpose of
equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the
Commissioners (where the commission was issued to more than
one person and they cannot agree) shall prepare and sign
separate reports appointing the share of each party and
distinguishing each share (if so directed by the said order) by
metes and bounds. Such report or reports shall be annexed to
the commission and transmitted to the Court; and the Court,
after hearing any objections which the parties may make to the
report or reports, shall confirm, vary or set aside the same.
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(3) Where the Court confirms or varies the report or reports it

shall pass a decree in accordance with the same as confirmed or
varied; but where the Court sets aside the report or reports it
shall either issue a new commission or make such other order as
it shall think fit.
Expenses of commission to be paid into Court (Order 26 Rule
15)—Before issuing any commission under this Order, the Court
may order such sum (if any) as it thinks reasonable for the
expenses of the commission to be, within a time to be fixed, paid
into Court by the party at whose instance or for whose benefit the
commission is issued.
Powers of Commissioners (Order 26 Rule 16)—Any
Commissioner appointed under this Order may, unless otherwise
directed by the order of appointment:
(a) examine the parties themselves and any witness whom
they or any of them may produce, and any other person whom
the Commissioner thinks proper to call upon to give evidence in
the matter referred to him;
(b) call for and examine documents and other things relevant
to the subject of inquiry;
(c) at any reasonable time enter upon or into any land or
building mentioned in the order.
Parties to appear before Commissioner (Order 26 Rule 16)—
(1) Where a commission is issued under this Order, the Court
shall direct that the parties to the suit shall appear before the
Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the
Commissioner may proceed in their absence.
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Scope- Objection against final Decree proceedings- Party

raising objection cannot be deprived of examining other witnesses
to substantiate its objections.
It is true that a decree, whether preliminary or final, is formal
expression of an adjudication which, so far as regards, the Court
expressing it, conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit.
The Court, therefore, may not have a suo motu power to amend a
decree but the same would not mean that the Court cannot
rectify a mistake. If a property was subject matter of pleadings
and the Court did not frame an issue which it ought to have
done, it can, at a later stage, when pointed out, may amend the
decree. Thus, property can be added in the list of properties after
a preliminary decree is passed in a partition suit and Section 97
which provides for an appeal against preliminary decree, would
not be a bar to file an application for amendment of a decree.
S.Satnam Singh v. Surender Kaur, AIR 2009 SC 1089.
The date of valuation of the properties in a suit for partition

- Ordinarily, it has to be the date of the passing of the final
decree and not the date of filing of the suit for partition. In a
given case, however, there may be exception of this general rule.
It is a matter of common knowledge that such suits for partition
take considerable time for disposal. There is a big time lag
between date of filing of the suit and date of the decision thereof.
There is also considerable lapse of time between passing of
preliminary decree and passing of final decree. A suit was filed in
the year 1948 and preliminary decree proceedings were finalized
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in 1971 by decision of the Hon‘ble Supreme Court. Thereafter,

more than 30 years lapsed the parties are still no way near the
final partition. In deciding in 2002, it would be assured if it was
to be held that the valuation of 1940 or 1948 should be taken. It
is also possible that in a given case, the value of one property
may appreciate drastically while not so in the case of other
properties or it may even decline and some of the parties may be
in possession of those properties. It has been the endeavour of
the Courts in such suits to protect, preserve and respect the
possession of the parties as far as possible. While so protecting,
there has to be equalization of shares which has been recognized
in law ―by making a provision for payment of owelty.‖ The actual
partition is effected by passing of the final decree. The valuation
has, thus, to be as on the date of final decree., M. L. Subbaraya
Setty (Dead) by LRs. & Ors. v. M. L. Nagappa Setty (Dead) by LRs.
and Ors., 2002 (3) Supreme 484.
Go to Index
Page 221 of 401

CHAPTER II SPEEDY DISPOSAL OF INTERLOCUTORY

APPLICATION IN CIVIL CASES
(1) Striking out or Addition of parties-(Order 1 Rule

10(2) Civil Procedure Code)-
Scope: - The power of the Court to join any person necessary for
final adjudication to dispute and for effective implementation of
the order or decree to be passed, is available under Order I Rule
10, the same has to be exercised judiciously and depending upon
the facts and circumstances of each case. Merely because a
person approaches the Court with some unsustainable and
uncorroborated claim, such a person cannot be allowed to join as
party to the suit. If a person wants to be joined as party to the
suit, he has to make out a prima facie case about the necessity of
his presence for final adjudication of the dispute between the
parties to the proceedings and for effective disposal of the case
before the Court. In fact, the test for determination for the
question relating to the necessity of joining a person or the party
to a proceeding is well settled. Unless there is a right to some
relief against such person in respect of the matter involved in the
proceedings in question on account of independent right in
favour of such person but not through the persons already on
record, and it would not be possible to pass effective decree in the
absence of such person as the party to the proceedings, it is not
open for such person to make any inroads in the proceedings.
This Rule provided inter alia for adding parties or transposing
plaintiff as defendant or defendant as plaintiff for effectually and
completely adjudicating the disputes. Even mistake committed by
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a party in the array of parties may be rectified by the Court

rather it is the duty of the Court to see that parties are properly
arrayed. Doctrine that plaintiff is dominus litus of suit always
subject to basic exception. Exception is whether Court comes to
conclusion that presence of party necessary before Court for
proper and final determination of matter in controversy.
Discretion of Court not dependent upon consent of plaintiff.
Merits of claims are of no consequence. Court at this stage not
concerned with validity or otherwise of suit but presence of that
party if necessary before Court. Court could permit impleadment
of such party to avoid prejudice to any of parties to suit. The
object of the provisions is to avoid multiplicity of suits and to
ensure that the dispute may be finally determined in the
presence of all parties interested without delay and expenses.
(Order 1 Rule 10(2) Civil Procedure Code)- The Court may at
any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to
the Court to be just, order that the name of any party improperly
joined, whether as plaintiff or defendant, be struck out, and that
the name of any person who ought to have been joined, whether
as plaintiff or defendant, or whose presence before the Court may
be necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next
friend or as the next friend of a plaintiff under any disability
without his consent.
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Scope : The purpose of this provision is to bring before the Court

at the same time, all persons interested in the dispute so that the
dispute may be finally determined at the same time in the
presence of all the parties without the delay, inconvenience and
expenses of several actions and trials and inconclusive
adjudications. Thus, mere interest of a party in the suits of
litigation cannot be a true test for being impleaded. The object of
Order 1 Rule 10 is not to change the scope or character of the
suit by addition of new parties and to enable them to litigate their
own independent claims but simply to hold them to avoid
unnecessary litigation which might otherwise become necessary.
The provisions of Rule 10(2) confers very wide powers on the
Court regarding joining of the parties. Such powers have to be
exercised on sound judicial principles keeping in mind all the
facts and circumstances of the case. Two considerations must
guide judicial discretion while exercising power under this
provision. First is that the plaintiff is the dominus litis and he is
best judge of his interest. It is therefore for him to choose his
opponent from whom he claims relief and, normally, the Court
should not compel him to fight against a person whom he does
not want to fight and from whom he does not claim any relief;
and secondly if he is satisfied that the presence of any person is
necessary to effectively and completely adjudicate all the disputes
between the parties, irrespective of the wishes of the plaintiff, the
Court may exercise power and join a person as party to the suit.
This power can be exercised at any stage of the suit either
on the application of the parties or even suo moto. Under this
Rule, Court can, even at final hearing stage, add parties. Court
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can add a Government or other authority as a defendant at any

stage or the suit.
Where a stranger cannot prove that he was tenant or sub-tenant
he cannot be impleaded as party. Gurmit Singh Bhatia Vs Kiran
Kant Robinson and Ors 2019(3) JLJR 418 SC
Appellant purchaser who purchased the property during the
pendency of the suit filed an application for impleadment as a
defendant in the suit. Plaintiffs filed the suit against the vendor -
owner of the suit property for specific performance of
agreement to sell. Even though there was an injunction against
the owner restraining him from transferring and alienating the
suit property, he executed the sale deed in favour of the
appellant. In a suit for specific performance of contract to sell,
the lis between the vendor and the person in whose favour
agreement is executed shall be gone into and it is also not open
to the Court to decide whether any other parties have acquired
any title or possession over the suit property. It was held that the
plaintiff is the dominus litus and cannot be forced to add parties
against whom he does not want to fight unless there is
compulsion of the Rule of law. Udit Narain Singh Malpharia vs
Additional Member, Board of Revenue, Bihar and another AIR
1963 SC 786
The one whose presence is necessary for effective adjudication of
the dispute is a necessary party and the one in whose absence an
effective order can be made, but whose presence is necessary for
a complete and final decision on the question involved in the
proceeding is a proper party. Vishnu Bhagat & others Vs. Gopi
Bhagat and others, 2019 (2) PLJR 133 Pat
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Under Order 1 Rule 10, one can be added as a party to a suit if

he has interest in the suit property, but cannot be added as co-
plaintiff against the wishes of the plaintiff.
In Gurmit Singh Bhatia v .Kiran Kant Robinson and Others,
2019 SCC OnLine SC 912, the Hon‘ble Supreme Court has held
that if the plaintiff who has filed a suit for specific performance of
the contract to sell, even after receiving the notice of claim of title
and possession by other persons (not parties to the suit and even
not parties to the agreement to sell for which a decree for specific
performance is sought) does not want to join them in the pending
suit, it is always done at the risk of the plaintiff because he
cannot be forced to join the third parties as party-defendants in
such suit. The aforesaid observations are made by this Court
considering the principle that plaintiff is the dominus litis and
cannot be forced to add parties against whom he does not want
to fight unless there is a compulsion of the rule of law.
Marirudraiah and Ors vs B.Sarojama and Ors 2009(12) SCC710
Hon‘ble Supreme Court has observed that the Courts are not
supposed to encourage pendente-lite transactions and regularize
their conduct by showing equity in their favour.
Bellamy vs. Sabine 1957 DeG and J 566
It would be plainly impossible that any action or suit could be
brought to a successful termination, if alienation pendente lite
were permitted to prevail. The plaintiff would be liable in every
case to be defeated by the defendant's alienating before
Judgment or Decree, and would be driven to commence his
proceeding de novo, subject again to be defeated by the same
course of proceeding.
Page 226 of 401

K.N. Aswathnarayana Setty v. State of Karnataka, (2014) 15 SCC

394 It has been held in the following words-―11. The doctrine of
lis pendens is based on legal maxim ―ut lite pendente nihil
innovetur‖ (during a litigation nothing new should be introduced).
This doctrine stood embodied in Section 52 of the Transfer of
Property Act, 1882. The principle of ―lis pendens‖ is in
accordance with the equity, good conscience or justice because
they rest upon an equitable and just foundation that it will be
impossible to bring an action or suit to a successful termination
if alienations are permitted to prevail. A transferee pendente lite
is bound by the decree just as much as he was a party to the
suit. A litigating party is exempted from taking notice of a title
acquired during the pendency of the litigation. However, it must
be clear that mere pendency of a suit does not prevent one of the
parties from dealing with the property constituting the subject-
matter of the suit. The law simply postulates a condition that the
alienation will, in no manner, affect the rights of the other party
under any decree which may be passed in the suit unless the
property was alienated with the permission of the Court. The
transferee cannot deprive the successful plaintiff of the fruits of
the decree if he purchased the property pendente lite. ( K. Adivi
Naidu v. E. Duruvasulu Naidu, (1995) 6 SCC 150] , [Venkatrao
Anantdeo Joshi v. Malatibai, (2003) 1 SCC 722] , [Raj
Kumar v. Sardari Lal, (2004) 2 SCC 601] and [Sanjay
Verma v. Manik Roy, (2006) 13 SCC 608] .)
Page 227 of 401

Amit Kumar Shaw and Another vs. Farida Khatoon, 2005 (11)
SCC 403
A transferee pendente lite cannot claim his addition in the
pending suit as of right, so the Court has a discretion to make
him a party; he can be added as a proper party only if his interest
on the subject matter of the suit is substantial and not just
peripheral.
Anokhe Lal vs Radha Mohan Prasad 1996(8) Supreme 75
If it is found that addition of a party would result in de novo trial,
the application could not be allowed. Even otherwise the Court
should have been very circumspect in dealing with application of
third party seeking leave to become party in the suit when the
plaintiff was opposed to it. If consequence of such addition would
involve a de novo trial the Court should normally have disallowed
the application.
Stranger to a contract cannot be added as party. In a suit for
specific performance of contract for sale, third parties to the
contract are not necessary parties to the suit.
Order 1 Rule 10(2) empowers the Court to implead any person as
party suo moto, who ought to have been joined, whether as
plaintiff or defendant, or whose presence before the Court may be
necessary in order to effectually and effectively to adjudicate all
the questions involved in the suit.
Razia Begum vs Shabjadi Anwar Begum, AIR 1958 SC 886 is the
leading case which has laid down the principles for exercising
power under this provision as under:
1. The question of addition of parties under Rule 10 of Order 1
of the Code is generally not one of initial jurisdiction of the
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Court, but of Judicial discretion which has to be exercised

in view of all the facts and circumstance of a case; but in
some cases, it may raise controversy regarding the power of
the Court, in contradistinction to the inherent jurisdiction of
the Court;
2. In a suit relating to property, in order that a person may be
added as a party, he should have direct interest as

distinguished from commercial interest in the subject-
matter of the litigation;
3. Where the subject-matter of litigation is declaration as
regards status or legal character, the rule of present or

direct interest may be relaxed to in a suitable case where
the Court is of the opinion that by adding that party, it will
be in a better position to completely and effectually
adjudicate upon the controversy.
No party can be added or substituted as plaintiff without his
consent. It is the settled law that it is open to the Court to add
any such person as necessary party in the suit to enable the
Court to effectively adjudicate the question involved in the suit.
For exercising power under this Rule the Court has to come to a
finding that the party is necessary or proper party to a suit.
Smt. Motijharo Devi vs. Saroj Singh 2017 (4) PLJR 125
Code of Civil Procedure, 1908- Order I, Rule 10(2) – A suit was
filed for declaration of title over suit land wherein the petitioner
filed application under Rule 10 (2) for impleadment as defendant
taking plea that she has got easementary right to use the suit
land. It has been held that the petitioner has her independent
cause of action against plaintiff on the basis of her claim of
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easementary right and, therefore, she cannot be made party in

the suit. It has been further held that the plea that petitioner
should be impleaded as party to avoid multiplicity of litigation
cannot be sustained as the object of Order 1, Rule 10(2) is not to
avoid multiplicity of litigation though the same may be a
desirable consequence of the provision and the order rejecting
prayer of petitioner upheld.
Whose presence before the Court may be necessary? A person
may be added as a defendant to a suit though no relief may be
claimed against him, provided his presence is necessary for a
complete and final decision of the questions involved in the suit.
Such a person is called proper party as distinguished from a
necessary party. The inquiry contemplated under Order 1 Rule
10 (2) is very narrow and is referable only to the cause of action
as projected by the plaintiff. A third party also cannot be added
as co-plaintiff without the consent of the original plaintiff except
when the original plaintiff in a representative capacity wants to
abandon the cause by withdrawing the suit and such a
withdrawal is likely to affect that third party also.
Explaining the difference between the necessary party and a
proper party, in Gonsalo De Filomena Luis, etc Versus Inacio
Piedade Hildeberte Fernandes and others, etc 1976 SCC
OnLine GDD 14 : AIR 1977 GDD 4 it has been observed : ―A
necessary party is a person who ought to have been joined as a
party and in whose absence no effective decree could be passed
at all by the Court‖. If a necessary party is not impleaded the suit
itself is liable to be dismissed. A proper party is party, who
though not a necessary party, is a person whose presence would
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enable the Court to completely, effectively and adequately

adjudicate upon all matters in dispute in the suit, though he
need not be person in who in favour of or against whom the
decree is to be made.
A necessary party is a person who has an interest in the
subject matter involved in the suit and who could be affected by
the decision. A party should be considered a necessary party if
these two conditions are fulfilled.
a) There must be a right to some relief against party not
joined, i.e. no decree can be passed without affecting the

rights of the absentee part.
b) The presence of the absent party should be required to
effectively adjudicate upon and settle all questions in

dispute.
In a partition suit, a person who is not at all interested in the
result of the suit and who is not entitled to any share or interest
in the suit property on the plaint is not a necessary or proper
party in the case.
Parties cannot be added to introduce a new cause of action –
Parties cannot be added so as to alter the nature of the suit
Example : In a suit for rent, party should not be added so as to
change it to suit for title, though such a question might
incidently be investigated, nor should a person to whom the
tenant have sublet the premises be impleaded in a suit for
ejectment by the landlord Importers and Manufacturers Ltd. v.
Pheroze Framroze Taraporewala, 1953 SCR 226 : AIR 1953 SC 73
A suit for specific performance of an agreement of sale cannot be
converted at the instance of the stranger to the agreement into
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one of title. Formal addition of parties and consequential

amendment of plaint does not however alter the nature of the
suit.
In a proceeding for invocation of bank guarantee the Principal
debtor shall not be a necessary party.
In a suit filed for specific performance of contract against the
vendor and subsequent purchaser and the vendor dies but his
heirs are not impleaded, in such a case, the suit cannot proceed
only against the subsequent purchaser and shall accordingly
abate.
Where the Court directed joining of the state to do substantial
justice, notice under Section 80 was not necessary.-- Chairman
and Anr vs Mahadeo Prasad and Ors AIR 1990 NOC 49(Pat)
Improper addition of plaintiff or defendant - Order 1 Rule 10

(2) does not enable a Court to override the effect of Order 2 Rule
3. If any person who ought to have been joined as plaintiff does
not consent to join as plaintiff, he may be made a defendant in
the suit.
Transposing defendant as plaintiff -
The Court has power under sub-Rule 2 to transfer a defendant to
the category of plaintiff. This can be done suo-motu or on the
application of any of the defendants. In the case of difference
between co-plaintiff the proper course is to be make an order that
the name of one of them be struck out as plaintiff and added as
defendant.
Example – In a suit for specific performance between the
purchaser of the property and the builder the owner of the
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property is neither necessary nor proper party to the suit (Anil

Kumar vs. Gyan Deo and sons AIR 1995 Del 43 : 1994 SCC
OnLine Del 118 )
In a suit for specific performance of agreement the plot has been
leased out by the municipality in favour of the original lessee, but
the plot was developed and building constructed on it by a
company. After the purchaser entered into an agreement, the
original lessee transferred his right, title and interest in the land
and building in favour of the company. The purchaser also
entered into an agreement with the company. Under this
circumstance, it was held that suit would not fail if the original
lessee, who was the original defendant is dropped from the array
of parties.
In a suit for specific performance of contract, where the
defendant died and his legal representatives were prima facie
found to be the co-owners of the property and had semblance of
title and were not merely busy body or interlopers. It was held
that they were entitled to file defense by way of additional written
statement (Sumati Bai vs. Paras Finance Company AIR 2007 SC
3166)
Partition Suit-- In a suit for partition all persons who have

interest in the subject matter of the suit are necessary parties. A
partition suit is not complete without necessary parties to the
suit. This proposition of law is elementary.
Limitation Act Section 21
Page 233 of 401

Section 21 of the Limitation Act, 1963 provides amongst other

things that when, after the institution of a suit, a party is added
as a plaintiff or defendant, the date of addition is to be
considered as regards that party as the date of the institution of
the suit. The date of addition is the date of the application for
impleading the new party and not the date of the order thereon.
However, if the Court is satisfied that the omission to include a
new plaintiff or defendant was due to a mistake made in good
faith, it may direct that the suit as regards such plaintiff or
defendant be deemed to have been instituted on any earlier date.
This provision of law has been held to relate only to the addition
of parties under sub-Rule (2) and not under sub-Rule (1).The
result is that a party may be substituted or added under sub-
Rule (1) even after the period of limitation. It has been held under
this Section, that where necessary parties are not joined within
the period of limitation, the suit must be dismissed. Necessary
parties means parties necessary to the constitution of the suit
that is, persons whose joinder is necessary to enable the Court to
award such relief as may be given in the suit as framed.
Order 1 Rule 10 does not deal with substitution of legal
representatives of a deceased.
Order 1 Rule 10(2) covers two types of cases: (a) of a party who
ought to have been joined but not joined and is a necessary
party, and (b) of a party without whose presence the question
involved in the case can not be completely decided. The former is
a necessary party and the later is a proper party and in either of
the case Order 1 Rule 1)(2) is attracted.
Page 234 of 401

AIR 1970 Patna 1 Ram Niranjan Das vs. Loknath Mandal &
others.
A co-owner alone can institute a suit for recovery of
possession of land held by him along with other persons against
a trespasser who dispossessed all the co-owners, and can obtain
a decree for recovery of possession of the entire area, the
judgment of the suit, however, not affecting the rights of the
other co-owners which would remain intact. AIR 1951 PAT 315
has been overruled.
2016 (3) JBCJ 651 HC – Sambhu Sharan Singh vs. Sushma
Baliase- Order 1 Rule 10 Civil Procedure Code and Section 52 of
the Transfer of Property Act – In a suit for Specific Performance of
a contract a purchaser normally should be impleaded. A
transferee pendente lite can be added as party if his interest in
the subject matter of the suit is substantial and not just
peripheral.
2010 (3) J.C.R 525 (Jhr) Jamila Bibi vs. Hasmuddin Ansari:-
Order 1 Rule 10 C.P.C:- Impleadment sought in partition suit
as defendant being grandchildren of the recorded tenant refused.
It has been held that the Court below committed error in
rejecting the application.
2009 (4) J.C.R. 231 (Jhr) Sarita Kataruka vs. Jai Kishor Nath
Sahdeo:- Order 1 Rule 10 C.P.C. - Suit Property being used for
commercial activities – Persons seeking impleadment is also
share-holder in the disputed premises along with the original
plaintiffs as well as with original defendants.- Joining a party
defendant is necessary for the passing of effective decree in the
suit.- Order of refusal quashed.
Page 235 of 401

Biru Sao vs Manoj Kr Soni 2009(1) JLJR 45 Order 22 Rule 10 ,

Order 1Rule 10,
Section 52 of the TP Act – The petition for impleadment under

Order 1 Rule 10 read with Order 22 Rule 10 was rejected by the
impugned order of the Court below. It has been held that the
transferee cannot prosecute the suit on the same cause of action
regarding non-payment of rent for the period prior to the transfer
of the suit property. Similarly transferee cannot prosecute suit on
ground of personal necessity taken by the transferor. However
where the cause of action was not personal to the original
plaintiff, transferee can step into the shoes of the transferor for
instance where the eviction is filed on the ground of damages to
the suit property.
Zubaida Khatoon vs Nabee Hasan 2004(1) SCC191
Referring to the above case law the Hon‘ble Supreme Court in
Sunil Gupta vs Kiran Girhotra 2007(8) SCC 506 held that
transferee pendente lite cannot be impleaded as a party without
leave of the Court.
Whether intervener is a necessary or a proper party in the suit
for eviction filed by the petitioner—Petitioner filed suit for eviction
of defendants on ground of default in payment of rent-- Counter-
Claim of defendant that sale is null and void-- Application filed by
the intervener that suit scheduled property originally allotted to
her father who died leaving behind her an her brother--- Claim of
the intervener that she had half share in the property need not be
adjudicated in the eviction suit. Defendant was tenant under the
plaintiff or not can be decided in the eviction suit.
Page 236 of 401

Pankajbhai Rameshbhai Zalavadiya v. Jethabhai Kalabhai

Zalavadiya, (2017) 9 SCC 700
18. In the matter on hand, since the purchaser of the suit
property i.e. Defendant 7 has expired prior to the filing of the
suit, his legal representatives ought to have been arrayed as
parties in the suit while presenting the plaint. As such
impleadment was not made at the time of filing of the plaint in
view of the fact that the plaintiff did not know about the death of
the purchaser, he cannot be non-suited merely because of his
ignorance of the said fact. To do justice between the parties and
as the legal representatives of the purchaser of the suit property
are necessary parties, they have to be impleaded under Order 1
Rule 10 of the Code, inasmuch as the application under Order 22
Rule 4 of the Code was not maintainable.
A bare reading of this provision namely, second part of Order 1

Rule 10 sub-Rule (2) of the Civil Procedure Code would clearly
show that the necessary parties in a suit for specific performance
of a contract for sale are the parties to the contract or if they are
dead their legal representatives as also a person who had
purchased the contracted property from the vendor. In equity as
well as in law, the contract constitutes rights and also regulates
the liabilities of the parties. A purchaser is a necessary party as
he would be affected if he had purchased with notice of the
contract, but a person who claims adversely to the claim of a
vendor is, however, not a necessary party. From the above, it is
now clear that two tests are to be satisfied for determining the
question who is a necessary party. Tests are - (1) there must be a
Page 237 of 401

right to some relief against such party in respect of the

controversies involved in the proceedings (2) no effective decree
can be passed in the absence of such party. Kasturi vs
Uyyamperumal, AIR 2005 SC 2813, 2005 6 SCC 733, 2005 3
Supreme 574
Nasim Khan and others vs The State of Jharkhand (then Bihar),

represented by the Deputy Commissioner, 2014 SCC OnLine
Jhar 1541 It is well-settled that the plaintiff in a suit being
‗dominus litis‘ chooses the persons against whom he wishes to
litigate. The plaintiff cannot be compelled to sue a person against
whom he does not seek any relief. However, there is exception to
this general rule and under Order 1 Rule 10(2) C.P.C., the Court
has power to add any person who has been found to be a
necessary party or a proper party. However, Order 1 Rule 10(2)
C.P.C. does not give an absolute right to any party to be
impleaded as a party but it only invests a discretion in the Court
to add a party at any stage of the proceeding.
In ―Udit Narain Singh Malpaharia v. Addl. Menher, Board of
Revenue, Bihar, reported in ―AIR 1963 SC 786‖, the Hon‘ble
Supreme Court has held that a necessary party is one without
whom, no order can be made effectively and a proper party is one
in whose absence an effective order can be made but whose
presence is necessary for a complete and final decision of the the
question involved in the proceeding.
In case of non-joinder of a party, it is to be decided whether it is
fatal or not. Non-joinder of necessary party makes a suit fatal
when no trial can be made in absence of the party, who has not
Page 238 of 401

been joined by plaintiff. It depends on the facts and

circumstances of the case. In a suit for declaration and
permanent injunction if a person is not made a party, the decree
is not binding upon him. But the decision will not be invalid in
that regard. Taher Ali Khan v. Abdul Hakim and Ors., AIR 2006
Cal 124:
In a suit for eviction of the tenant from two premises out of which
one premises was in possession of the tenant and in the other he
was running business in partnership though lease-deed was
signed by the tenant, the partnership firm was not necessary
parties and suit for eviction against the tenant regarding both
premises was maintainable. Even if the defendant petitioner has
been carrying on any business under the name and style of M/s
Indrapuri along with the other two lady parties, who even on the
petitioners own admission in his evidence were sleeping partners,
the suit cannot be said to be bad for non-impleading M/s.
Indrapuri as a party thereto. Thus M/s. Indrapuri was neither a
necessary party nor a proper party and in this view of the matter,
the question of the suit being hit by the proviso to Order 1, Rule
9 of the Code does not arise. Padam Singh Jain v M/s Chandra
Brothers & Ors., AIR 1990 Pat 95.
Keshwar Mahto v. Govind Mahto, 2003 (1) CCC 333 (Jharkhand).

It has been held that the proceedings as against any person
added as defendant shall be deemed to have begun only on the
service of the summons. Object of Order, 1, Rule 10 is to bring
before Court all persons who are parties to dispute relating to
Page 239 of 401

issue in a position to effectually and completely adjudicate upon

and settle all questions involved in suit.
Order 1, Rule 10, sub-clauses (1) and (2) place no restriction

either on period within which such application is required to be
filed or as to person filing it. Only requisite while allowing such
application is that Court should be satisfied that such
impleadment was essential for effective and complete
adjudication of all questions involved in suit. Sita
Devi v. Shamsher Prasad Gupta, AIR 2010 Sik.8.
Go to Index
Page 240 of 401

2- Striking out & Amendment of Pleadings
Striking out pleadings, (Order 6 Rule 16)—The Court may at

any stage of the proceedings order to be struck out or amended
any matter in any pleading:
(a) which may be unnecessary, scandalous, frivolous or
vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair
trial of the suit, or
(c) which is otherwise an abuse of the process of the Court.
Scope : In an election petition, necessary averment of facts

constituting an appeal on the ground of ‗his religion‘ to vote or to
refrain from voting would be material facts within the meaning of
Clause (a) of sub-Section (1) of Section 83 of the Act. If such
material facts are missing, they cannot be supplied later on, after
the expiry of period of limitation for filing the election petition and
the plea being deficient, can be directed to be struck down under
Order VI Rule 16 of the Code of Civil Procedure, 1908 and if such
plea be the sole ground of filing an election petition, the petition
itself can be rejected as not disclosing a cause of action under
Clause (a) of Rule 11 of Order VII of the Code, Harmohinder
Singh Pradhan v. Ranjeet Singh Talwandi, 2005 SC 2379 : 2005
(5) SCC 46; Sardar Harcharan Singh Brar v. Sukh Darshan
Singh, AIR 2005 SC 22.
Expunction of remarks - The Court has inherent powers to
expunge any matter from the petition or affidavit under Order 6,
Page 241 of 401

Rule 16, J.B. Patnaik v. Benett Coleman and Co. Ltd. & Anr., AIR
1990 Ori. 107.
Normally, a Court cannot direct or dictate the parties as to what

their pleading should be and how they should prepare their
pleadings. If the parties do not violate any statutory provision,
they have the freedom to make appropriate averments and raise
arguable issues. The Court can strike off the pleadings only if it is
satisfied that the same are unnecessary, scandalous, frivolous or
vexatious or tend to prejudice, embarrass or delay the fair trial of
the suit or the Court is satisfied that suit is an abuse of the
process of the Court. Since the striking off pleadings has serious
adverse impact on the rights of the concerned party, the power to
do so has to be exercised with great care and circumspection.
Abdul Razak (D) Through L. Rs. vs Mangesh Rajaram Wagle
2010 2 AIR(Bom)(R) 587, 2010 0 Supreme(SC) 24
Go to Index
Page 242 of 401

(III) Amendment of Pleadings (Order 6 Rule 17 Civil

Procedure Code)
The Court may at any stage of the proceedings allow either
party to alter or amend his pleadings in such manner and on
such terms as may be just, and 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. (Order 6
Rule 17)
Scope : It is now well settled by various decisions of the Hon‘ble

Supreme Court as well as those by the High Courts that the
Courts should be liberal in granting the prayer for amendment of
pleadings unless serious injustice or irreparable loss is caused to
the other side or on the ground that the prayer for amendment
was not a bona fide one. In this connection, the observation of
the Privy Council in Ma Shwe Mya v. Mating Mo Hnaung, (1920-
21) 48 IA 214 : AIR 1922 PC 249 : (1922) 24 BOMLR 682 may be
taken note of. The Privy Council observed : ―All Rules of Court are
nothing but provisions intended to secure the proper
administration of justice, and it is therefore essential that they
should be made to serve and be subordinate to that purpose, so
that full powers of amendment must be enjoyed and should
Page 243 of 401

always be liberally exercised, but nonetheless no power has yet

been given to enable one distinct cause of action to be
substituted for another, nor to change, by means of amendment,
the subject-matter of the suit.‖, Usha Balashaheb Swami v. Kiran
Appasao Swami, 2007(5)SCC 602 SC.
Order 6 Rule 17 of the Code of Civil Procedure deals with

amendment of pleadings which provides that the Court may at
any stage of the 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. A bare perusal of this provision, it is pellucid
that Order 6 Rule 17 of the Code of Civil Procedure consists of
two parts. The first part is that the Court may at any stage of the
proceedings allow either party to amend his pleadings and the
second part is that such amendment shall be made for the
purpose of determining the real controversies raised between the
parties. Therefore, in view of the provisions made under Order 6
Rule 17 of the Civil Procedure Code it cannot be doubted that
wide power and unfettered discretion has been conferred on the
Court to allow amendment of the pleadings to a party in such
manner and on such terms as it appears to the Court just and
proper. While dealing with the prayer for amendment, it would
also be necessary to keep in mind that the Court shall allow
amendment of pleadings if it finds that delay in disposal of Suit
can be avoided and that the suit can be disposed of
expeditiously. By the Code of Civil Procedure (Amendment) Act,
Page 244 of 401

2002 a proviso has been added to Order 6 Rule 17 which

restricts the Courts from permitting an amendment to be allowed
in the pleadings either of the parties, if at the time of filing an
application for amendment, the trial has already commenced.
However, Court may allow amendment if it is satisfied that in
spite of due diligence, the party could not have raised the matter
before the commencement of trial. Baldev Singh v. Manohar
Singh, 2006(93) AIR 2832 SC
An amendment would generally not be disallowed except where a

time-barred claim is sought to be introduced, there too it would
be one of the factors for consideration or where it changes the
nature of the suit itself or it is mala fide or the other party cannot
be placed in the same position had the plaint been originally filed
correctly, that is to say, the other side has lost sight of a valid
defence by subsequent amendment Punjab National Bank v.
Indian Bank, AIR 2003 SC 2284
Amendment of plaint when not permissible -Respondent No.1

(plaintiff) has filed the suit for partition of the suit land and for
consequential reliefs against the other respondents. In the said
suit, respondent No.1 filed an application for amendment of the
plaint. The Trial Court rejected the said application. The High
Court allowed the Special Civil Application and while setting
aside the order of the Trial Court allowed the amendment
application. It has been held – ―In our view, the Trial Court was
right in rejecting the application. This we say for more than one
reason. First, it was wholly belated; Second, respondent
Page 245 of 401

No.1(plaintiff) filed the application for amendment of the plaint

when the trial in the suit was almost over and the case was fixed
for final arguments; and Third, the suit could still be decided
even without there being any necessity to seek any amendment
in the plaint. In our view, amendment in the plaint was not really
required for determination of the issues in the suit. Vijay
Hathising Shah vs Gitaben Parshottamdas Mukhi, AIR 2019 SC
1119, 2019 5 SCC 360
In this case suit was filed in the year 1993 and at that point of
time, Defendant Nos. 4 to 6 were not made parties to the suit.
Plaintiff Nos. 1 to 5 and Defendants Nos. 1 to 3 were the only
parties. They had filed a joint memorandum for the dismissal of
the suit on 22.04.1993, which was within one or two months of
the filing of the suit. The compromise petition came to be rightly
dismissed by the High Court in RFA No. 297/1994. In the
compromise petition, curiously, it was noted that the joint family
properties were divided by metes and bounds in the year 1972. If
the partition had really taken place in the year 1972 and was
acted upon as per the Panchayat Parikath, then Plaintiff Nos. 1 to
5 would not have filed a suit for partition and separate
possession in the year 1993. Be that as it may, it is clear from
records that the suit was being prolonged on one pretext or the
other by the Plaintiff Nos. 1 to 5 and ultimately, the application
for amendment of the plaint came to be filed on 01.09.2008. By
that time, the evidence of both the parties had been recorded and
the matter was listed for final hearing before the Trial Court. If
there indeed was a partition of the joint family properties earlier,
Page 246 of 401

nothing prevented Plaintiff Nos. 1 to 5 from making the necessary

application for the amendment of the plaint earlier. So also,
nothing prevented them from making the necessary averment in
the plaint itself, inasmuch as the suit was filed in the year 1993.
Even according to Plaintiff Nos. 1 to 5, they came to know about
the compromise in the year 1993 itself. Thus, there is no
explanation by them as to why they did not file the application for
amendment till the year 2008, given that the suit had been filed
in 1993. Though, even when Plaintiff Nos. 1 to 5 came to know
about the partition deed dated 18.05.1972 (Panchayat Parikath)
on 22.04.1993, they kept quiet without filing an application for
amendment of the plaint within a reasonable time. On the
contrary, they proceeded to cross examine PW1 thoroughly and
took more than five years‘ time to get the examination of PW2
completed, and only thereafter filed an application seeking
amendment of the plaint on 01.09.2008, that too when the suit
was posted for final arguments. As mentioned supra, the suit
itself is for partition and separate possession. Now, by virtue of
the application for amendment of pleadings, Plaintiff Nos. 1 to 5
want to plead that the partition had already taken place in the
year 1972 and they are not interested to pursue the suit. Per
contra, Plaintiff No. 6/Respondent No.1 herein wants to continue
the proceedings in the suit for partition on the ground that the
partition had not taken place at all. Having regard to the totality
of the facts and circumstances of the case, we are of the
considered opinion that the application for amendment of the
plaint is not only belated but also not bonafide, and if allowed,
would change the nature and character of the suit. If the
Page 247 of 401

application for amendment is allowed, the same would lead to a

travesty of justice, inasmuch as the Court would be allowing
Plaintiff Nos. 1 to 5 to withdraw their admission made in the
plaint that the partition had not taken place earlier. Hence, to
grant permission for amendment of the plaint at this stage would
cause serious prejudice to Plaintiff No. 6/Respondent No. 1
herein. M. Revanna vs Anjanamma (Dead) By Lrs, AIR 2019 SC
940, 2019 4 SCC 332
To sum up the legal position—(1) The power to allow

amendment is wide and hence the Court should not adopt hyper
technical approach but on the other hand liberal approach
should be general rule particularly in cases were the other side
can be compensated with costs.
(2) The general rule is that the party is not allowed to set up
new case or new cause of action.
(3) Technicalities of law should not be permitted to hamper the

administration of justice between the parties and amendments
are allowed in the pleadings to avoid multiplicity of litigation.
(4) Courts cannot go into the truth or falsity of the proposed

amendments sought for at the time of considering the application
for amendment.
(5) All amendments of the pleadings should be allowed which

are necessary for determination of the real controversies in the
Page 248 of 401

suit provided the proposed amendment does not alter or

substitute a new cause of action on the basis of which the
original lis was raised or defence taken.
(6) All reliefs ancillary to main relief and reliefs, which are in
the nature of additional reliefs should be allowed as general rule.
(7) Even if a party or its counsel is inefficient in setting out its

case initially the shortcoming can certainly be removed but
however the party who is put to inconvenience should be suitable
paid. The Court has to only see that the error is not incapable of
being rectified so long as remedial steps do not justifiably injure
rights accrued.
(8) The delay in filing petition for amendment should be

properly compensated by cost and the error or mistake, if not
fraudulent should not be made a ground for rejecting the
application for amendment of plaint or written statement.
Mode of Amendment—A pleading may be amended by written

alterations in a copy of the document which has been served, and
by additions on paper to be interleaved with it if necessary.
However, where the amendments are so numerous or of such
nature or length that to make written alterations of the document
so as to give effect to them would make it difficult or inconvenient
to read, a fresh document must be prepared incorporating the
amendments. If such extensive amendment is required to a writ
it must be reissued. An amended writ or pleading must be
Page 249 of 401

endorsed with a statement that it has been amended, specifying

the date on which it was amended, the name of the Judge,
master or registrar by whom any order authorizing the
amendment was made and the date of the order or, if no such
order was made, the number of the Rule in pursuance of which
the amendment was made. The practice is to indicate any
amendment in a different ink or type from the original, and the
colour of the first amendment is usually red.
Go to Index
Page 250 of 401

(IV) Substitution of Legal Representative (Order 22

Rule 3&4 C.P.C.)
Procedure in case of death of one of several plaintiffs or of
sole plaintiff, (Order 22 Rule 3)—(1) Where one of two or more
plaintiffs dies and the right to sue does not survive to the
surviving plaintiff or plaintiffs alone or a sole plaintiff or sole
surviving plaintiff dies and the right to sue survives the Court on
an application made in that behalf shall cause the legal
representative of the deceased plaintiff to be made a party and
shall proceed with the suit.
(2) Where within the time limited by law no application is made
under sub Rule(1), the suit shall abate as far as the deceased
plaintiff is concerned, and, or the application of the defendant,
the Court may award to him the costs which he may have
incurred in defending the suit, to be recovered from the estate of
the deceased plaintiff.
Scope : The purpose and object of Order 22, Rule 3 of the Code
is to allow legal representatives to carry on proceedings in the
suit. Any order under Order 22, Rule 3 does not confer any right
of heirship upon the legal representative. In case of any dispute
as to whether a person is entitled to be impleaded as a legal
representative, a Court is required to decide the matter under
Order 22, Rule 5 of the Code by adopting and following a
summary procedure. In-depth inquiry is not required to be held
under Order 22, Rule 5 and an order passed in the said Section
does not operate as res judicata. Order 22, Rule 10 of the Code
on the other hand deals with transfer, inter vivos by the plaintiff
Page 251 of 401

during the pendency of the suit. It operates in cases where the

plaintiff has assigned his rights, title and interest and the same
has devolved upon another person during the pendency of the
suit. Order 22, Rule 10 of the Code does not apply where a
person claims his right as a legal representative. An assignee as
successor in interest is not a legal representative under Order 22,
Rule 3 read with Section 2(11) of the Code but a person on whom
the interest has devolved within the meaning of Order 22, Rule
10 of the Code. The last few words of Rule 3(1) are more
significant than eloquent. The words ―and shall proceed with the
suit‖ etc mean that the Court shall proceed with the suit after the
legal representatives are brought on record. The CPC while
directing that death shall not cause automatic abatement also
directs that the Court shall not proceed with the suit without
bringing the deceased‘s legal representatives as parties before the
Court. This Rule is enacted in recognition of the necessity for the
parties to be present before the Court in an adversary system of
justice. Order 22 further contemplates the bringing in of these
parties within a statutory fixed time. Till then the suit is kept
alive by Order 22.
If the application under this Rule has been made in time, and if it
is not finally disposed of, it cannot be said that the proceedings
abated after the lapse of the prescribed period from the death of
the party. If no order is passed on the application, the
proceedings would be pending till it is passed and the Court
would have to proceed after bringing the legal representatives on
record which is a duty cast upon it under this Rule., Ratanlal
Page 252 of 401

Hanumanbax Sharma and Ors. vs Narendra Manilal Shah and

Anr., A.I.R. 1980 Bom. 135
When a suit is brought by or against a person in a

representative capacity and there is a devolution of the interest
of the representative, the Rule that has to be applied is Order 22,
Rule 10 and not Rule 3 or 4, whether the devolution takes place
as a consequence of death or for any other reason. Order 22,
Rule 10 is not confined to devolution of interest of a party by
death; it also applies if the head of the mutt or manager of the
temple resigns his office or is removed from office. In such a case
the successor to the head of the mutt or to the manager of the
temple may be substituted as a party under this Rule. The word
‗interest‘ which is mentioned in this Rule means interest in the
property i.e., the subject-matter of the suit and the interest is the
interest of the person who was the party to the suit. Thus, where
the subject-matter of the suit was the interest of ‗S‘ in the Dera
and its properties and it devolved upon ‗D‘ by virtue of his
election as Mahant subsequent to the death of ‗S‘ and, as it was
in a representative capacity that ‗S‘ was sued and as it was in the
same representative capacity that the appeal was sought to be
continued against ‗D‘, Order 22, Rule 10 will apply., Shri Rikhu
Dev, Chela Bawa Harjug Dass v. Som Dass (deceased) through
his Chela Shiam Dass, AIR 1975 SC 2159
Once a preliminary decree has been passed, there is no

necessity to make an application under this Rule to implead the
legal representatives of the deceased plaintiff and there is no time
Page 253 of 401

limit to implead such representative. An order under Section 151

allowing the legal representatives to be impleaded in place of the
deceased plaintiff is sufficient., Krishan Lal v. Nathi Lal, A.I.R.
1971 Del. 308.
Who may file application under this Rule – The words

employed in this Rule, namely ―on an application made in this
behalf‘ clearly point out that any person may file such an
application. Thus, a person who purports to be a legal
representative of the deceased plaintiff or appellant may file an
application for bringing on record the legal representatives of the
deceased plaintiff or appellant, although he may be found not to
be real legal representatives of the deceased plaintiff, and even
then the names of the real representatives of deceased plaintiff
may be brought on record if their names have been brought to
the notice of the Court. Ram Charan Lal v. State, A.I.R. 1980 Raj.
96
Effect of bona fide mistake in not substituting all heirs In a

case of death of a party to a suit or appeal, even if any heir of the
deceased is left out of the record, and the plaintiff or appellant
does not bring him on record in the bona fide belief that others
being on record the only heirs, the competence of the suit or
appeal will not be effected. It is immaterial whether no steps have
been taken within the time allowed. Central Bank of India Ltd. v.
Kala Prasad, 1968 B.L.J.R. 494
Page 254 of 401

Limitation for substitution Application for impleading of Legal

Representatives of the deceased is governed by Article 120 of
Limitation Act, 1963 and not by Article 137. Therefore, the time
of limitation is 90 days from the date of death of the deceased.,
Molu & Ors. v. Soran & Ors., AIR 1993 P&H 81:
Bar of limitation not applicable in execution of Decrees On
the death of decree holder, pending execution proceeding,
proceeding will not abate and when application for bringing L.Rs.,
there was no question of application of bar of limitation. The
provisions of Rules 3, 4, 8 do not apply to proceedings in
execution of a decree. This doctrine has been given legislative
sanction by an express provision made in Rule 12 in these words:
―nothing in Rules 3, 4 and 8 shall apply to proceedings in
execution of a decree or order‖. This however, does not imply that
legal representatives of a deceased decree should not be brought
on record nor that proceedings in execution could continue
despite the death of decree holder without any representation of
the estate on record. Legal representatives of the deceased decree
holder should no doubt come on record to continue the
proceedings but the penalty imposed on the legal representatives
of the deceased plaintiff under Rule 3 namely, that the suit shall
abate where no application is made within the time limited by law
for this purpose does not apply to proceedings in execution by
virtue of the said Rule 12 A portion the bar of limitation cannot
be invoked in respect of the an application for bringing on record
of legal representatives of a deceased decree-holder in
proceedings in execution of decree. Smt. Thakuri Bai (through
L.Rs.) v. Laxmi Chand & Ors., AIR 1990 Del. 217
Page 255 of 401

Order 22 Rule 4 - Procedure in case of death of one of several

defendants or of sole defendant.—(1) Where one of two or more
defendants dies and the right to sue does not survive against the
surviving defendant or defendants alone, or a sole defendant or
sole-surviving defendant dies and the right to sue survives the
Court, on an application made in that behalf, shall cause the
legal representative of the deceased defendant to be made a party
and shall proceed with the suit.
(2) Any person so made a party may make any defence
appropriate to his character as legal representative of the
deceased defendant.
(3) Where within the time limited by law no application is made
under sub-Rule (1), the suit shall abate as against the deceased
defendant.
(4) The Court whenever it thinks fit, may exempt the plaintiff
from the necessity of substituting the legal representatives of any
such defendant who has failed to file a written statement or who,
having filed it, has failed to appear and contest the suit at the
hearing; and judgment may, in such case, be pronounced against
the said defendant notwithstanding the death of such defendant
and shall have the same force and effect as it is has been
pronounced before death took place.
(5) Where—
(a) the plaintiff was ignorant of the death of a defendant,
and could not, for that reason, make an application for the
substitution of the legal representative of the defendant under
Page 256 of 401

this Rule within the period specified in the Limitation Act, 1963
(36 of 1963), and the suit has in consequence abated; and
(b) the plaintiff applies after the expiry of the period
specified therefore in the Limitation Act, 1963 (36 to 1963), for
setting aside the abatement, and also for the admission of that
application under Section 5 of that Act on the ground that he
had, by reason of such ignorance, sufficient cause for not making
the application within the period specified in the said Act, the
Court shall, in considering the application under the said Section
5, have due regard to the fact of such ignorance, if proved.(Order
22 Rule 4)
Scope : Order 22, Rule 4 lays down that where within the time
limited by law, no application is made to implead the legal
representatives of a deceased defendant, the suit shall abate as
against a deceased defendant. This Rule does not provide that by
the omission to implead the legal representative of a defendant,
the suit will abate as a whole. What was the interest of the
deceased defendant in the case, whether he represented the
entire interest or only a specific part are facts that would depend
on the circumstances of each case. If the interests of the co-
defendants are separate, as in case of co-owners, the suit will
abate only as regards the particular interest of the deceased
party. (Masilamani Nadar v. Kuttiamma (1960 Ker LJ 936)
In the case Sant Singh v. Gulab Singh (AIR 1928 Lah 573) it has
been held that under Order 22 Rule 4(3) read with Order 22, Rule
11 Civil Procedure Code where no application is made to implead
the legal representative of the deceased respondent, the appeal
shall abate as against the deceased respondent. That, so far as
Page 257 of 401

the statute is concerned, the appeal abates only qua the deceased
respondent, but the question whether the partial abatement
leads to an abatement of the appeal in its entirety depends upon
general principles. If the case is of such a nature that the
absence of the legal representative of the deceased respondent
prevents the Court from hearing the appeal as against the other
respondents, then the appeal abates in toto. Otherwise, the
abatement takes place only in respect of the interest of the
respondent who has died. The test often adopted in such cases is
whether in the event of the appeal being allowed as against the
remaining respondents there would or would not be two
contradictory decrees in the same suit with respect to the same
subject-matter. The Court cannot be called upon to make two
inconsistent decrees about the same property, and in order to
avoid conflicting decrees the Court has no alternative but to
dismiss the appeal as a whole. If, on the other hand, the success
of the appeal would not lead to conflicting decrees, then there is
no valid reason why the Court should not hear the appeal and
adjudicate upon the dispute between the parties. It was further
held in the said judgment that a distinction must be made
between the cases in which there is specification of shares or
interests, and those in which there is no specification of
interests. That in cases where there is a specification of share or
interest, the appeal cannot abate as a whole. That in such cases,
the appeal abates only in respect of the interest of the deceased
respondent and not as a whole. To the same effect is the ratio of
the judgment of the Supreme Court in the case of Sardar Amarjit
Singh Kalra v. Pramod Gupta ((2003) 3 SCC 272) in which it has
Page 258 of 401

been held that existence of a joint right as distinguished from

tenancy-in-common alone is not the criterion but the joint
character of the decree de hors relationship of the parties inter se
and the frame of the appeal will take colour from the nature of
the decree challenged. Laws of procedure are meant to regulate
effectively, assist and aid the object of doing substantial and real
justice. A careful reading of Order 22 Civil Procedure Code would
support the view that the said provisions were devised to ensure
continuation and culmination in an effective adjudication. It was
further observed that the mere fact that a khata was a joint
khata was not relevant for deciding the question of abatement
under Order 22, as long as each of the appellants had their own
independent, distinct and separate shares in the property. It was
held that wherever the plaintiffs are found to have distinct,
separate and independent rights of their own, joined together for
the sake of convenience in a single suit, the decree passed by the
Court is to be viewed in substance as the combination of several
decrees in favour of one or the other party and not as a joint
decree. The question as to whether the decree is joint and in-
severable or joint and severable has to be decided, for the
purposes of abatement, with reference to the fact as to whether
the decree passed in the proceedings vis-a-vis the remaining
parties would suffer the vice of inconsistent decrees or conflicting
decrees. A decree can be said to be inconsistent or contradictory
with another decree only when two decrees are incapable of
enforcement and that enforcement of one would negate the
enforcement of the other. Shahazada Bi v. Halimabi (since dead)
by her LRs., AIR 2004 SC 3942 : 2004 (7) SCC 354.
Page 259 of 401

Pleas available to Legal Representatives- Under sub-clause (ii)

of Rule 4 of Order 22, Civil Procedure Code any person so made a
party as a legal representative of the deceased, respondent was
entitled to make any defence appropriate to his character as legal
representative of the deceased-respondent. In other words, the
heirs and the legal representatives could urge all contentions
which the deceased could have urged except only those which
were personal to the deceased. Indeed this does not prevent the
legal representatives from setting up also their own independent
title, in which case there could be no objection to the Court
impleading them not merely as the legal representatives of the
deceased but also in their personal capacity avoiding thereby a
separate suit for a decision on the independent title. Jagdish
Chander Chatterjee v. Shri Kishan, 1972 (2) SCC 461 : AIR 1972
SC 2526
Karta does not represent interest of deceased coparcener The

Karta of a joint Hindu family does not represent the interest of a
male coparcener whose death has occurred after the Hindu
Succession Act came into force. The legal representatives of the
deceased coparcener must be brought on record. Bhanwarilal v.
Bhulibai, A.I.R. 1972 Raj. 203.
Where in a suit for declaration that execution sale was illegal, the
defendant died during pendency of suit, his widow and daughter
were not brought on record, Held that the entire suit abated.
Surya Kant Jha v. Lakshmi Kant Jha, A.I.R. 1980 Pat. 285
Page 260 of 401

It is well settled that no specific order of abatement of

proceedings is envisaged in one or the other provisions of Order
22, of the Civil Procedure Code and the abatement takes place
automatically upon an eventually and by passage of time and it is
not necessary to pass a formal order for that purpose. If the
parties to the proceedings die in the trial Court or in the appellate
Court and the right to sue survives and if no substitution is made
and the heirs and legal representatives are not brought on the
record within the time the case would result in the abatement of
the proceedings. If the death takes place in the trial Court the
suit abates. If the death takes place during the appellate Court
the appeal abates but it will have no impact on the judgment and
decree under appeal. The judgment under appeal becomes final.
Hari Narain Singh & ors. v. Jabit Singh & Ors., AIR 1992 Pat.
148: 1992 (2) BLJR 1110
Go to Index
Page 261 of 401

(V) Abatement of suit (Order 22 Rule 3,4&9 Civil

Procedure Code)
No abatement on death of proforma respondent
If exemption, which is provided under Order 22, Rule 4(4) is
obtained from the Court before the delivery of the judgment, in
that case, it would be open to the Court to exempt the plaintiff
from bringing on record the heirs and legal representatives of the
defendant even if, the defendant had died during the pendency of
the suit as if the judgment was pronounced by treating that the
defendant was alive notwithstanding the death of such defendant
and shall have the same force and effect as if it was pronounced
before the death had taken place. The Court is empowered to
exempt a plaintiff from the necessity of substituting the heirs and
legal representatives of any such defendant who has failed to file
a written statement or who, having filed it, had failed to appear
and contest the suit at the time of hearing of the same, but such
an exemption can only be granted before the judgment is
pronounced and in that case only, it can be taken against the
said defendant notwithstanding the death of such defendant and
such a decree shall have the same force and effect as it was
pronounced before the death had taken place. T. Gnanavel v. T.
S. Kanagaraj AIR 2009 SC 2367
The suit does not abate under Order 22, Rules 1, 3 or 4 Civil
Procedure Code, after a preliminary decree is passed. Any party
can apply to have it enforced. Siddovatam Mohan Reddy v. P.
Chinna Swamy & others, (1992) 2 ALT 737.
Page 262 of 401

It is Order 22, Rule 3(2) that provides for abatement of the suit.
However, the operation of Order 22, Rule 3(2) is postponed till the
very end of period of limitation prescribed by law for bringing the
legal representatives. Till then the suit is kept alive by reason of
Order 22, Rule 1. V. Appalanaidu v. P. Demudmma, A.I.R. 1982
A.P. 281:
Obligation of the Court to Determine proper representative
As a legal position, it cannot be disputed that normally, an
enquiry under Order 22, Rule 5, Civil Procedure Code as to
whether a person is legal representative of deceased party is of a
summary nature and findings therein cannot amount to res
judicata, however, that legal position is true only in respect of
those parties, who set up a rival claim against the legatee. But
such finding would be final and operate as res judicata as
regards that suit and cannot be re-agitated., Dashrath Rao Kate
v. Brij Mohan Srivastava, AIR 2010 SC 897
Filing an application to bring the legal representatives on record,
does not amount to bringing the legal representatives on record.
When an LR application is filed, the Court should consider it and
decide whether the person named therein as the legal
representatives, should be brought on record to represent the
estate of the deceased. Until such decision by the Court, the
persons claming to be the legal representatives have no right to
represent the estate of the deceased, nor prosecute or defend the
case. If there is a dispute as to who is the legal representative, a
decision should be rendered on such dispute. Only when the
question of legal representative is determined by the Court and
such legal representative is brought on record, it can be said that
Page 263 of 401

the estate of the deceased is represented. The determination as to

who is the legal representative under Order 22 Rule 5 will of
course be for the limited purpose of representation of the estate
of the deceased, for adjudication of that case. Such determination
for such limited purpose will not confer on the person held to be
the legal representative, any right to the property which is the
subject matter of the suit, vis-à-vis other rival claimants to the
estate of the deceased., Jaladi Suguna (Dead) through L.Rs. v.
Satya Sai Central Trust, AIR 2008 SC 2866.
Death of the plaintiff after the argument in appeal were over
and the judgment was reserved. In such a case, it was held that
the judgment may be pronounced notwithstanding the death of
the plaintiff and in that event there will be no abatement. The
judgment could be pronounced in such circumstances as if the
judgment was pronounced before the death., N.P. Thirugnanam
by L.Rs. v. Dr. R. Jagan Mohan Rao & Ors. AIR 1996 SC 116
A specific order is necessary under Order 22, Rule 9 Civil

Procedure Code for setting aside abatement Order 22, Rule 11
read with Order 22, Rule 4 makes it obligatory to seek
substitution of the heirs and legal representatives of deceased
respondent if the right to sue survives. Such substitution has to
be sought within the time prescribed by law of limitation. If no
such substitution is sought the appeal will abate. Sub-Rule (2) of
Rule 9 of Order 22 enables the party who is under an obligation
to seek substitution to apply for an order to set aside the
abatement and if it is proved that he was prevented by any
sufficient cause from continuing the suit which would include an
Page 264 of 401

appeal, the Court shall set aside the abatement. Now where an
application for setting aside an abatement is made but the Court
having not been satisfied that the party seeking setting aside of
abatement was prevented by sufficient cause from continuing the
appeal, the Court may decline to set aside the abatement. Then
the net result would be that the appeal would stand disposed of
as having abated. It may be mentioned that no specific order for
abatement of a proceeding under one or the other provision of
order 22 is envisaged: the abatement takes place on its own force
by passage of time. In fact, a specific order is necessary under
Order 22, Rule 9 Civil Procedure Code for setting aside the
abatement. When an appeal is disposed of having abated and
thereafter an application is made for setting aside abatement of
appeal, an order refusing to set aside abatement is appealable as
an order under Order 40, Rule 1 (k)Civil Procedure Code. There
being a specific provision conferring a right of appeal one can
resort to the same. Madan Naik (dead) by Legal Representatives
v. Mst. Hansubala Devi, AIR 1983 SC 676
If no application is made for impleading the legal representatives

of the deceased plaintiff or appellant or defendant or respondent
within ninety days, the consequence is that the suit or the appeal
would abate. The plaintiff or appellant may apply for setting aside
the abatement within sixty days from the date of abatement, as
provided under Article 121 of the Limitation Act. If an application
for setting aside the abatement is made within 150 days of the
date of death, there is no need to file an application under
Section 5 of the Limitation Act to condone the delay, as no delay
Page 265 of 401

as such occurs in view of Articles 120 and 121 of the Limitation

Act. Delay occurs on the expiry of 150 days from the date of
death. If applications for impleading the legal representatives and
for setting aside the abatement are filed after 150 days of the
date of death, it is necessary to explain the delay in filing the
application for setting aside the abatement. It is not the delay in
filing the application for impleading that is to be explained by the
applicant seeking to set aside the abatement. On the other hand,
it is the delay in filing the application for setting aside the
abatement that is to be explained. The words ―the plaintiff
applies after the expiry of the period specified therefor in the
Limitation Act, 1963, for setting aside the abatement and also
for the admission of that application under Sec. 5 of that
Act‖ in clause (b) of sub-Rule (5) of Rule 4 of Order XXII
of the Code of Civil Procedure would fortify this conclusion.
Sankaran (D) by L.Rs. v. Devaki Amma (D) by L.Rs., AIR 2007
(NOC) 611 (Ker.)
Prevented by sufficient cause – Even if the term ―sufficient

cause‖ has to receive liberal construction, it must squarely fall
within the concept of reasonable time and proper conduct of the
concerned party. Once a valuable right, has accrued in favour of
one party as a result of the failure of the other party to explain
the delay by showing sufficient cause and its own conduct, it will
be unreasonable to take away that right on the mere asking of
the applicant, particularly when the delay is directly a result of
negligence, default or inaction of that party. Justice must be
done to both parties equally. Once the legislature has enacted the
Page 266 of 401

provisions of Order 22, with particular reference to Rule 9 and

the provisions of the Limitation Act are applied to the
entertainment of such an application, all these provisions have to
be given their true and correct meaning and must be applied
wherever called for. To say that the Court should take a very
liberal approach and interpret these provision (Order 22, Rule 9
of the Civil Procedure Code and Section 5 of the Limitation Act) in
such a manner and so liberally, irrespective of the period of
delay, it would amount to practically rendering all these
provisions redundant and inoperative. Balwant Sing (Dead) v.
Jagdish Singh, AIR 2010 SC 3043
Commencement of limitation – An application to implead the

legal representatives of the deceased defendant, in a suit or of the
deceased respondent, in an appeal is governed by Article 120 of
the Limitation Act. The period of limitation, commences to run
from the date of death of not from the date of knowledge. The
abatement is automatic and no separate order is required to be
passed. Sub-Rule (3) or Rule 4 of Order 22, in clear terms lays
down that where within the time limited by law, no application is
made under sub-Rule (1), the suit shall abate as against the
deceased defendants (s). By virtue of Rule 11, Order 22, of the
Code, this provision is also equally applicable in case of appellant
and consequently, if within the time limited by law, no
application is made under sub-Rule (1), the appeal shall abate
against the deceased respondent. Bala Ram & Ors. v. State of
Himachal Pradesh & Ors., AIR 1994 H.P. 5
Page 267 of 401

Order 22 Rule 5 - Determination of question as to legal

representative — Where a question arises as to whether any
person is or is not the legal representative of a deceased plaintiff
or a deceased defendant, such question shall be determined by
the Court:
Provided that where such question arises before an Appellate
Court, that Court may, before determining the question, direct
any subordinate Court to try the question and to return the
records together with evidence, if any, recorded at such trial, its
findings and reasons therefor, and the Appellate Court may take
the same into consideration in determining the question.
When a dispute is raised as to who are the Legal Representatives

of the deceased party, it is the duty of Court to decide it and it
cannot postpone it. Order of the trial Court that all the persons
claiming to be the Legal Representatives can be impleaded
without prejudice to their respective contentions is illegal and
liable to be set aside. Gangupati Savitramma & Anr. v. Katuri
Ramadevi & Ors., 1991 (2) C.C.C. 623 (A.P.).
Order 22 Rule 9-Effect of abatement or dismissal—(l) Where a

suit abates or is dismissed under this Order, no fresh suit shall
be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal
representative of a deceased plaintiff or the assignee or the
receiver in the case of an insolvent plaintiff may apply for an
order to set aside the abatement or dismissal; and if it is proved
that he was prevented by any sufficient cause from continuing
Page 268 of 401

the suit, the Court shall set aside the abatement or dismissal
upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the 1 Indian Limitation Act,
1877 (15 of 1877) shall apply to applications under sub-Rule (2).
Explanation.—Nothing in this Rule shall be construed as barring,
in any later suit, a defence based on the facts which constituted
the cause of action in the suit which had abated or had been
dismissed under this Order.
Go to Index
Page 269 of 401

(VI) Withdrawal of suit or abandonment of part of

claim (Order 23 Rule 1)
(1) At any time after the institution of a suit, the plaintiff may as
against all or any of the defendants abandon his suit or abandon
a part of his claim:
Provided that where the plaintiff is a minor or other person to
whom the provisions contained in Rule 1 to 14 of Order XXXII
extend, neither the suit nor part of the claim shall be abandoned
without the leave of the Court.
(2) An application for leave under the proviso to sub-Rule (1) shall
be accompanied by an affidavit of the next friend and also, if the
minor or such other person is represented by a pleader by a
certificate of the pleader to the effect that abandonment proposed
is, in his opinion, for the benefit of the minor or such other
person.
(3) Where the Court is satisfied:
(a) that a suit must fail by reasons of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff
to institute a fresh suit for the subject matter of a suit or part of
a claim. It may, on such terms as it thinks fit, grant plaintiff
permission to withdraw from such suit or such part of the claim
with liberty to institute a fresh suit in respect of the subject
matter of such suit or such part of the claim.
(4) Where the plaintiff:
(a) abandons any suit or part of the claim under sub-Rule
(1), or
Page 270 of 401

(b) withdraws from as suit or part of a claim without the

permission referred to in sub-Rule (3) he shall be liable for such
costs as the Court may award and shall be precluded from
instituting any fresh suit in respect of such subject matter or
such part of the claim.
(5) Nothing in this Rule shall be deemed to authorize the Court to
permit one of several plaintiff to abandon a suit or part of a claim
under sub-Rule (1) or to withdraw, under sub-Rule (3), any suit
or part of a claim, without the consent of the other plaintiff.
Scope- The right to withdraw a suit or to abandon the whole or a
part of claim is not absolute. Such right cannot be exercised to
abuse the process of the Court or play fraud upon the party as
well as upon the Court. Therefore, it is necessary that if a person
wants to approach the Court again, he must seek liberty of the
Court to file a fresh petition. Even the Court cannot grant a
permission to withdraw a petition straightaway, as it has to
consider and examine as to whether any right has accrued in
favour of any other person.
Order XXIII, Rule 1 of the Code does not confer an unbridled
power upon the Court to grant permission to withdraw the
petition, with liberty to file afresh, on the same cause of action; it
can do so only on the limited grounds mentioned in the provision
of Order XXIII, Rule 1 of the Code, and they are, when the Court
is satisfied that the suit must fail by reason of some formal defect
or there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the same subject matter, and that too,
on such term as the Court thinks fit. The grounds for granting a
party permission to file a fresh suit, including a formal defect,
Page 271 of 401

i.e., in the form or procedure not affecting the merit of the case,
such as also of statutory notice, under Section 80 of the Code,
mis-joinder of the parties or cause of action, non-payment of
proper Court -fee or stamp fee, failure to disclose cause of action,
mistake in not seeking proper relief, improper or erroneous
valuation of the subject matter of the suit, absence of territorial
jurisdiction of the Code or defect in prayer clause etc. Non-
joinder of a necessary party, omission to substitute heirs etc may
also be considered in this respect, or where the suit was found to
be premature, or it had become infructuous, or where relief could
not be, and where the relief even if granted, could not be
executed, may fall within the ambit of sufficient ground
mentioned in that provision.
Order 23 Rule 1, provides that a plaintiff can withdraw a suit or

abandon a part of his claim unconditionally. It creates a right in
favour of the plaintiff to withdraw the suit, at any time, after its
institution. Once the suit is withdrawn or any part of the suit is
abandoned against all or any of the defendants unconditionally,
the plaintiff cannot bring a fresh suit on the same cause of action
unless leave of the Court is obtained as provided by Order 23
Rule 1(3)(b). In other words, a plaintiff cannot, while
unconditionally abandoning a suit or abandoning a part of his
claim, reserve to himself the right to bring a fresh suit on the
same cause of action. Hulas Rai Baij Nath v. K.P Bass & Co. AIR
1968 SC 111
Page 272 of 401

The question is if the suit has already been decreed or, for
that matter, dismissed and a decree has been passed
determining the rights of the parties to the suit, which is
under challenge in an appeal, can the decree be destroyed
by making an application for dismissing the suit as not
pressed or unconditionally withdrawing the suit at the
appellate stage?
It was held by the Hon‘ble Supreme Court that every suit, if it is
not withdrawn or abandoned, ultimately results in a decree as
defined in Section 2(2) of the Code of Civil Procedure. Once the
matter in controversy has received judicial determination, the
suit results in a decree either in favour of the plaintiff or in
favour of the defendant. What is essential is that the matter must
have been finally decided so that it becomes conclusive as
between the parties to the suit in respect of the subject-matter of
the suit with reference to which relief is sought. It is at this stage
that the rights of the parties are crystallised and unless the
decree is reversed, recalled, modified or set aside, the parties
cannot be divested of their rights under the decree. Now, the
decree can be recalled, reversed or set aside either by the Court
which had passed it as in review, or by the appellate or revisional
Court. Since withdrawal of suit at the appellate stage, if allowed,
would have the effect of destroying or nullifying the decree
affecting thereby rights of the parties which came to be vested
under the decree, it cannot be allowed as a matter of course but
has to be allowed rarely only when a strong case is made out. It
is for this reason that the proceedings either in appeal or in
revision have to be allowed to have a full trial on merits. In view
Page 273 of 401

of the above discussion, it comes out that where a decree passed

by the trial Court is challenged in appeal, it would not be open to
the plaintiff, at that stage, to withdraw the suit so as to destroy
that decree. The rights which have come to be vested in the
parties to the suit under the decree cannot be taken away by
withdrawal of the suit at that stage unless very strong reasons
are shown that the withdrawal would not affect or prejudice
anybody‘s vested rights. R. Rathinavel Chettiar v. V. Sivaraman
1999 (4) SCC 89.
GRANT OF PERMISSION FOR WITHDRAWAL IS TO BE

EXERCISED WITH CAUTION AND CIRCUMSPECTION - No
doubt, the grant of leave envisaged in sub-Rule (3) of Rule 1 is at
the discretion of the Court but such discretion is to be exercised
by the Court with caution and circumspection. The legislative
policy in the matter of exercise of discretion is clear from the
provisions of sub-Rule (3) in which two alternatives are provided;
first where the Court is satisfied that a suit must fail by reason of
some formal defect, and the other where the Court is satisfied
that there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject-matter of a suit or part of a
claim. Clause (b) of sub-Rule (3) contains the mandate to the
Court that it must be satisfied about the sufficiency of the
grounds for allowing the plaintiff to institute a fresh suit for the
same claim or part of the claim on the same cause of action. The
Court is to discharge the duty mandated under the provision of
the Code on taking into consideration all relevant aspects of the
matter including the desirability of permitting the party to start a
Page 274 of 401

fresh round of litigation on the same cause of action. This

becomes all the more important in a case where the application
under Order 23, Rule 1 is filed by the plaintiff at the stage of
appeal. Grant of leave in such a case would result in the
unsuccessful plaintiff to avoid the decree or decrees against him
and seek a fresh adjudication of the controversy on a clean slate.
It may also result in the contesting defendant losing the
advantage of adjudication of the dispute by the Court or Courts
below. Grant of permission for withdrawal of a suit with leave to
file a fresh suit may also result in annulment of a right vested in
the defendant or even a third party. The appellate/second
appellate Court should apply its mind to the case with a view to
ensure strict compliance with the conditions prescribed in Order
23, Rule 1(3) CPC for exercise of the discretionary power in
permitting the withdrawal of the suit with leave to file a fresh suit
on the same cause of action. Yet another reason in support of
this view is that withdrawal of a suit at the appellate/second
appellate stage results in wastage of public time of Courts which
is of considerable importance in the present time in view of large
accumulation of cases in lower Courts and inordinate delay in
disposal of the cases. K.S. Bhoopathy v. Kokila, AIR 2000 SC
2132
EFFECT OF NON-PAYMENT OF COST-Where a suit is

withdrawn with permission to file fresh suit on condition of
payment of cost awarded by Court, the fresh suit will not be
tenable if cost is not paid. Wasudeo Bakaram Karve v. Ram Dayal
Puna Bisne, (1972) 2 Bom. L.R. 677.
Page 275 of 401

WITHDRAWAL OF SUIT WITHOUT CONDITION-If the suit is

withdrawn unconditionally, then the permission of the Court is
not necessary. Nathu v. State, A.I.R. 1972 Guj. 35.
Where the plaintiff withdraws the former suit for recovery of
amount advanced without permission of Court, he is precluded
from instituting a fresh suit of recovery in respect of same subject
matter under Order 23, Rule 4 C.P.C. and against the same
defendant. This Rule is mandatory. Narayan Jethanand, since
deceased by his heir and Legal Representatives v. Asapuri Vijay
Saw Mill, 1995 (4) CCC 295 (Guj.): AIR 1995 Guj. 194.
WITHDRAWAL OF APPLICATION TO WITHDRAW SUIT-If any

plaintiff can withdraw a suit at any time after the institution of
the suit, he can equally well withdraw his application to withdraw
the suit under this Rule. Thomas George v. Shakariah Joseph,
1973 Ker. L.T. 131: (1972) Ker. L.J. 124.
MEANING OF FORMAL DEFECT-The formal defect referred to

in this Rule can only mean a defect of form and not a defect
affecting merits of the case. If it is a defect of form and not a
defect which affects the merits of the case, then only the case
would fall under the provisions of this sub-Rule. Kurji Jinabhai
Katecha v. Ambalal Kanjbhai Patel, AIR 1972 Guj. 63
Where the plaintiffs application to amend the plaint was rejected,
he filed application to withdraw suit, setting that failure to plead
certain matters was a defect in the plaint and that leave should
be granted to withdraw with liberty to file a fresh suit, it was held
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that such defect could not come within any of the categories of
―formal defect‖ within this Rule and permission could not be
granted., V. Narayanappa v. Narayanappa, A.I.R.1971 Mys. 334
Withdrawal of suit filed in representative capacity - The

Courts have consistently held, that a suit filed in representative
capacity also represents persons besides the plaintiff, and that
an order of withdrawal must not be obtained by such a plaintiff
without consulting the category of people that he represents. The
Court therefore, must not normally grant permission to withdraw
unilaterally, rather the plaintiff should be advised to obtain the
consent of the other persons in writing, even by way of effecting
substituted service by publication, and in the event that no
objection is raised, the Court may pass such an order. If the
Court passes such an order of withdrawal, knowing that it is
dealing with a suit in a representative capacity, without the
persons being represented by the plaintiffs being made aware of
the same, the said order would be an unjustified order. Such
order therefore, is without jurisdiction. Bhagwati Developers
Private Ltd. v. The Peerless General Finance Investment Co. Ltd.
& Ors., AIR 2013 SC 1690).
Court can accept application under Rule 3 or reject it in toto

but cannot split up prayer to grant one relief and refuse
other relief.—The plaintiff had instituted a suit against the
defendant for a permanent prohibitory injunction restraining
them from transferring the property in question. The plaintiff
alleged that he is owner of the property in question on the basis
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of inheritance. During the pendency of the suit, the plaintiff came

to know about the existence of the sale deed, which is alleged to
have been issued by his father, in his favour, and, therefore he
moved an application for the withdrawal of the suit with a liberty
to file a fresh suit bringing this fact about the execution of the
sale deed in the subsequent suit. This application was partly
allowed by the trial Court. The trial Court permitted the plaintiff
to withdraw the suit but did not grant any liberty to the
petitioner to file a fresh suit on the ground that there was no
formal defect in the suit filed by the plaintiff. It was held that the
order of the trial Court was erroneous and was liable to be set
aside. The trial Court had only considered the clause (a) of sub
clause 3 of Order 23 of the Code of Civil Procedure and has not
considered clause (b). The plaintiff had given the reasons for the
withdrawal of the suit and on that basis, sought a liberty to file a
fresh suit. The ground raised by plaintiff had not been considered
by the trial Court under sub clause (b) of Clause 3 of Order 23.
Further, the trial Court could not split the prayer in two parts.
The relief claimed by the plaintiff was a composite relief, namely,
withdrawal of the suit with a liberty to file a fresh suit. This relief
cannot be split up by the trial Court in two parts. The application
has to be allowed in toto or has to be rejected in toto. The Court
has no jurisdiction to split up the relief in two parts unless the
plaintiff gives his consent to that effect. Jai Prakash v. Rajendra
Prasad, AIR 2007 Allahabad 112.
Limitation —In any fresh suit instituted on permission granted

under last preceding Rule, the plaintiff shall be bound by law of
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limitation in the same manner as if the first suit had not been
instituted.
Go to Index
Page 279 of 401

(VII) Transposition of defendants as plaintiffs (Order

23 Rule 1A)
When transposition of defendants as plaintiffs may be
permitted (Order 23 Rule 1A)—Where a suit is withdrawn or
abandoned by a plaintiff under Rule 1, and a defendant applies
to be transposed as a plaintiff under Rule 10 of Order 1, the
Court shall, in considering such application, have due regard to
the question whether the applicant has a substantial question to
be decided as against any of the other defendants.
Scope- Where a defendant‘s interest run parallel to that of
plaintiff or is common, his interest should not be allowed to be
prejudiced by subsequent action of plaintiff in withdrawing or
abandoning his case. Such a defendant can get him transposed
as plaintiff. Law does not countenance a defendant who is not a
performa defendant or a defendant whose interest is not common
to that of plaintiff to be transposed as a plaintiff to continue suit
against erstwhile plaintiff.
―Though Courts lean against multiplicity of suits and, therefore,
the provision of transposition is made only to avoid another suit.
Courts wouldn‘t permit such transposition just to give a chance
to a litigant to avoid filing a suit or permit him to take advantage
of the suit filed by his adversary against him claiming a relief
against him by becoming a plaintiff and trying to bring out the
averments and relief‘s which are contrary to those claimed by the
original plaintiff.‖ Jethi Ben v. Maniben, A.I.R.1983 Guj 194.
Go to Index
Page 280 of 401

(VIII) Compromise of Suit (Order 23 Rule 3)

Where it is proved to the satisfaction of the Court a suit has been
adjusted wholly or in part by any lawful agreement or
compromise, Ins. in writing and signed by the parties or where
the defendant satisfies the plaintiff in respect of the whole or any
part of the subject matter of the suit, the Court shall order such
agreement, compromise or satisfaction to be recorded, and shall
pass a decree in accordance there with so far as it relates to the
parties to the suit, whether or not the subject matter of the
agreement, compromise or satisfaction is the same as the subject
matter of the suit;
Provided that where it is alleged by one party and denied by the
other that an adjustment or satisfaction has been arrived at, the
Court shall decide the question, but no adjournment shall be
granted for the purpose of deciding the question, unless the
Court, for reasons to be recorded thinks fit to grant such
adjournment.
Explanation— An agreement of compromise which is void or
voidable under the Indian Contract Act, 1872 (9 of 1872), shall
not be deemed to be lawful within the meaning of this Rule.
Bar to suit (Order 23 Rule 3)—No suit shall lie to set aside a
decree on the ground that the compromise on which the decree is
based was not lawful.
Scope- Following condition must be satisfied before the Court
passes a consent decree in the suit on the basis of compromise
between the parties.
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(I) There must be an agreement or compromise between the

parties.
(ii) It must be in writing and must be signed by the parties to the
suit.
(iii) Such agreement or compromise must be lawful.
(iv) It must be recorded by the Court.
(v) A compromise or consent decree must have been passed by
the Court.
Under this Rule, Court must be satisfied that there has been a
lawful compromise. Under this Rule, an agreement or
compromise which is void or voidable under the Indian Contract
Act shall not be deemed to be lawful. Under the amended Rule 3
the Court can pass a decree in terms of the agreement even
though it includes matters to forming the subject matter of the
suit provided that such extraneous matters relate to the parties
to the suit. Kiran v. Ram Prakash, A.I.R. 1980 Delhi 99:
A compromise decree is not a decision of the Court, nor can it be
said that a decision of the Court was implicit in it. It is the
acceptance by the Court of something to which the parties
agreed. Such a decree cannot operate as res judicata. (Pulavarthi
Venkata Subba Raoand vs Valluri Jagannadha Rao & Ors, AIR
1967 SC 591.
A consent decree (Compromise decree) does not stand on a higher
footing than a contract between the parties. The Court always
has the jurisdiction to set aside a consent decree upon any
ground which will invalidate an agreement between the parties.
In the absence of any such ground, the consent decree is binding
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on the parties. (Ganganand Singh and Ors. v. Rameshwar Singh

Bahadur and Anr. AIR 1927 Pat 271
Once parties consented to settlement arrived at between

them before mediator, further consent for getting
compromise or adjustment of suit recorded within meaning
of, Rule 3 is not necessary. — Once the parties consented to
the settlement arrived at between them before the mediator,
further consent for getting the compromise or adjustment of the
suit recorded within the meaning of Order 23, Rule 3 CPC is not
necessary. When once there is no consent to the terms of
compromise or settlement or adjustment by one of the parties to
the suit, no compromise can be recorded by invoking the
provisions of Order 23, Rule 3 CPC. Patibanda Soma Sundara
Rao v. Chilakamarthi Mohana Rao, AIR 2008 (NOC) 54 (A.P.)
Procedure where properties outside suit mentioned in

compromise-petition
In such a case the proper course for the Court is to recite the
compromise as a whole in the decree or in the form of a schedule
to the decree for the purpose of reference, but to restrict the
operative portion of the decree to the subject matter which relates
to the suit. Bhaja Govind Maitab v. Janki Devi, A.I.R. 1980 Ori
107: (1979) 47 Cut L.T. 210.
Consent order in a Guardians and Ward matter— Legal
requirements :
In a case where a minor is affected, it may be possible for the
Court in a given set of circumstances not to pass a decree in
terms of the consent terms if the Court comes to the conclusion
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that the consent terms would not be for the welfare of the minor
although the matter is not free from doubt. Manjula v. Dilip Jyoti
Prakash, A.I.R.1980 Bom. 235:
Mode of execution- A decree has to be executed as a whole, the

non-compliance with the term of it by the decree-holder
precludes him from executing that part of it against the judgment
debtor. Chen Shan Ling v. Nand Kishore Jhajharia, A.I.R. 1972
S.C. 726
If any of the parties later on assails the compromise as invalid on
account of exercise of fraud, coercion, misrepresentation etc. and
pleads that the compromise/agreement was unlawful and
involuntary, such a compromise cannot be challenged by a
separate suit in view of the clear bar created by Rule 3-A of Order
23. In such case Order 7, Rule 10 cannot be applied and Court
cannot be called upon to return plaint. Shanti Devi vs Gian
Chand, AIR 2008 (NOC) 367 (P. & H.).
When the plaintiff had cleverly drafted the plaint to give a look or
impression of being a title suit seeking declaration of right, title
and possession over the suit land, with a disguised main relief of
setting aside compromise decree, it was the duty of the Court
below to nip it in the bud at the first hearing by examining the
averments of plaint in light of prayer in a coherent manner. The
Court by applying the provisions of Order 7, Rule 11 was
required to ensure that a frivolous suit is rejected at the very
outset by rejecting the plaint as a whole., Pratap Mistry & Ors.
etc v. Sitaram Mistry, AIR 2010 Pat. 104.
Go to Index
Page 284 of 401

(IX) Power of Court to issue commissions (Order 26

Sec.75 to 78 & Rule138 to 153 of JCCR))
Subject to such conditions and limitations as may be prescribed,
the Court may issue a commission—
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and
natural decay and which is in the custody of the Court pending
the determination of the suit;
(g) to perform any ministerial act.
Rule 138 of JCCR Courts must issue commissions with
promptitude and Principal District Judge should at the time of
their periodical inspections satisfy themselves that this is done.
Before issuing a commission the Court shall-
(a) call on the party at whose instance the commission is issued
to supply an abstract of the pleadings and issues for the use of
the Commissioner;
(b) after consulting the parties, make an estimate of the probable
duration of the examination of each witness. When the estimate
is exceeded, the Court should enquirer into the cause of delay
and disallow any charges of the Commissioner which it finds to
be unreasonable.
Rule 139 of JCCR - In issuing a commission the Court shall fix
a date allowing sufficient time for its return after execution. It
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must be clearly understood that the commission is to be returned

by the date fixed.
Rule 140 of JCCR - If for any reason the Commissioner finds
that the date fixed is likely to be exceeded, he should obtain an
extension of time before proceeding with the execution of the
commission or its further execution as the case may be.
Rule 141 of JCCR - If a commission is to issue to a Pleader
Commissioner, the commission shall be transmitted together
with the fee, to the Court in which the Commissioner is
practicing as an Advocate, and, when such Court is the High
Court, to the Registrar.
Note - Fees transmitted to the Registrar shall be remitted by
money order payable to the Accountant of the Registrar's Office.
Rule 142 of JCCR - The Court or officer receiving a commission
issued to a Pleader Commissioner shall immediately deliver it to
him unless he refuses to act.
Rule 146 of JCCR - A Commissioner for examination of a
witness shall ordinarily give previous notice of the time and place
of such examination to the witnesses and to the parties - or their
advocates and it shall be their duty to attend at such time and
place. In fixing the time and place the Commissioner shall have
due regard for the convenience of the witnesses particularly in
the case of those whose attendance is ordinarily excused, such
as, pardanashin ladies, persons unable to be removed from their
houses owing to old age, sickness, or other bodily infirmity, or
persons of rank exempted by an order under Section 133, Civil
Procedure Code, from personal attendance in Court.
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Rule 147 of JCCR - The responsibility of ordering an inquiry

under Order XXVI, Rule 9 of the Code of Civil Procedure rests
entirely with the Court before which the suit is pending. Such
Court may order such inquiry when it deems a local investigation
to be necessary or proper for the purpose of elucidating the
matters in dispute, or of ascertaining the amount of any mesne
profits or damages or annual net profits. The Court is, therefore,
to consider, when it is moved to order and such inquiry, whether
the nature of the case calls for that particular mode of inquiry,
whether the application has been made at a proper stage of the
proceedings, Whether the importance of the case warrants that
expense being imposed upon the parties, and whether such
inquiry may not be attended with a delay which will
counterbalance the advantage to be derived from it.
Rule 148 of JCCR - When the commission is for a local inquiry
a proceeding in Form No. (J) 27 or, where it is more suitable. In
Form No. (J) 28 shall be drawn up giving the points which require
elucidation or ascertainment in that particular way, leaving to be
substantiated by the parties by evidence at the trial those points
which conveniently can ought to be so substantiated. A copy of
such proceeding shall be forwarded to the Commissioner.
Rule 149 of JCCR - When in any suit or proceeding a local
investigation for any of the purposes specified in Order XXVI,
Rules 9 and 13, Civil Procedure Code, or any other local
investigation under the said Code, requiring knowledge of
surveying for the purpose of effecting a delivery of possession, or
for any other purpose is deemed necessary, the Court shall before
issuing a commission apply to the Principal District Judge for his
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instructions regarding the particular person whose services are

available for that duty and shall issue a commission in
accordance with his nomination. The application shall contain a
statement of the nature of the work, the value of the suit or
subject-matter, the time which it is estimated the commission
will take to execute and the cost including proposed fee (which
should be inclusive wherever possible) and travelling allowance, if
any.
Rule 150 of JCCR - When a commission, order or writ, issued
by a Civil Court under the code of Civil Procedure,1908, is of
such a nature as to require that the person executing it should
have some knowledge of surveying, it should, so far as possible,
be issued only to a person whose name is entered in a list to
be maintained by each Principal District Judge or persons
qualified to execute such Commissions. The qualifications for
entry in this list shall be as follows :-
(i) the holding of certificate of a proficiency in surveying granted
in accordance with the Rules framed by the Government of Bihar
and promulgated with the Bihar Government notification no.
B/PSE-01/56-758-J., dated the 10th February, 1956, published
at page 673 in Part II of the Bihar Gazette, dated the 22nd
February, 1956;
(ii) the possession of an equivalent or higher qualification. This
shall include the passing of the following examinations; Bachelor
of Civil Engineering ;Intermediate Civil Engineering; the
examination for Overseers of the Public Works Department (but
not that for sub-overseers); Subordinate Engineer's Examination;
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(iii) the satisfactory execution of survey commissions for the Civil

Courts in the judgeship during a period of not less than ten years
before the date of notification of these Rules. Provided that a Civil
Court is not precluded from issuing a commissions to salaried
Amins in judgeships in which they still exist.
As between persons included in the aforesaid list, preference
should ordinarily be given to those who are advocates, except in
those special cases in which an expert knowledge of survey may
be more important than a knowledge of law.
Rule 151 of JCCR - Whenever transmission by post is necessary
for the issue of a commission whether to a Court or to an
advocate, the papers are to be sent and returned by registered
post and the cost of doing this should be realised from the
parties.
Rule 153 of JCCR - When the work of a Commissioner is
completed he shall submit, with the report, his diary showing
how he was occupied during the enquiry.
Scope - Sections 75 to 78 deal with the powers of the Court to
issue commissions and detailed provisions have been made in
Order 26 of the Code with respect thereto. The power of the court
to issue commission is discretionary and can be exercised by the
Court for doing complete justice between the parties. It can be
exercised by the either on application by a party to the suit or of
its own motion.
Go to Index
Page 289 of 401

Commissions to make local investigations (Order 26

Rule 9)-
In any suit in which the Court deems a local investigation to be
requisite or proper for the purpose of elucidating any matter in
dispute, or of ascertaining the market value of any property, or
the amount of any mesne profits or damages or annual net
profits, the Court may issue a commission to such person as it
thinks fit directing him to make such investigation and to report
thereon to the Court:
Provided that, where the State Government has made Rules as to
the persons to whom such commission shall be issued, the Court
shall be bound by such Rules.
Procedure of Commissioner(Order 26 Rule 10) - (1) The
Commissioner, after such local inspection as he deems necessary
and after reducing to writing the evidence taken by him, shall
return such evidence, together with his report in writing signed
by him, to the Court.
(2) Report and depositions to be evidence in suit — The report
of the Commissioner and the evidence taken by him (but not the
evidence without the report) shall be evidence in the suit and
shall form part of the record; but the Court or, with the
permission of the Court, any of the parties to the suit may
examine the Commissioner personally in open Court touching
any of the matters referred to him or mentioned in his report, or
as to his report, or as to the manner in which he has made the
investigation.
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(3) Commissioner may be examined in person—Where the

Court is for any reason dissatisfied with the proceedings of the
Commissioner, it may direct such further inquiry to be made as it
shall think fit.
(Order 26 Rule 10-A to 10-C)-By the Amendment Act of 1976,
Rules 10-A to 10-C have been inserted to provide for issue of
commissions for scientific investigation, sale of movable property
or performance of ministerial act. Ministerial work means not the
office work of the Court but work like accounting, calculation and
other work of a like nature which Courts are not likely to take up
without unnecessary waste of time.
The Court may, in any suit, issue a commission to such a person
as it thinks fit directing him to make local investigation and to
report thereon for the purpose of (a) elucidating or clarifying any
matter in dispute, or (b) ascertaining the market value off any
property on the amount of any mesne profits or damages or
annual net profits.
Commission to examine or adjust accounts (Order 26 Rule
11)-In any suit in which an examination or adjustment of the
accounts is necessary, the Court may issue a commission to
such person as it thinks fit directing him to make such
examination or adjustment.
Court to give Commissioner necessary instructions (Order 26
Rule 12)--(1) The Court shall furnish the Commissioner with
such part of the proceedings and such instructions as appear
necessary, and the instructions shall distinctly specify whether
the Commissioner is merely to transmit the proceedings which he
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may hold on the inquiry, or also to report his own opinion on the
point referred for his examination.
(2) Proceedings and report to be evidence—Court may direct
further inquiry—The proceedings and report (if any) of the
Commissioner shall be evidence in the suit, but where the Court
has reason to be dissatisfied with them, it may direct such
further inquiry as it shall think fit.
Expenses of commission to be paid into Court (Order 26 Rule
15)—Before issuing any commission under this Order, the Court
may order such sum (if any) as it thinks reasonable for the
expenses of the commission to be, within a time to be fixed, paid
into Court by the party at whose instance or for whose benefit the
commission is issued.
Powers of Commissioners (Order 26 Rule 16)- Any
Commissioner appointed under this Order may, unless otherwise
directed by the order of appointment—
(a) examine the parties themselves and any witness whom they or
any of them may produce, and any other person whom the
Commissioner thinks proper to call upon to give evidence in the
matter referred to him;
(b) call for and examine documents and other things relevant to
the subject of inquiry;
(c) at any reasonable time enter upon or into any land or building
mentioned in the order.
Question objected to before the commissioner (Order 26 Rule
16A) (1) Where any question put to a witness is objected to by a
party or his pleader in proceedings before a commissioner
appointed under this order, the commissioner shall take down
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the question, answer, objection, and the name of the party or as

the case may be the pleader so objecting.
Provided that the commissioner shall not take down the answer
to a question which is objected to on the ground of privilege but
may continue with the examination of the witness, leaving the
party to get the question of privilege decided by the Court, and
where, the Court decides that there is no question of privilege the
witness may be recalled by the commissioner and examined by
him or the witness may be examined by the Court with regard to
the question which was objected to on the ground of privilege.
(2) No answer taken down under sub Rule (1) shall be read as
evidence in the suit except by the order of the Court.
Attendance and examination of witnesses before
Commissioner (Order 26 Rule 17)- (1) The provisions of this
Code relating to the summoning, attendance and examination of
witnesses, and to the remuneration of, and penalties to be
imposed upon, witnesses, shall apply to persons required to give
evidence or to produce documents under this Order whether the
commission in execution of which they are so required has been
issued by a Court situate within or by a Court situate beyond the
limits of India, and for the purposes of this Rule the
Commissioner shall be deemed to be a Civil Court: Provided that
when the Commissioner is not a Judge of a Civil Court, he shall
not be competent to impose penalties; but such penalties may be
imposed on the application of such Commissioner by the Court
by which the commission was issued.
(2) A Commissioner may apply to any Court (not being a High
Court) within the limits of whose jurisdiction a witness resides for
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the issue of any process which he may find it necessary to issue

to or against such witness, and such Court may, in its discretion,
issue such process as it considers reasonable and proper.
Parties to appear before Commissioner (Order 26 Rule 18) -
(1) Where a commission is issued under this Order, the Court
shall direct that the parties to the suit shall appear before the
Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the
Commissioner may proceed in their absence.
Court to fix a time for return of commission (Order 26 Rule
18B)- The Court issuing a commission shall fix a date on or
before which the commission shall be returned to it after
execution, and the date so fixed shall not be extended except
where the Court, for reasons to be recorded, is satisfied that
there is sufficient cause for extending the date.
Scope- Object of appointment of Local Commissioner is not to
collect evidence but to obtain evidence, which from its very
nature, can only be gathered on the spot. Report is merely to
assist Court and is not binding on Court. The Court can decide
case on evidence after setting aside report of Commissioner. Gian
Chand Khatana v. Inderjit Chahdha, AIR 2003 HP 49
Belated applications for commission : The application had
been filed three weeks after the trial had reached the stage of
finality and the case was fixed for arguments. It was held that it
is necessary that all applications of this type even if they are
bona fide and genuine, have to be filed at a proper point of time
in the proceedings. This is very necessary also from the point of
view of the stage of the proceedings because, the learned trial
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Judge is perfectly right when he pointed out that if this

application were to be entertained, even assuming that was the
position, it would mean that the trial which has reached the
argument stage, would get dilated, evidence will have to be
reopened and all the procedures from that stage onwards would
again have to be recommenced. The law does not permit such ill-
timed applications which would only have the effect of disrupting
the trial and dilating the proceedings. The Courts have been
virtually struggling to ensure that civil proceedings are heard and
disposed of within a reasonable time and applications of this type
only disrupt the proceedings and dilate them. B.S. Nazir Hassan
Khan v. Aswathanarayana Rao & Ors., AIR 2004 Kant. 92.
Discretion to declare a witness hostile has not been
conferred on the Commissioner - Order 18, Rule 4(4) requires
that any objection raised during the recording of evidence before
the Commissioner shall be recorded by him and decided by the
Court at the stage of arguments. Order 18, Rule 4(8) stipulates
that the provisions of Rules 16, 16-A, 17 and 18 of Order 26, in
so far as they are applicable, shall apply to the issue, execution
and return of such commission thereunder. The discretion to
declare a witness hostile has not been conferred on the
Commissioner. Under Section 154 of the Evidence Act, it is the
Court which has to grant permission, in its discretion, to a
person who calls a witness, to put any question to that witness
which might be put in cross-examination by the adverse party.
The powers delegated to the Commissioner under Order 26,
Rules 16, 16-A, 17 and 18 do not include the discretion that is
vested in Court under Section 154 of the Evidence Act to declare
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a witness hostile. If a situation as to declaring a witness hostile

arises before a Commission recording evidence, the concerned
party shall have to obtain permission from the Court under
Section 154 of the Evidence Act and it is only after grant of such
permission that the Commissioner can allow a party to cross-
examine his own witness. Having regard to the facts of the case,
the Court may either grant such permission or even consider to
withdraw the commission so as to itself record remaining
evidence or impose heavy costs if it finds that permission was
sought to delay the progress of the suit or harass the opposite
party. Salem Advocate Bar Association, Tamil Nadu v. Union of
India, (2005) 6 SCC 344 : AIR 2005 SC 3353
Go to Index
Page 296 of 401

(X) Arrest and Attachment before Judgment –
Arrest before judgment - Where defendant may be called

upon to furnish security for appearance (Order 38 Rule 1)—
Where at any stage of a suit, other than a suit of the nature
referred to in Section 16, clauses (a) to (d), the Court is satisfied,
by affidavit or otherwise,—(a) that the defendant, with intent to
delay the plaintiff, or to avoid any process of the Court or to
obstruct or delay the execution of any decree that may be passed
against him,—
(i) has absconded or left the local limits of the jurisdiction of
the Court, or
(ii) is about to abscond or leave the local limits of the
jurisdiction of the Court, or
(iii) has disposed of or removed from the local limits of the
jurisdiction of the Court his property or any part thereof, or
(b) that the defendant is about to leave 1 [India] under
circumstances affording reasonable probability that the plaintiff
will or may thereby be obstructed or delayed in the execution of
any decree that may be passed against the defendant in the suit,
the Court may issue a warrant to arrest the defendant and bring
him before the Court to show cause why he should not furnish
security for his appearance :
Provided that the defendant shall not be arrested if he pays to the
officer entrusted with the execution of the warrant any sum
specified in the warrant as sufficient to satisfy the plaintiff's
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claim; and such sum shall be held in deposit by the Court until
the suit is disposed of or until the further order of the Court.
Procedure where defendant fails to furnish security or find
fresh security (Order 38 Rule 4)—Where the defendant fails to
comply with any order under Rule 2 or Rule 3, the Court may
commit him to the civil prison until the decision of the suit or,
where a decree is passed against the defendant, until the decree
has been satisfied:
Provided that no person shall be detained in prison under this
Rule in any case for a longer period than six months, nor for a
longer period than six weeks when the amount or value of the
subject-matter of the suit does not exceed fifty rupees :
Provided also that no person shall be detained in prison under
this Rule after he has complied with such order.
Attachment Before Judgment:

Where defendant may be called upon to furnish security for
production of property. (Order 38 Rule 5)—(1) Where, at any
stage of a suit, the Court is satisfied, by affidavit or
otherwise, that the defendant, with intent to obstruct or
delay the execution of any decree that may be passed against
him,—
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from
the local limits of the jurisdiction of the Court, the Court may
direct the defendant, within a time to be fixed by it, either to
furnish security, in such sum as may be specified in the order, to
produce and place at the disposal of the Court, when required,
Page 298 of 401

the said property or the value of the same, or such portion

thereof as may be sufficient to satisfy the decree, or to appear
and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify
the property required to be attached and the estimated value
thereof.
(3) The Court may also in the order direct the conditional
attachment of the whole or any portion of the property so
specified.
(4) If an order of attachment is made without complying with the
provisions of sub-Rule (1) of this Rule, such attachment shall be
void.
Mode of making attachment (Order 38 Rule 7)—Save as
otherwise expressly provided, the attachment shall be made in
the manner provided for the attachment of property in execution
of a decree.
Provisions applicable to attachment (Order 38 Rule 11A)—(1)
The provisions of this Code applicable to an attachment made in
execution of a decree shall, so for as may be, apply to an
attachment made before judgment which continues after the
judgment by virtue of the provisions of Rule 11.
(2) An attachment made before judgment in a suit which is
dismissed for default shall not become revived merely by reason
of the fact that the order for the dismissal of the suit for default
has been set aside and the suit has been restored.
Agricultural produce not attachable before judgment (Order
38 Rule 12)—Nothing in this Order shall be deemed to authorize
the plaintiff to apply for the attachment of any agricultural
Page 299 of 401

produce in the possession of an agriculturist, or to empower the

Court to order the attachment or production of such produce.
Scope - PRECONDITION FOR ATTACHMENT - The necessity for
orders under Order 38, Rule 5 of the Code, arises almost daily
among the litigants. The Supreme Court as well as the High
Courts have interpreted the provisions of Order 38, Rules 5 and 6
of the Code, in a series of judgments. Form perusal of all the
authorities the following guiding principles can be deduced:
(1) An order under Order 38, Rules 5 and 6 can only be issued, if
circumstances exist to the satisfaction of the Court.
(2) Whether such circumstances exist is a question of fact that
must be proved to the satisfaction of the Court.
(3) The Court would not be justified in issuing an order for
attachment before judgment, or for security, merely because it
thinks that no harm would be done thereby or that the
defendants would not be prejudiced.
(4) Affidavit in support of the contention should not be vague.
(5) Mere allegation of selling the property is not sufficient.
(6) The object of attachment must be to prevent future transfer.
(7) Alienation cannot be interfered in the absence of allegation of
fraud.
(8) There must be additional circumstances to show that transfer
was with the intention to defeat claim of the plaintiff.
(9) Insolvent or financial embarrassment of the defendant are
relevant factor.
(10) Mere closure of business is not sufficient.
(11) Removal of properties outside the jurisdiction of the Court
must be proved.
Page 300 of 401

(12) Sale of property at a gross under value is not permissible.
Order 38 CPC has two important components, in the context of

protecting the interests of the plaintiff, in a suit for recovery of
amounts. The first is covered by Rule 1 thereof, which enables
the plaintiff to seek the arrest of the defendant, and the second is
covered by Rule 5, which provides for attachment of the property
held by the defendant, before judgment. In an application filed
under Rule 1, the plaintiff has to satisfy the Court that the
defendant has absconded the local limits of the jurisdiction of the
Court; or is about to dispose of, or remove from the local limits of
jurisdiction, any property, or is likely to do so; with the object of
defeating the decree that may be passed against him. In the other
contingency, the satisfaction is only, as to disposal, or removal of
the property, from the jurisdiction of the Court. The nature of
steps to be taken by the Court substantially varies, in relation to
the applications that may be filed, under Rule 1 on the one hand
and Rule 5, on the other, of Order 38 CPC. In the former, on
being prima facie satisfied about the contents of the affidavit, or
otherwise, the Court may, straight away, issue warrant of arrest
for the production of the defendant, before the Court, so that he
may be required to furnish security, for his appearance. In case
of attachment before judgment, the Court is under obligation to
give an opportunity to the defendant, either to furnish security in
a sum, or to produce the property, at the disposal of the Court, or
to appear and show-cause as to why he should not be required to
furnish such security. Once the defendant appears in either case,
and explains, the Court is under obligation to pass a reasoned
Page 301 of 401

order, in support of its conclusion. Vemulapalli Ravichandra v

Mattampalli Srinivasa Rao, AIR 2007 A.P. 306.
The purpose of securing appearance of defendant is to secure the
claim of the plaintiff himself and that is why the proviso to Order
38, Rule 1 provides that to avoid the execution of arrest warrant,
the defendant can pay to the officer entrusted with the execution
of the warrant any sum specified in the warrant. The said proviso
does not mean that the Court itself cannot direct the deposit of
entire sum to the extent of claim of the plaintiff while issuing the
warrant under Order 38, Rule 1 itself. More so when the
application under Order 38, Rule 5 filed by the plaintiff was also
pending before the Court and the said application was also
disposed of by the Court by the same order, no water-tight
compartment can be taken between these two applications,
particularly, when the Court was faced with the situation that
during the process of service of summons, the defendant had
already alienated the suit property. This might have naturally
raised a suspicion in the mind of the Court that unless the claim
of the plaintiff is sufficiently secured, the decree may remain
unsatisfied. Thus, in order to secure the claim of the plaintiff, if
the Court has directed deposit of security to the full extent of
claim of the plaintiff, no valid exception can be taken to the
same. Shyam Sunder Soni vs. Mithu Lal, AIR 2010 Raj. 77.
DISTINCTION BETWEEN ATTACHMENTS BEFORE
JUDGMENT UNDER ORDER 38 RULE 5 AND THOSE IN
EXECUTION-
There is a distinction between attachments before judgment
under Order 38, Rule 5 and those in execution. Attachments
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before judgment are issued with the objective of preserving the

property belonging to the defendant concerned so that in the
event of a positive decree being passed in favour of the plaintiff,
he will be able to proceed against that property for securing the
fruits of the decree. While issuing such attachments, the Court
only ensures that the defendant does not dispose of the property
pending suit. On the contrary, attachment in execution is a step
in execution and such attachments are often readily granted and
such attachments are not liable to be lifted on furnishing
security. M. K. Govindankutty Menon v. Reena, AIR 2007 Kerala
254
Go to Index
Page 303 of 401

(XI) Temporary Injunctions (Order 39 Rules 2&3)

Cases in which temporary injunction may be granted (Order
39 Rule 1)—Where in any suit it is proved by affidavit or
otherwise—(a) that any property in dispute in a suit is in danger
of being wasted, damaged or alienated by any party to the suit, or
wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose
of his property with a view to defrauding his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or
otherwise cause injury to the plaintiff in relation to any property
in dispute in the suit, the Court may by order grant a temporary
injunction to restrain such act, or make such other order for the
purpose of staying and preventing the wasting, damaging,
alienation, sale, removal or disposition of the property or
dispossession of the plaintiff, or otherwise causing injury to the
plaintiff in relation to any property in dispute in the suit as the
Court thinks fit, until the disposal of the suit or until further
orders.
Injunction to restrain repetition or continuance of
breach(Order 39 Rule 2)—(1) In any suit for restraining the
defendant from committing a breach of contract or other injury of
any kind, whether compensation is claimed in the suit or not, the
plaintiff may, at any time after the commencement of the suit,
and either before or after judgment, apply to the Court for a
temporary injunction to restrain the defendant from committing
the breach of contract or injury complained of, or any breach of
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contract or injury of a like kind arising out of the same contract

or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms
as to the duration of the injunction, keeping an account, giving
security, or otherwise, as the Court thinks fit.
Scope- The prayer clause for injunction is governed by proof of
facts by affidavit or otherwise. It is not obligatory on the part of
the party, at this stage, to prove the documents in accordance
with the rules of the Indian Evidence Act. The party to the suit
may file various documents, for consideration of prayer of
temporary injunction under Order 39, Rule 1 and 2 of the Code.
The Court, at the first instance, is required to consider such
prayer in view of the provision laid down under Order 39, Rules 1
and 2 of the Code. If fact alleged by the plaintiff is supported by
an affidavit or otherwise, meaning thereby some documents, the
Court has to record an opinion in respect of the existence of
prima facie case, balance of convenience and irreparable loss to
the party concerned. It is not the stage at which Court can
exercise power of impounding the document.
The main considerations which ought to weigh with the
Court hearing the application or petition for grant of
injunction are as under:
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff‘s interest for violation of his rights though
however, having regard to the injury that may, be suffered by the
defendants by reason therefor;
Page 305 of 401

(iii) The Court while dealing with the matter ought not to ignore
the factum of strength of one party‘s case being stronger than the
others;
(iv) No fixed Rules or notions ought to be had in the matter of
grant of injunction but on facts and circumstances of each case,
the relief being kept flexible.
(v) The issue is to be looked from the point of view as to whether
on refusal of the injunction the plaintiff would suffer irreparable
loss and injury keeping in view the strength of the party‘s case;
(vi) Balance of convenience ought to be considered as an
important requirement even if there is a serious question or
prima facie case in support of the grant;
(vii) It is also to be seen whether the grant or refusal of
injunction will adversely affect the interest of general public
which can or cannot be compensated otherwise.,
While considering an application for grant of injunction, the
Court will not only take into consideration the basic elements in
relation thereto, viz., existence of a prima facie case, balance of
convenience and irreparable injury, it must also take into
consideration the conduct of the parties. Grant of injunction is
an equitable relief. A person, who had kept quiet for a long time
and allowed another to deal with the properties exclusively,
ordinarily would not be entitled to an order of injunction. The
Court will not interfere only because the property is a very
valuable one. However, grant or refusal of injunction has serious
consequence depending upon the nature thereof. The Courts
dealing with such matters must make all endeavours to protect
the interest of the parties. For the said purpose, application of
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mind on the part of the Courts is imperative. Contentions raised

by the parties must be determined objectively. Mandali Ranganna
v. T. Ramachandra, AIR 2008 SC 2291.
In order to obtain an order of injunction, the party who seeks for
grant of such injunction has to prove that he has made out a
prima facie case to go for trial, the balance of convenience is also
in his favour and he will suffer irreparable loss and injury if
injunction is not granted. But it is equally well settled that when
a party fails to prove prima facie case to go for trial, question of
considering the balance of convenience or irreparable loss and
injury to the party concerned would not be material at all, that is
to say, if that party fails to prove prima facie case to go for trial, it
is not open to the Court to grant injunction in his favour even if
he has made out a case of balance of convenience being in his
favour and would suffer irreparable loss and injury if no
injunction order is granted., Kashi Math Samsthan & Anr v.
Srimad Sudhindra Thirtha Swamy, AIR 2010 SC 296:
Go to Index
Page 307 of 401

(XII) Ex-parte injunctions (Order 39 Rule 3)

Before granting injunction, Court to direct notice to opposite
party (Order 39 Rule 3)—The Court shall in all cases, except
where it appears that the object of granting the injunction would
be defeated by the delay, before granting an injunction, direct
notice of the application for the same to be given to the opposite
party:
Provided that, where it is proposed to grant an injunction without
giving notice of the application to the opposite party, the Court
shall record the reasons for its opinion that the object of granting
the injunction would be defeated by delay, and require the
applicant—
(a) to deliver to the opposite party, or to send to him by registered
post, immediately after the order granting the injunction has
been made, a copy of the application for injunction together
with—
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant, relies, and
(b) to file, on the day on which such injunction is granted or on
the day immediately following that day, an affidavit stating that
the copies aforesaid have been so delivered or sent
Rule 160 Of JCCR- The power under Order XXXIX, Rule 3 of the
Code of Civil Procedure, to issue an ex-parte injunction should be
exercised with the greatest care. The issue of an injunction on
the application of one party and without previously giving to the
person affected by it an opportunity of contesting the propriety of
Page 308 of 401

its issuing, is a deviation from the ordinary course of justice,

which nothing but the existence of imminent danger to property
if it be not granted, can justify. The Court should, if possible,
always require notice, however short, to be given to the opposite
party.
Rule 161 Of JCCR- An application for an ex-parte injunction
should not ordinarily be granted unless it is made promptly.
Rule 162 Of JCCR- Every application for an injunction must be
supported by affidavit. All material facts must be fully and fairly
stated to the Court and there must be no concealment or
misrepresentation of any material fact. If any time it appears to
the Court that an ex-parte injunction was obtained by such
misstatement or suppression of material facts as to lead the
Court to grant the injunction, the injunction shall be dissolved
unless for the reasons to be recorded Court considers that it is
not necessary so to do in the interest of justice. The plaintiff
cannot be heard to say that he was not aware of the importance
of the facts so mis-stated or concealed or that he had forgotten
them.
Rule 163 Of JCCR- An affidavit in support of an ex-parte
injunction should always state the precise time at which the
plaintiff or the person acting for him became aware of the
threatened injury. It must also show either that notice to the
defendant would be mischievous or that the matter is so urgent
that the injury threatened would, if notice were served on the
defendant, be experienced before the injunction could be
obtained. The case of irremedial mischief impending must be
made out. Mere allegation of irrepairable injury will not be
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sufficient. The facts on which the allegations are founded must

be set forth clearly and specifically in the affidavit.
Rule 164 Of JCCR- The notice to be given should be for the
shortest possible time. The Presiding Judge must take particular
care to arrange for prompt service of a copy of the plaint, a copy
of the application for injunction together with copy of affidavit
filed in support of the application and copies of documents on
which the applicant relies upon the opposite party and to bring
the matter to hearing as early as possible.
Rule 165 Of JCCR- If the opposite party evades service of notice
or makes unreasonable delay in showing cause, the Court may
find it necessary to make an appropriate order of injunction. On
the other hand, an interim injunction should be dissolved if the
plaintiff makes willful default in depositing the process fee,
causing the service of notice on the opposite party or otherwise
prosecuting the matter with diligence.
Rule 166 Of JCCR- When an ex-parte injunction has been
granted the Court shall make an endeavor to finally dispose of
the application within thirty days from the date, on which the ex-
parte injunction was granted, and where it is unable so to do it
shall record its reasons for such inability.
Rule 167 Of JCCR- When an interlocutory injunction or an
interim restrain order applied for, the Court may require the
plaintiff, as a condition of interference in his favour to enter into
an undertaking to abide by any order of the Court may make as
to damages, or in some cases it may require the defendant to
enter into terms as a condition of withholding an interlocutory
injunction.
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Rule 168 Of JCCR- When an injunction is granted the greatest

care should be taken to state exactly and very clearly what it
permits and what it prohibits. When a series of acts of different
kinds are sought to be restrained, the order granting an ex-parte
injunction should embrace only the acts regarding which such an
order is really needed.
Rule 169 Of JCCR- Dissolution of an ex-parte injunction on the
ground of mis-statement or concealment of material facts will not
operate as a bar to a fresh application for another injunction on
the merits.
Scope- As a principle, ex parte injunction could be granted only
under exceptional circumstances. The factors which should
weigh with the Court in the grant of ex parte injunction are:
(a) Whether irreparable or serious mischief will ensue to the
plaintiff.
(b) Whether the refusal of ex parte injunction would involve
greater injustice than the grant of it would involve.
(c) The Court will also consider the time at which the
plaintiff first had notice of the act complained so that the making
of improper order against a party in his absence is prevented.
(d) The Court will consider whether the plaintiff had
acquiesced for some time and in such circumstances it will not
grant ex parte injunction.
(e) The Court would expect a party applying for ex parte
injunction to show utmost good faith in making the application.
(f) Even if granted, the ex parte injunction would be for a
limited period of time.
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(g) General principles like prima facie case, balance of

convenience and irreparable lose would also be considered by the
Court. Union of India v. Era Educational Trust, AIR 2000 SC
1573:
Order 39, Rule 3 of Code of Civil Procedure provides that where
it is proposed to grant an injunction without giving notice of the
application to the opposite party, the Court shall record the
reasons for its opinion that the object of granting the injunction
would be defeated by delay. M/s Ashok Prakashan v. Sunil
Kumar, AIR 2006 All. 284:
Where an injunction has been granted without giving notice to

the opposite party, the Court shall make an endeavour to finally
dispose of the application within thirty days from the date on
which the injunction was granted; and where it is unable so to
do, it shall record its reasons for such inability.
Go to Index
Page 312 of 401

(XIII) Disobedience or breach of injunction (Order 39

Rule 2A)
(1) In the case of disobedience of any injunction granted or other
order made under Rule 1 or Rule 2 or breach of any of the terms
on which the injunction was granted or the order made, the
Court granting the injunction or making the order, or any Court
to which the suit or proceeding is transferred, may order the
property of the person guilty of such disobedience or breach to be
attached, and may also order such person to be detained in the
civil prison for a term not exceeding three months, unless in the
meantime the Court directs his release.
(2) No attachment made under this Rule shall remain in force for
more than one year, at the end of which time, if the disobedience
or breach continues, the property attached may be sold and out
of the proceeds, the Court may award such compensation as it
thinks fit to the injured party and shall pay the balance, if any, to
the party entitled thereto.
Scope- Rule 431(xiii) of JCCR provides that Proceedings
under Order XXXIX Rule 2(a) be registered as a Miscellaneous
Judicial cases.
Application for disobedience will not lapse on disposal of the
main case. Kishore Chandra Jagadev Ray v. Puri Municipality &
Anr., AIR 1988 Ori. 284:
In case of disobedience of injunction order, the Courts are
competent enough to issue appropriate direction to District
Administration/Police authorities to ensure compliance of its
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order. Sree Ram v. State of Uttar Pradesh & Ors., AIR 2011 All.
72.
An application would be maintainable only in case of violation of
an order of injunction passed under Rules 1 or 2. The power
under the provision is punitive in nature, akin to the power to
punish for civil contempt under the Contempt of Courts Act,
1971. The person complaining of disobedience or breach has,
therefore, to clearly make out beyond any doubt that there was
an injunction or order directing the person against whom the
application is made, to do or desist from doing some specific
thing or act and that there was disobedience or breach of such
order. The Court cannot construe the order in regard to which
disobedience/breach is alleged, as creating an obligation to do
something which is not mentioned in the ‗order‘, on surmises
suspicions and inferences. The power under Rule 2A should be
exercised with great caution and responsibility. Food Corporation
of India v. Sukh Deo Prasad, 2009(2) CCC 197 (SC).
Provisions of Order 39, Rule 2A of the Code are quasi criminal in
nature and since a person violating the injunction order passed
by the Civil Court or otherwise disregarding the same is liable to
be detained in civil prison, therefore the aforesaid violation or
disregarding of injunction order has to be proved beyond all
reasonable doubts by the person complaining of such violation.
The standard of proof required in such a case would no doubt, be
as is required in a criminal case since the said act of the violator
itself entails his detention in civil imprisonment. Lakhbir Singh v.
Harpinder Singh, AIR 2004 P&H 126
Go to Index
Page 314 of 401

(XIV) Appointment of Receivers(Order 40 Rule 1)—

(1) Where it appears to the Court to be just and convenient, the
Court may by order—
(a) appoint a receiver of any property, whether before or after
decree;
(b) remove any person from the possession or custody of the
property;
(c) commit the same to the possession, custody or management of
the receiver; and
(d) confer upon the receiver all such powers, as to bringing and
defending suits and for the realization, management, protection,
preservation and improvement of the property, the collection of
the rents and profits thereof, the application and disposal of such
rents and profits, and the execution of documents as the owner
himself has, or such of those powers as the Court thinks fit.
(2) Nothing in this Rule shall authorize the Court to remove from
the possession or custody of property any person whom any
party to the suit has not a present right so to remove.
Scope-Order 40 Rule 1 of the Code of Civil Procedure expressly

provides for the appointment of a receiver over a property
whether before or after the decree and the Court may by an order
confer on the receiver all powers of realisation, management,
protection, preservation and improvement of the property. Order
40 Rule 1(d) specifically provides for realisation and the words ―or
such of those powers as the Court thinks fit‖ appearing in Order
40 Rule 1(d) ought to be interpreted in a manner so as to give full
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effect to the legislative intent in the matter of conferment of

powers by the Court to, preserve and maintain the property
through the appointment of a receiver. Needless to record here
that there is existing a power which is totally unfettered in terms
of the provisions of the statute. Law Courts, however, in the
matter of appointment of a receiver through a long catena of
cases, imposed a self-imposed restriction to the use of discretion
in a manner which is in consonance with the concept of justice
and to meet the need of the situation - ―unfettered‖ does not and
cannot mean unbridled or unrestrictive powers and though
exercise of discretion is of the widest possible amplitude, but the
same has to be exercised in a manner with care, caution and
restraint so as to subserve the ends of justice. The law Courts are
entrusted with this power under Order 40 Rule 1 so as to bring
about a feeling of securedness and to do complete justice
between the parties. The language of Order 40 thus being of the
widest possible import, any restriction as regards the power of
the Court to direct a receiver to effect a sale of immovable
property prior to the decree does not and cannot arise. Order 40
Rule 1 and various sub-Rules there under unmistakably depict
that the Court has unfettered powers in the event the Court feels
that the sale of property would be just and convenient having due
regard to the situation of the matter. The pronouncement of the
Full Bench as regards creation of an embargo in regard thereto
seems to be rather too wide. The Court must consider whether
special interference with the possession of the defendant is
required or not and in the event the Court comes to such a
conclusion that there is likelihood of the immovable property in
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question being dissipated or some such occurrences as is

detailed more fully hereinafter or party initiating the action
suffering irreparable loss, unless the Court gives appropriate
protection, there should not be any hesitation in directing the
sale of immovable property. Industrial Credit and Investment
Corporation of India Ltd. v. Karnataka Ball Bearings Corpn. Ltd.,
AIR 1999 SC 3438:
Under Order 40, Rule 1, a receiver is an officer or representative
of the Court and he functions under its directions. The Court
may, for the purpose of enabling the receiver to take possession
and administer the property, by order, remove any person from
the possession or custody of the property. Sub-r. (2) of Rule 1 of
the Order limits that power in the case of a person who is not a
party to the suit, if the plaintiff has not a present right to remove
him. But when a person is a party to the suit, the Court can
direct the receiver to remove him from the possession of the
property even if the plaintiff has not a present right to remove
him. Hiralal Patni v. Loonkaram Sethiya, AIR 1962 SC 21
Remuneration (Order 40 R 2)—The Court may by general or

special order fix the amount to be paid as remuneration for the
services of the receiver.
Duties (Order 40 R 3)—Every receiver so appointed shall—

(a) furnish such security (if any) as the Court thinks fit, duly to
account for what he shall receive in respect of the property ;
(b) submit his accounts at such periods and in such form as the
Court directs;
Page 317 of 401

(c) pay the amount due from him as the Court directs; and
(d) be responsible for any loss occasioned to the property by his
willful default or gross negligence.
Enforcement of receiver’s duties (Order 40 R 4)—Where a
receiver—
(a) fails to submit his accounts at such periods and in such form
as the Court directs, or
(b) fails to pay the amount due from him as the Court directs, or
(c) occasions loss to the property by his willful default or gross
negligence, the Court may direct his property to be attached and
may sell such property, and may apply the proceeds to make
good any amount found to be due from him or any loss
occasioned by him, and shall pay the balance (if any) to the
receiver.
When Collector may be appointed receiver (Order 40 R 5)——

Where the property is land paying revenue to the Government, or
land of which the revenue has been assigned or redeemed, and
the Court considers that the interests of those concerned will be
promoted by the management of the Collector, the Court may,
with the consent of the Collector, appoint him to be receiver of
such property.
Go to Index
Page 318 of 401

Chapter III
EXECUTION OF DECREE AND ORDERS
The expression ―execution‖ simply means the process for
enforcing or giving effect to the judgment of the Court. The
principles governing execution of decree and orders are dealt with
in Sections 36 to 74 and Order 21 of the Civil Procedure Code
and Rule113 to 137 of JCCR.
The classification of Order 21 is as follows-
(I) Applications for execution
(II) Stay of executions.
(III)Mode of executions.
- Decree for the payment of money
- Decree related to Specific movable property
- Decree for specific performance for restitution of
conjugal rights or for an injunction executed.
- Decree for execution of document, or endorsement of
negotiable instrument
- Decree for execution of Immovable Property
(IV)Adjudication of the claims and objections between the
parties to the suit (Sec.47 of C.P.C.)
(V)Resistance to delivery of possession (Order 21 Rules 97 to
106)
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(I) Application for execution

Application for execution can be made by
 The decree holder himself.
 His legal representative if the decree holder is dead.
 Any person claiming under the decree holder.
 Transferee of Decree holder who has given notice to
transferor and judgment debtor.
Application for Execution of decree can be made only against
the judgment debtor if he is alive or against legal representatives
of judgment debtor.
A decree may be executed either by the Court which passed it, or
by the Court to which it is sent for execution.
The decree of a Court against which no appeal has been made
shall be executed and Where a decree is reversed, modified on
appeal, the only decree capable of the execution is the appellate
decree.
After the decree holder files an application for execution of
decree, the executing Court can implement execution Subject
to such conditions and limitations as may be prescribed-
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of
any property;
(c) by arrest and detention in prison for such period not
exceeding the period specified in Section 58, where arrest and
detention is permissible under that Section;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may
require
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Order 21 Rule 10 of C.P.C. Provides that —Where the holder of

a decree desires to execute it, he shall apply to the Court which
passed the decree or to the officer (if any) appointed in this
behalf, or if the decree has been sent under the provisions herein
before contained to another Court then to such Court or to the
proper officer thereof.
Written application( Order 21 Rule 11)—Save as otherwise
provided by sub-Rule (1), every application for the execution of a
decree shall be in writing, signed and verified by the applicant or
by some other person proved to the satisfaction of the Court to be
acquainted with the facts of the case, and shall contain in a
tabular form the following particulars, namely :—
(a) the number of the suit;
(b) the names of the parties;
(c) the date of the decree;
(d) whether any appeal has been preferred from the decree;
(e) whether any, and (if any) what, payment or other adjustment
of the matter in controversy has
been made between the parties subsequently to the decree;
(f) whether any, and (if any) what, previous applications have
been made for the execution of the decree, the dates of such
applications and their results;
(g) the amount with, interest (if any) due upon the decree, or
other relief granted thereby, together with particulars of any
cross-decree, whether passed before or after the date of the
decree sought to be executed;
(h) the amount of the costs (if any) awarded;
Page 321 of 401

(i) the name of the person against whom execution of the decree
is sought; and
(j) the mode in which the assistance of the Court is required
whether,—
(i) by the delivery of any property specifically decreed;
(ii) by the attachment, or by the attachment and sale, or by
the sale without attachment, of any property;
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief granted may require.
(3) The Court to which an application is made under sub-Rule(2)
may require the applicant to produce a certified copy of the
decree.
Scope- Jurisdiction - Under Order 21 Rule 10 of CPC, an
application for execution should be made to the Court ―which
passed the decree‖. Therefore, the value of the property sold at
the execution is more than Rs. 25,000 does not take away the
jurisdiction of the trial Court. The Court held that the value of
the property sold in execution is not relevant to determine the
jurisdiction of the execution Court. Desh Bandhu Gupta v. N. L.
Anand and Rajinder Singh, 1994 (1) SCC 131. In Banwar Lal v.
Prem Lata, (1990) 1 SCC 353
Decree passed by the Civil Court relating to the building which

was exempted from the provisions of Central Provincial Bear
Letting of House and rent Control Order, 1949 by notification.
Subsequently the exemption notification set aside by the Court.
Held, the decree already passed will not be affected and would
Page 322 of 401

remain executable. Vide notification, certain area was exempted

from operation of the Rent Act and therefore, eviction decree
against the tenant was passed by the Civil Court. However, later
on the notification, exempting certain categories of building was
struck down being violative of Article 14. When the decree was
sought to be executed, the same was objected by the tenant. The
objections of the tenant, held not tenable. The jurisdiction of the
Court will have to be decided on the date of decree and at that
time the exemption notification was enforced and therefore, the
said decree remained unaffected by the notification having been
struck down, Rangao Rao v. Kamal Kant, 1995 Supp.(l) SCC 271:
RES JUDICATA IN EXECUTION PROCEEDINGS- Essential

conditions are that the previous order must be between the two
parties and the matter should be heard and decided by the
Court. Execution application of the decree for possession filed
against sub-tenant, was dismissed on the ground that he was not
party to the suit in which decree was passed. Subsequent
application for execution of the decree against the tenant, will not
be barred. Ameena Amma v. Sundaram Pillai, (1994) 1 SCC 743.
Defective execution application- Decree-holder to be given an

opportunity to remove the defect. Order of dismissal only if defect
not removed. M/s. T.A. Darbar and Company and Ors. v. Union
Bank of India, AIR 1994 Bom. 217.
COURT FEE FOR RESTITUTION APPLICATION- Application for

restitution under Section 144, C.P.C. is an application for
Page 323 of 401

execution of the decree. The first Appellate Court has jurisdiction

to hear the appeal arising from the order passed under Section
144, C.P.C. As the application for restitution under Section 144,
C.P.C. is an application for execution of the decree, no ad velorem
Court-fee is required on the value of the suit land or mesne
profits except the required Court-fee for the purpose of execution
of decree or order. Ramesh Ch. Deb v. Barindra Kr.
Chakraborthy, AIR 1997 Gau. 24
Limitation - Application filed about 12 years after passing of

decree against the debtor under Presidency Towns Insolvency
Act. The decree signed by the judge 10 years after passing of the
decree. Nothing was on the record that application made within
prescribed limitation. Therefore, the application was not
maintainable, In Re: National Small Industries Ltd., AIR 2000
Cal. 167.
The execution petition filed in the executing Court to execute the
decree passed by the High Court, was pending. The Supreme
Court had stayed the said execution proceedings pending
disposal of the Civil Appeal. After the disposal of the appeal, there
was no impediment or bar to continue the execution proceedings
on the application moved by the appellants to proceed with the
execution. Krishna Gopal Chawla & Ors. v. State of U.P. & Anr.,
2001 (7) Supreme 511.
Page 324 of 401

Application for execution by Joint decree-holders (Order 21

Rule 15)
(1) Where a decree has been passed jointly in favour of more
persons than one, any one or more of such persons may, unless
the decree imposes any condition to the contrary, apply for the
execution of the whole decree for the benefit of them all, or,
where any of them has died, for the benefit of the survivors and
the legal representatives of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree
to be executed on an application made under this Rule, it shall
make such order as it deems necessary for protecting the
interests of the persons who have not joined in the application.
Scope- When a decree is passed in favour of a joint family, the
same has to be treated as a decree in favour of all the members of
the joint family in which event it becomes a joint decree. Where a
joint decree for actual possession of immovable property is
passed and one of the coparceners assigns or transfers his
interest in the subject-matter of the decree in favour of the
judgment-debtor, the decree gets extinguished to the extent of
the interest so assigned and execution could lie only to the extent
of remaining part of the decree. In case where the interest of the
coparceners is undefined, indeterminate and cannot be
specifically stated to be in respect of any one portion of the
property, a decree cannot be given effect to before ascertaining
the rights of the parties by an appropriate decree in a partition
suit. It is no doubt true that the purchaser of the undivided
interest of a coparcener in an immovable property cannot claim
to be in joint possession of that property with all the other
Page 325 of 401

coparceners. However, in case where he is already in possession

of the property cannot claim to be in joint possession of the
property, unless the rights are appropriately ascertained, he
cannot be deprived of the possession thereof for a joint decree-
holder can seek for execution of a decree in the whole and not in
part of the property. A joint decree can be executed as a whole
since it is not divisible and it can be executed in part only where
the shares of the decree-holders are defined or those shares can
be predicted or the shares of the decree-holders and dispute
between joint decree-holders is foreign to the provisions of
Section 47 CPC. Order 21, Rule 15 enables a joint decree-holder
to execute a decree in its entirety but if whole of the decree
cannot be executed, this provision cannot be of any avail. In that
event also, the decree-holder will have to work out his rights in
an appropriate suit for partition and obtain necessary relief
thereto. Jagdish Dutt v. Dharam Pal, AIR 1999 SC 1694.
When decree is passed in favour of three brothers jointly it can be

executed in favour of any of the brother for the benefit of all of
them. It is true that under the Hindu Succession Act interest of
the heirs are specific but land remained joint. Thus, all the three
brothers who were sons of original plaintiff have equal interest in
the land which have remained joint. Land is thus, joint property
of the three brothers even though it may not be joint family
property. Once a decree is in favour of the three brothers jointly
in respect of a piece of land where each one has equal interest,
there is no scope for separate execution by each brother in
respect of recovery of possession of land. Accordingly, any of the
brothers in whose favour decree is executed can execute the
Page 326 of 401
decree for benefit of all under Order 21, Rule 15, C.P.C. Sanyasi
Padhy & Ors. v. Divakara Rao, AIR 1993 Ori. 46.
Where decree had been passed in favour of more than one
plaintiffs and application for execution filed by one of the decree-
holder, the application was held to be maintainable. The
contention that one of the decree-holders was not competent to
file the execution application was rejected. Sri Kant. v. Banasraj
Singh, AIR 1986 All 5: 1985 All CJ 329.
Right of survivor of decree-holder to execute decree-Where
two decree-holders joined in execution application, one of them
died, the surviving decree holder can execute the decree on his
own behalf and on behalf of legal representatives of the deceased
decree-holder. Section 214 of the Succession Act is not attracted
in such a case. M.L. Sreedharan v. Pattieri Kumaran, A.I.R. 1981
Ker. 51
Non-applicability of the Rule - Where the firm has been
dissolved, the authority of partner to give a valid discharge on
behalf of the firm clashes with the dissolutions of the firm and he
can, therefore no longer maintain the execution application in his
name alone. All the partners of the dissolved firm ought to have
been joined in making the execution application so as to give the
judgment-debtor an effective and complete discharge as provided
in Section 47 of the partnership act. Kalloo v. Board of Revenue,
A.I.R. 1983 All. 272.
Application for execution by transferee of decree(Order 21

Rule 16)—Where a decree or, if a decree has been passed jointly
in favour of two or more persons, the interest of any decree-
Page 327 of 401

holder in the decree is transferred by assignment in writing or by

operation of law, the transferee may apply for execution of the
decree to the Court which passed it; and the decree may be
executed in the same manner and subject to the same
conditions as if the application were made by such decree-holder.
Provided that, where the decree, or such interest as aforesaid,
has been transferred by assignment, notice of such application
shall be given to the transferor and the judgment-debtor, and the
decree shall not be executed until the Court has heard their
objections (if any) to its execution :
Provided also that, where a decree for the payment of money
against two or more persons has been transferred to one of them,
it shall not be executed against the others.
Explanation. —Nothing in this Rule shall affect the provisions of
Section 146 and a transferee of rights in the property, which is
the subject-matter of the suit, may apply for execution of the
decree without a separate assignment of the decree as required
by this Rule.
Scope- A suit for specific performance was decreed by 1st
appellate Court. During pendency of appeal, plaintiff-appellant
had died and legal representatives as also assignee-appellant
were brought on record. High Court set aside the decree in
second appeal. Legal representatives of plaintiff did not take any
step to challenge judgment of High Court. However, the
appellant-assignee took appeal to Supreme Court. As regards
locus standi of appellant to file appeal, the Supreme Court found
that no such objection had been raised before the High Court
despite liberty, hence, it could not be raised before the Supreme
Page 328 of 401

Court. The Supreme Court decreed the suit. It was not open to
Executing Court to consider question whether there was a valid
assignment in favour of the appellant once appeal filed by
appellant had been allowed by Supreme Court. Saraswati Devi
Gupta v. Sudha Rani 2006 (1) SCC 725.
Transferee of the right in the property can file application for

execution of the decree. The explanation to Rule 16 permits the
transferee to apply for execution of the decree without separate
assignment. When once a person steps into the shoes of the
decree-holder and becomes the holder of the decree, he is entitled
to take all the incidental applications including the one under
Order 21, Rule 97, C.P.C., Gnanasundraram & Anr. v. Murugesa
Naicker, AIR 1989 Mad. 343.
Procedure on receiving application for execution of decree

(Order 21 Rule 17)—(1) On receiving an application for the
execution of a decree as provided by Rule 11, sub-Rule (2), the
Court shall ascertain whether such of the requirements of Rules
11 to 14 as may be applicable to the case have been complied
with; and, if they have not been complied with, the Court shall
allow the defect to be remedied then and there or within a time to
be fixed by it.
(1-A) If the defect is not so remedied, the Court shall, reject the
application
Provided that where, in the opinion of the Court, there is some
inaccuracy as to the amount referred to in clauses (g) and (h) of
sub-Rule (2) of Rule 11, the Court shall, instead of rejecting the
application, decide provisionally (without prejudice to the right of
Page 329 of 401

the parties to have the amount finally decided in the course of

the proceedings) the amount and make an order for the execution
of the decree for the amount so provisionally decided.
(2) Where an application is amended under the provisions of sub-
Rule (1), it shall be deemed to have been an application in
accordance with law and presented on the date when it was first
presented.
(3) Every amendment made under this Rule shall be signed or
initialed by the Judge.
(4) When the application is admitted, the Court shall enter in the
proper register a note of the application and the date on which it
was made, and shall, subject to the provisions hereinafter
contained, order execution of the decree according to the nature
of the application:
Provided that, in the case of a decree for the payment of money,
the value of the property attached shall, as nearly as may be,
correspond with the amount due under the decree.
Scope-It is no doubt correct that the rules of procedure are
handmaids of justice and ordinarily the provisions of Order 21,
Rule 17 are to be interpreted liberally and an amendment to the
execution application should be permitted. It is further not
disputed that an amendment when permitted dates back to the
original filing of the application. The facts of the present case,
however, do not warrant the liberal approach indicated by us.
The execution application was filed in the Court on May 8, 1974
under the signatures of a dead person and as such there was no
application in the eyes of law before the Court. No notice of the
said application was given to the appellant and warrant of
Page 330 of 401

possession was issued on the same date. The order which was
passed in violation of the Rules of natural justice was void and
was rightly set aside by the High Court. It was only after the
remand of the case by the high Court that the appellant got an
opportunity of filing objections before the executing Court which
he did on Aug. 13, 1981. Even on the date when the appellant
filed objections before the executing Court the execution-
application bore the signatures of late r and no other person had
signed or verified the same. It is thus obvious that even in the
year 1981 when the executing Court took notice of the execution-
application after remand from the high Court there was no signed
application before the said Court on behalf of the decree- holders.
No attempt, not even a prayer, was made before the executing
Court for the amendment of the application. It was only on Sept.
29, 1984 after the dismissal of appellant‘s objections that the
executing Court suo motu permitted the amendment of the
application. The procedure, on the face of it was violative of the
provisions of Rules 11 And 17 of the CPC, Jiwani v. Rajmata
Basantika Devi, AIR 1994 SC 1286.
Schedule of property sought to be delivered which were not

incorporated in the execution petition. Held, amendment can be
allowed by the Court, Ravindran & Anr. v. Dandayudhan & Ors.,
AIR 1988 Ker. 32
Affidavit by judgment-debtor disclosing some property, filed after

filing of execution application. Amendment sought to specify the
particulars of the property. Held, in the circumstances of the case
amendment and consequent prayer can be allowed. Rajendra
Page 331 of 401

Prasad Agarwalla & Ors. v. Allahabad Bank & Ors., AIR 1987
Cal. 262.
Section 39 does not authorise the Court to execute the decree

outside its jurisdiction but it does not dilute the other provisions
giving such power on compliance with the conditions stipulated
in those provisions. Thus, the provisions, such as, Order 21, Rule
3 or Order 21, Rule 48 which provide differently, would not be
affected by Section 39(4) of the Code. Salem Advocate Bar
Association, T.N. vs. Union of India 2005 (6) S.C.C. 344. There
cannot be any dispute over the proposition that the Court which
passed the decree is entitled to execute the decree. This is clear
from Section 38 of the Code which provides that a decree may be
executed either by the Court which passed it or by the Court to
which it is sent for execution. Section 42 of the Code indicates
that the transferee Court to which the decree is transferred for
execution will have the same powers in executing that decree as
if it had been passed by itself. A decree could be executed by the
Court which passed the decree so long as it is confined to the
assets within its own jurisdiction or as authorised by Order 21,
Rule 3 or Order 21, Rule 48 of the Code or the judgment debtor is
within its jurisdiction, if it is a decree for personal obedience by
the judgment debtor. But when the property sought to be
proceeded against, is outside the jurisdiction of the Court which
passed the decree acting as the executing Court, there was a
conflict of views earlier, some Courts taking the view that the
Court which passed the decree and which is approached for
execution cannot proceed with execution but could only transmit
Page 332 of 401

the decree to the Court having jurisdiction over the property and
some other Courts taking the view that it is a matter of discretion
for the executing Court and it could either proceed with the
execution or send the decree for execution to another Court. But
this conflict was set at rest by Amendment Act 22 of 2002 with
effect from 1.7.2002, by adopting the position that if the
execution is sought to be proceeded against any person or
property outside the local limits of the jurisdiction of the
executing Court, nothing in Section 39 of the Code shall be
deemed to authorise the Court to proceed with the execution. In
the light of this, it may not be possible to accept the contention
that it is a matter of discretion for the Court either to proceed
with the execution of the decree or to transfer it for execution to
the Court within the jurisdiction of which the property is situate,
Mohit Bhargava v. Bharat Bhushan Bhargava, 2007 (4) SCC
795.
Notice to show cause against execution in certain

cases(Order 21 Rule 22)—(1) Where an application for execution
is made—
(a) more than two years after the date of the decree, or
(b) against the legal representative of a party to the decree or
where an application is made for execution of a decree filed under
the provisions of Section 44A, or
(c) against the assignee or receiver in insolvency, where the party
to the decree has been adjudged to be an insolvent,
the Court executing the decree shall issue a notice to the person
against whom execution is applied for requiring him to show
Page 333 of 401

cause, on a date to be fixed, why the decree should not be

executed against him
Provided that no such notice shall be necessary in consequence
of more than two years having elapsed between the date of the
decree and the application for execution if the application is
made within two years from the date of the last order against the
party against whom execution is applied for, made on any
previous application for execution, or in consequence of the
application being made against the legal representative of the
judgment-debtor if upon a previous application for execution
against the same person the Court has ordered execution to issue
against him.
(2) Nothing in the foregoing sub-Rule shall be deemed to preclude
the Court from issuing any process in execution of a decree
without issuing the notice thereby prescribed, if, for reasons to be
recorded, it considers that the issue of such notice would cause
unreasonable delay or would defeat the ends of justice.
Procedure after issue of notice(Order 21 Rule 23)—(1) Where
the person to whom notice is issued under Rule 22 does not
appear or does not show cause to the satisfaction of the Court
why the decree should not be executed, the Court shall order the
decree to be executed.
(2) Where such person offers any objection to the execution of the
decree, the Court shall consider such objection and make such
order as it thinks fit.
Scope - The idea of issuing of notice under Order 21 Rule 22 is to
ascertain whether the averments as to the amount being claimed
in the execution application are true or incorrect. Besides, even if
Page 334 of 401

the amount was due, the judgment-debtor could have paid it and
he was deprived of this opportunity to clear off dues, if any,
under the decree. It is only after the service of notice under Order
21 Rule 22 of the Code and failure of the judgment-debtor to pay
the decretal amount, as claimed, that the decree-holder takes
recourse to proceedings under Order 21 Rule 54 of the Code. It
will be noticed that sub-Rule (1) of Rule 54 of Order 21 of the
Code contemplates an order of prohibition to be served on the
judgment-debtor from transferring or charging the property in
any way first if the property sought to be sold is immovable
property. This is for the benefit of the decree-holder. Even at this
stage if the judgment-debtor had notice of attachment, he could
pay the balance decretal amount and thereafter attachment
would either not be effected and if already effected would be
vacated. Sub-Rule (1-A) contemplates that this order shall also
require the judgment-debtor to attend Court on a specified date,
to take notice of the date to be fixed for settling the terms of the
proclamation of sale provided under Rule 66 of Order 21 of the
Code. Satyanarain Bajoria v. Amnarain Tibrewal, AIR 1994 SC
1583
Dispensing with the notice under Order 21, Rule 22(1) can be
resorted to only if the Court considered that issue of such notice
would cause unreasonable delay or would defeat the ends of
justice. But dispensing with the notice cannot be axiomatic since
there is nothing on record to show that the Executing Court
satisfied that issuance of notice causes unreasonable delay or
would defect the ends of justice. Therefore, the order straight
away issuing delivery warrant for delivery of the property without
Page 335 of 401

following the mandatory procedure suffers from illegality in

exercise of its jurisdiction and is liable to be set aside, M.
Sheelamma v. B. Alibert S/o Anthony, AIR 2006 A.P. 209
Order 21, Rule 22 culminates in end of one stage before
attachment of the property can take place in furtherance of
execution of decree. The proceedings under Order 21, Rule 23
can only be taken if the executing Court either finds that after
issuing notice, under Section 21, Rule 21, the judgment-debtor
has not raised any objection or if such objection has been raised,
the same has been decided by the executing Court. Sub-Rule (1)
as well as sub-Rule (2) under Order 21, Rule 22, operates
simultaneously on the same field. Sub-Rule (1) operates when no
objection is filed. Then the Court proceeds and clears the way for
going to the next stage of the proceedings namely attachment of
the property and if the Court finds objections on record then it
decides the objections in the first instance and thereafter clears
the way for taking up the matter for attachment of the property if
the objections have been overruled. Whether the order is made
under sub-Rule (1) or sub-Rule (2), it has the effect of
determining the preliminary stage before the attachment process
is set in motion. In this background, the order of the Court to
proceed with attachment on finding that no objection has been
raised also operates as an order deciding the preliminary stage of
the execution proceedings and operates as if the judgment-debtor
has no objection to file. If thereafter, the judgment-debtor wants
to raise an objection in the same proceedings in the absence of
any modification of order passed under Order 21, Rule 22 sub-
Rule (1) or (2), he has to take recourse to get rid of the order by
Page 336 of 401

way of appeal. There is no dispute and it has not been agitated

that the order for proceeding by the judgment under Order 21,
Rule 22 amounts to a decree under Section 47 of CPC and it is
appealable as a decree i.e. to say it is not an appeal against the
interim order but an appeal against the decree which is provided
against the final order. It means that at the different stages of the
execution orders passed by the executing Court have attained
finality unless they are set aside by way of appeal before the
higher forum. Otherwise they bind the parties at the subsequent
stage of the execution proceedings so that the smooth progress of
execution is not jeopardised and the stage which reached the
finality by dint of various orders of the Order 21 operates as res
judicata for the subsequent stage of the proceedings. Since the
order passed at different stage itself operates as a decree and is
appealable as such, the same cannot be challenged in appeal
against subsequent orders also, because appeal against an order
passed under Order 21, Rule 22 does not amount to appeal
against order at initial stage, but amounts to a decree finally
determining the question. That is why no appeal against orders
made under Order 21 has been provided under Order 43. In this
background, where a judgment-debtor has an opportunity to
raise an objection which he could have raised but failed to take
and allowed the preliminary stage to come to an end for taking
up the matter to the next stage for attachment of property and
sale of the property under Order 21, Rule 23 which fell within the
above principle, the judgment-debtor thereafter cannot raise
such objections subsequently and revert back to earlier stage of
proceedings unless the order resulting in termination of
Page 337 of 401

preliminary stage which amounts to a decree is appealed against

and order is set aside or modified. The principles of res judicata
not only apply in respect of separate proceedings but the general
principles also apply at the subsequent stage of the same
proceedings also and the same Court is precluded to go into that
question again which has been decided or deemed to have been
decided by it at an early stage. Barkat Ali v. Badri Narain (d) by
LRs, AIR 2008 SC 1272:
Go to Index
Page 338 of 401

(II) Stay of executions

When Court may stay execution(Order 21 Rule 26)—(1) The
Court to which a decree has been sent for execution shall, upon
sufficient cause being shown, stay the execution of such decree
for a reasonable time, to enable the judgment-debtor to apply to
the Court by which the decree was passed, or to any Court
having appellate jurisdiction in respect of the decree or the
execution thereof, for an order to stay execution, or for any other
order relating to the decree or execution which might have been
made by such Court of first instance or Appellate Court if
execution had been issued thereby, or if application for execution
had been made thereto.
(2) Where the property or person of the judgment-debtor has been
seized under an execution, the Court which issued the execution
may order the restitution of such property or the discharge of
such person pending the result of the application.
(3) Power to require security from, or impose conditions upon,
judgment-debtor.—Before making an order to stay execution, or
for the restitution of property or the discharge of the judgment-
debtor, the Court shall require such security from, or impose
such condition upon, the judgment-debtor as it thinks fit.
Stay of execution pending suit between decree-holder and
judgment-debtors(Order 21 Rule 29)—Where a suit is pending in
any Court against the holder of a decree of such Court or of a
decree which is being executed by such Court, on the part of the
person against whom the decree was passed, the Court may, on
Page 339 of 401

such terms as to security or otherwise, as it thinks fit, stay

execution of the decree until the pending suit has been decided :
Provided that if the decree is one for payment of money, the
Court shall, if it grants stay without requiring security, record its
reasons for so doing.
Scope- Rule 26(1) only relates to granting of limited stay of
execution by execution Court and for only specific purpose as to
enable the judgment-debtor to apply for stay order from the
appellate Court or from the trial Court which passed the decree
for suitable orders. Kum. R. Komala v. Mohammed Iqbal, AIR
1999 Kant, 337
A perusal of or. 21, R. 29, would reveal that there should be
simultaneously two proceedings in one Court. One is the
proceeding in execution at the instance of the decree-holder
against the judgment-debtor and the other a suit at the instance
of the judgment-debtor against the decree-holder. It is not
enough that there is a suit pending by the judgment-debtor it is
further necessary that the suit must be against the holder of a
decree of such Court. The words ―such Court‖ are important.
―Such Court‖ means in the context of that Rule the Court in
which the suit is pending. In other words, the suit must be one
not only pending in that Court but also one against the holder of
a decree of that Court. It is true that in appropriate cases a Court
may grant an injunction against a party not to prosecute a
proceeding in some other Court. But ordinarily Courts, unless
they exercise appellate or revisional jurisdiction, do not have the
power to stop proceedings in other Courts by an order directed to
such Courts. For the specific provisions of law are necessary.
Page 340 of 401

Rule 29 clearly shows that the power of the Court to stay

execution before it flows directly from the fact that the execution
is at the instance of the decree-holder whose decree had been
passed by that Court only. If the decree in execution was not
passed by it, it had no jurisdiction to stay the execution. Shaukat
Hussain alias Ali Akram v. Smt. Bhuneshwari Devi (d) by LRs.
AIR 1973 SC 528
Go to Index
Page 341 of 401

(III)Mode of executions
Decree for payment of money(Order 21 Rule 30)—Every
decree for the payment of money, including a decree for the
payment of money as the alternative to some other relief, may be
executed by the detention in the civil prison of the judgment-
debtor, or by the attachment and sale of his property, or by both.
Scope - Where mode of recovery had been prescribed by
Court granting decree, Executing Court cannot alter same.—
Where though in the money decree, the mode of recovery had
been prescribed by the Court granting decree, the Executing
Court altered the manner of recovery of decretal amount, it was
held that order of the Executing Court was erroneous and was
not sustainable. Radhey Shyam Gupta v. Punjab National Bank,
AIR 2009 SC 930.
Option to apply under Order 21, Rule 30, for execution of a
decree simultaneously against both persons and property of
judgment-debtor is subject to exercise by Court of judicial
discretion vested in it under Order 21, Rule 21—Although,
ordinarily the decree holder has an option to choose any
particular mode for execution of his money decree, it will not be
correct to say that the Court has absolutely no discretion to place
any limitation as to the mode in which the decree is to be
executed. The option to apply under Order 21, Rule 30, CPC for
execution of a decree simultaneously against both the persons
and the property of the judgment-debtor is subject to exercise by
the Court of judicial discretion vested in it under Order 21, Rule
Page 342 of 401

21, CPC. Mahadeo Prasad Singh v. Ram Lochan, AIR 1981 SC

416
Decree-holder does not have liberty or facility to divide
liability among judgment-debtors and choose to recover part
thereof from individual judgment-debtors— The concept of
joint and several liability implies that the decree-holder can
choose to proceed against all or any of the persons so held liable
and, the discharge of the liability by one, would, ensure to the
benefit of all others. Conversely, the satisfaction reported by the
decree-holder in respect of one of the judgment-debtors must
hold good for the others also. It is impermissible to divide the
liability between such judgment-debtors. The liabilities under
decree would subsist against all, till it is discharged but if one of
them is discharged completely, rest of them stand on the same
footing. The decree-holder does not have the liberty or the facility
to divide the liability among the judgment-debtors and choose to
recover part thereof from the individual judgment-debtors.
Damera Narsimha Reddy v. Syed Ibrahim, AIR 2005 A.P. 482
EXECUTION BY MORE THAN ONE METHOD - Composite
money decree being both personal against all the defendants
including guarantor as well as mortgaged decree without
limitation of execution. If the composite decree is a decree which
is both a personal decree as well as mortgage decree, without any
limitation on its execution, the decree holder, in principle cannot
be forced to first exhaust the remedy by way of execution of
mortgaged decree alone and hold that only if the amount
recovered is insufficient, he can be permitted to take recourse to
Page 343 of 401

execution of the personal decree. State Bank of India v. M/s.

Indexpart Registered & Ors., AIR 1992 SC 1740.
Decree for specific movable property(Order 21 Rule 31)—(1)
Where the decree is for any specific movable, or for any share in a
specific movable, it may be executed by the seizure, if practicable,
of the movable or share,and by the delivery thereof to the party to
whom it has been adjudged, or to such person as he appoints to
receive delivery on his behalf, or by the detention in the civil
prison of the judgment-debtor, or by the attachment of his
property, or by both.
(2) Where any attachment under sub-Rule (1) has remained in
force for 3 three months, if the judgment-debtor has not obeyed
the decree and the decree-holder has applied to have the
attached property sold, such property may be sold, and out of the
proceeds the Court may award to the decree-
holder, in cases where any amount has been fixed by the decree
to be paid as an alternative to delivery of movable property, such
amount, and in other cases, such compensation as it thinks fit,
and shall pay the balance (if any) to the judgment-debtor on his
application.
(3) Where the judgment-debtor has obeyed the decree and paid
all costs of executing the same which he is bound to pay, or
where, at the end of three months from the date of the
attachment, no application to have the property sold has been
made, or, if made, has been refused, the attachment shall cease .
Scope - NATURE OF PROCEEDINGS - Direction to break open
the lock would be a formal order and procedural one to give effect
to the decree which had become final. Therefore, it was not a case
Page 344 of 401

to be decided, nor a decree at all. Revision against such order is

not maintainable. Order to break open the lock, cannot be a
decree at all. The wordings used in any case decided ordering
break open is certainly not a case to be decided and it is not a
decree at all. It is only a formal procedural order to give effect to a
decree for possession already passed and which decree has
become final. So long as the decree remains, the executing Court
to bound to direct delivery of possession and if the judgment
debtor thinks that he can avoid delivery of possession by putting
a lock over the premises, it is like trying to hide from the sun
within the umbrella. The Court cannot see method being adopted
to nullify the decree passed and nullify the delivery warrant.
Smt. Appiamma v. Lawrance D‘Souza, AIR 2000 Kant. 246.
Decree for specific performance for restitution of conjugal
rights, or for an injunction (Order 21 Rule 32)—(1) Where the
party against whom a decree for the specific performance of a
contract, or for restitution of conjugal rights, or for an injunction,
has been passed, has had an opportunity of obeying the decree
and has wilfully failed to obey it, the decree may be enforced in
the case of a decree for restitution of conjugal rights by the
attachment of his property or, in the case of a decree for the
specific performance of a contract or for an injunction by his
detention in the civil prison, or by the attachment of his property,
or by both.
(2) Where the party against whom a decree for specific
performance or for an injunction has been passed is a
corporation, the decree may be enforced by the attachment of the
property of the corporation or, with the leave of the Court, by the
Page 345 of 401

detention in the civil prison of the directors or other principal

officers thereof, or by both attachment and detention.
(3) Where any attachment under sub-Rule (1) or sub-Rule (2) has
remained in force for six months, if the judgment-debtor has not
obeyed the decree and the decree-holder has applied to have the
attached property sold, such property may be sold; and out of the
proceeds the Court may award to the decree-holder such
compensation as it thinks fit, and shall pay the balance (if any) to
the judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid
all costs of executing the same which he is bound to pay, or
where, at the end of six months from the date of the attachment
no application to have the property sold has been made, or if
made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or
for an injunction has not been obeyed, the Court may, in lieu of
or in addition to all or any of the processes aforesaid, direct that
the act required to be done may be done so far as practicable by
the decree-holder or some other person appointed by the Court,
at the cost of the judgment-debtor, and upon the act being done
the expenses incurred may be ascertained in such manner as the
Court may direct and may be recovered as if they were included
in the decree.
Explanation.—For the removal doubts, it is hereby declared that
the expression "the act required to be done" covers prohibitory as
well as mandatory injunctions.
Scope – No doubt the wording as framed in Order 21 Rule 32(1)
would indicate that in enforcement of the decree for injunction a
Page 346 of 401

judgment-debtor can either be put in civil prison or his property

can be attached or both the said courses can be resorted to. But
sub-Rule (5) of Rule 32 shows that the Court need not resort to
either of the above two courses and instead the Court can direct
the judgment-debtor to perform the act required in the decree or
the Court can get the said act done through some other person
appointed by the Court at the cost of the judgment-debtor. Thus,
in execution of a decree the Court can resort to a threefold
operation against disobedience of the judgment-debtor in order to
compel him to perform the act. But once the decree is enforced,
the judgment-debtor is free from the tentacles of Rule 32. A
reading of that Rule shows that the whole operation is for
enforcement of the decree. If the injunction or direction was
subsequently set aside or if it is satisfied, the utility of Rule 22
gets dissolved. But the position under Rule 2-A of Order 39 is
different. Even if the injunction order was subsequently set aside,
the disobedience does not get erased. It may be a different matter
that the rigour of such disobedience may be toned down if the
order is subsequently set aside. For what purpose is the property
to be attached in the case of disobedience of the order of
injunction? Sub-Rule (2) provides that if the disobedience or
breach continues beyond one year from the date of attachment,
the Court is empowered to sell the property under attachment
and compensate the affected party from such sale proceeds. In
other words, attachment will continue only till the breach
continues or the disobedience persists subject to a limit of a one-
year period. If the disobedience ceases to continue in the
meanwhile, the attachment also would cease. Thus, even under
Page 347 of 401

Order 39 Rule 2-A, the attachment is a mode to compel the

opposite party to obey the order of injunction. But detaining the
disobedient party in civil prison is a mode of punishment for his
being guilty of such disobedience. Samee Khan v. Bindu Khan,
AIR 1998 SC 2765
A suit for mandatory injunction seeking direction against a
licensee to vacate the premises is maintainable in cases where
the licence has been terminated and suit for possession is not
required to be filed because the licensee after termination of his
licence looses all rights, title or interest over the suit property.
Such decrees are executable under Order 21, Rule 32.
Gurucharan Singh and Anr. v. Gurudwara Shri Singh Sabha
(Regd.), AIR 2004 P&H 270.
Application filed by the J.D. challenging executability of the
decree was rejected. It was found that while passing the decree,
the Court directed the J.D. to leave possession within two
months failing which the D.H. will be entitled to get possession
through the Court. Therefore, execution will be maintainable. In
execution of a decree the Court can resort to a three fold
operation against disobedience of the judgment debtor in order to
compel him to perform the act. But once the decree is enforced,
the judgment-debtor is free from the tentacles of Rule 32. A
reading of that Rule shows that the whole operation is for
enforcement of the decree. If the injunction or direction was
subsequently set aside or if it is satisfied the utility of Rule 32
gets dissolved. In view of what has been decided by different High
Courts and the Apex Court, it is clear that in execution of the
decree the Court can resort to a three fold operation against
Page 348 of 401

disobedience of the judgment debtor in order to compel him to

perform the act. Two of the remedies are provided for in Order 21,
Rule 32, sub-Rule (1) and the third remedy is provided in Order
21, Rule 32, sub-Rule (5) of the Civil Procedure Code. Nilamani
alias Niranjan Biswal v. Krishna Kumar Kamani, 2006 (4) CCC
246 (Ori.): AIR 2006 Ori 182
ORDER FOR DETENTION IN CIVIL PRISON-Where the judgment
debtor violates a decree for permanent injunction; the Court is
competent to order his detention in civil prison. V.S. Alwar
Ayyangar v. Guruswamy Thewar, A.I.R. 1981 Mad. 354.
Judgment debtor can be sent to civil prison not by way of
punishment but only for enforcement of decree when decree has
been wilfully disobeyed. State of Assam v. Subrata Kar, 2004(4)
CCC 135 (Gau.).
Decree for execution of document, or endorsement of
negotiable instrument—(Order 21 Rule 34)---(1) Where a
decree is for the execution of a document or for the endorsement
of a negotiable instrument and the judgment-debtor neglects or
refuses to obey the decree, the decree-holder may prepare a draft
of the document or endorsement in accordance with the terms of
the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the
judgment-debtor together with a notice requiring his objections (if
any) to be made within such time as the Court fixes in this
behalf.
(3) Where the judgment-debtor objects to the draft, his objections
shall be stated in writing within such time, and the Court shall
make such order approving or altering the draft, as it thinks fit.
Page 349 of 401

(4) The decree-holder shall deliver to the Court a copy of the draft
with such alterations (if any) as the Court may have directed
upon the proper stamp-paper if a stamp is required by the law for
the time being in force; and the Judge or such officer as may be
appointed in this behalf shall execute the document so delivered.
(5) The execution of a document or the endorsement of a
negotiable instrument under this Rule may be in the following
form, namely :—
―C. D., Judge of the Court of,(or as the case may be), for A. B., in
a suit by E. F against A. B.‖,
and shall have the same effect as the execution of the document
or the endorsement of the negotiable instrument by the party
ordered to execute or endorse the same.
(6) (a) Where the registration of the document is required under
any law for the time being in force, the Court, or such officer of
the Court as may be authorized in this behalf by the Court, shall
cause the document to be registered in accordance with such
law.
(b) Where the registration of the document is not so, required,
but the decree-holder desires it to be registered, the Court may
make such order as it thinks fit.
(c) Where the Court makes any order for the registration of any
document, it may make such order as it thinks fit as to the
expenses of registration.
Scope - SERVICE OF DRAFT SALE-DEED- Order 21 Rule 34
provides the procedure for execution of documents pursuant to a
decree. Where a decree is for the execution of document the
decree-holder may prepare a draft of the document in d
Page 350 of 401

accordance with the terms of the decree and deliver the same to
the Court. Thereupon, the Court shall cause the draft to be
served on the judgment-debtor together with a notice requiring
his objections, if any, to be made out within time as the Court
fixes in this behalf. Where the judgment-debtor objects to the
draft, his objections shall be stated in writing and then
determined. The draft shall be approved or altered consistently
with the finding arrived at by the Court. In the present case the
plaintiff decree-holders pointed out that the defendant judgment-
debtors were aware of the contents of the draft sale deed. The fact
remains that the draft sale deed accompanied by a notice
requiring objections to be made by a judgment-debtor as
provided by sub-Rule (2) of Rule 34 of Order 21 CPC was not
caused to be served by the Court. The record also reveals the
judgment-debtors repeatedly insisting, may be dogmatically, on
draft sale deed being delivered to them enabling objections being
filed. There is no determination by the executing Court that the
immovable property as delineated and demonstrated in the map
accompanying the draft sale deed was the property forming the
subject-matter of the agreement to sell and the decree. Inasmuch
as the possession is yet to be taken by the plaintiff decree-
holders, this aspect can still be taken care. When the suit as to
immovable property has been decreed and the property is not
definitely identified, the defect in the Court record caused by
overlooking of provisions contained in Order 7, Rule 3 and Order
20, Rule 3 CPC is capable of being cured. After all a successful
plaintiff should not be deprived of the fruits of decree. Resort can
be had to Section 152 or Section 47 CPC depending on the facts
Page 351 of 401

and circumstances of each case - which of the two provisions

would be more appropriate, just and convenient to invoke. Being
an inadvertent error, not affecting the merits of the case, it may
be corrected under Section 152 CPC by the Court which passed
the decree by supplying the omission. Alternatively, the exact
description of decretal property may be ascertained by the
executing Court as a question relating to execution, discharge or
satisfaction of decree within the meaning of Section 47 CPC. A
decree of a competent Court should not, as far as practicable, be
allowed to be defeated on account of an accidental slip or
omission. In the facts and circumstances of the present case, it
would be more appropriate to invoke Section 47 CPC. Pratibha
Singh v. Shanti Devi Prasad. AIR 2003 SC 643.
Decree for immovable property (Order 21 Rule 35)—(1) Where
a decree is for the delivery of any immovable property, possession
thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery
on his behalf, and, if necessary, by removing any person bound
by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable
property, such possession shall be delivered by affixing a copy of
the warrant in some conspicuous place on the property and
proclaiming by beat of drum, or other customary mode, at some
convenient place, the substance of the decree.
(3) Where possession of any building on enclosure is to be
delivered and the person in possession, being bound by the
decree, does not afford free access, the Court, through its
officers, may, after giving reasonable warning and facility to any
Page 352 of 401

woman not appearing in public according to the customs of the

country to withdraw, remove or open any lock or bolt or break
open any door or do any other act necessary for putting the
decree-holder in possession.
Decree for delivery of immovable property when in
occupancy of tenant(Order 21 Rule 36)—Where a decree is for
the delivery of any immovable property in the occupancy of a
tenant or other person entitled to occupy the same and not
bound by the decree to relinquish such occupancy, the Court
shall order delivery to be made by affixing a copy of the warrant
in some conspicuous place on the property, and proclaiming to
the occupant by beat of drum or other customary mode, at some
convenient place, the substance of the decree in regard to the
property.
Scope- Decree for delivery of immovable property- Land in
dispute consisting of consolidation holding and pre-empted
holdings capable of being extricated from conglomerated holding.
Held, relief of actual possession cannot be denied. This fact can
be however left to the Executing Court, held further that the
petitioner can claim actual possession including symbolic
possession. Harnek Singh v. Harbux Singh, AIR 1990 SC 1978
The construction put up by the defendant/judgment-debtor

whether before or after filing of the suit, is liable to be removed if
there is a prayer for possession. When there is a decree for
delivery for vacant possession which would mean and include,
delivery after removing all the structures or anything in the suit
property and therefore, the plaintiff/decree holder is entitled to
take delivery of possession after removal of any manner of
Page 353 of 401
construction or structures in the suit property. Kannu Gounder

v. Natesa Gounder, AIR 2005 Mad. 31
Where physical possession of the entire property not given to the
D.H. in the execution and the process server giving report about
the fact that there was lock in the room and J.D. refused to
handover the possession. The decree therefore executed
piecemeal and possession given of part of immovable property.
Therefore fresh warrant of possession can be issued. LRs of Ram
Kumar v. LRs. of Gulam Rasool, AIR 1999 Raj. 308
Execution of decree for possession, taking objection that he was
entitled to protection under Rent Act. It was found that the
objection was raised by him in the Trial Court and was rejected.
Therefore, the same objection cannot be allowed to be raised
during the execution proceedings. P.V Jose v. Kanickammal
(dead) by LRs, AIR 2000 S.C. 2688
POLICE AID FOR REMOVAL OF ENCROACHMENT- Though O.
21 C.P.C. does not contain any provision, for granting police aid
but as the executing Court is conferred with power to order such
measures, as are needed, to ensure that decree is executed and
specific power is conferred to remove obstructions, even if offered
by third parties, it cannot be said that executing Court lacked
competence, in ordering police protection. Bandi Prasada Rao &
Anr. v. P. Hari Kesavulu AIR 2007 A.P. 125.
Power of the Executing Court to provide police help for removal of
persons from the property in question. Police help can be
provided after making enquiry and not only on the basis of
record. Indira Transport v. Rattan Lal, AIR 1998 Del. 2.
Go to Index
Page 354 of 401

Arrest and Detention in the Civil Prison

Discretionary power to permit judgment debtor to show
cause against detention in prison (Order 21 Rule 37)—(1)
Notwithstanding anything in these Rules, where an application is
for the execution of a decree for the payment of money by the
arrest and detention in the civil prison of a judgment debtor who
is liable to be arrested in pursuance of the application, the Court
shall instead of issuing a warrant for his arrest, issue a notice
calling upon him to appear before the Court on a day to be
specified in the notice and show cause why he should not be
committed to the civil prison:
Provided that such notice shall not be necessary if the Court is
satisfied, by affidavit, or otherwise, that with the object or effect
of delaying the execution of the decree, the judgment debtor is
likely to abscond or leave the local limits of jurisdiction of the
Court.
(2) Where appearance is not made in obedience to the notice, the
Court shall if the decree holder so requires, issue a warrant for
the arrest of the judgment debtor.
Proceedings on appearance of judgment-debtor in obedience
to notice or after arrest (Order 21 Rule 40)—(1)When a
judgment-debtor appears before the Court in obedience to a
notice issued under Rule 37, or is brought before the Court after
being arrested in execution of a decree for the payment of money,
the Court shall proceed to hear the decree-holder and take all
such evidence as may be produced by him in support of his
application for execution and shall then give the judgment-debtor
Page 355 of 401

an opportunity of showing cause why he should not be

committed to the civil prison.
(2) Pending the conclusion of the inquiry under sub-Rule (1) the
Court may, in its discretion, order the judgment-debtor to be
detained in the custody of an officer of the Court or release him
on his furnishing security to the satisfaction of the Court for his
appearance when required.
(3) Upon the conclusion of the inquiry under sub-Rule (1) the
Court may, subject to the provisions of Section 51 and to the
other provisions of this Code, make an order for the detention of
the judgment-debtor in the civil prison and shall in that event
cause him to be arrested if he is not already under arrest
Provided that in order to give the judgment-debtor an opportunity
of satisfying the decree, the Court may, before making the order
of detention, leave the judgment-debtor in the custody of an
officer of the Court for a specified period not exceeding fifteen
days or release him on his furnishing security to the satisfaction
of the Court for his appearance at the expiration of the specified
period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this Rule may be re-
arrested.
(5) When the Court does not make an order of detention under
sub-Rule (3) it shall disallow the application and, if the
judgment-debtor is under arrest, direct his release.
Scope – Order 21 Rule 39 C.P.C. provides that No judgment-
debtor shall be arrested in execution of a decree unless and until
the decree-holder pays into Court such sum as the Judge thinks
sufficient for the subsistence of the judgment-debtor from the
Page 356 of 401

time of his arrest until he can be brought before the Court.

Where a judgment-debtor is committed to the civil prison in
execution of a decree, the Court shall fix for his subsistence such
monthly allowance as he may be entitled to according to the
scales fixed under Section 57, or, where no such scales have
been fixed, as it considers sufficient with reference to the class to
which he belongs.
Section 57 of C.P.C.—The State Government may fix scales,
graduated according to rank, race and nationality, of monthly
allowances payable for the subsistence of judgment-debtors.
Section 58 of C.P.C. provides the period of detention- (1)
Every person detained in the civil prison in execution of a decree
shall be so detained,—
(a) where the decree is for the payment of a sum of money
exceeding five thousand rupees, for a period not exceeding three
months, and,
(b) where the decree is for the payment of a sum of money
exceeding two thousand rupees, but not exceeding five thousand
rupees, for a period not exceeding six weeks.
(1A) For the removal of doubts, it is hereby declared that no order
for detention of the judgment-debtor in civil prison in execution
of a decree for the payment of money shall be made, where the
total amount of the decree does not exceed two thousand rupees.
(2) A judgment-debtor released from detention under this Section
shall not merely by reason of his release be discharged from his
debt, but he shall not be liable to be re-arrested under the decree
in execution of which he was detained in the civil prison.
Page 357 of 401

Section 56 of C.P.C. - 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 or
detention in the civil prison of a woman in execution of a decree
for the payment of money.
Section 55 of C.P.C. provides that-(1) A judgment-debtor may be
arrested in execution of a decree at, any hour and on any day,
and shall, as soon as practicable, be brought before the Court,
and his detention may be in the civil prison of the district in
which the Court ordering the detention is situate, or, where such
civil prison does not afford suitable accommodation, in any other
place which the State Government may appoint for the detention
of persons ordered by the Courts of such district to be detained:
Provided, firstly that, for the purpose of making an arrest under
this Section, no dwelling-house shall be entered after sunset and
before sunrise:
Provided, secondly, that no outer door of a dwelling-house shall
be broken open unless such dwelling-house is in the occupancy
of the judgment-debtor and he refuses or in any way prevents
access thereto, but when the officer authorized to make the
arrest has duly gained access to any dwelling-house, he may
break open the door of any room in which he has reason to
believe the judgment-debtor is to be found:
Provided, thirdly that, if the room is in the actual occupancy of a
woman who is not the judgment-debtor and who according to the
customs of the country does not appear in public, the officer
authorized to make the arrest shall give notice to her that she is
at liberty to withdraw, and, after allowing a reasonable time for
Page 358 of 401

her to withdraw and giving her reasonable facility for

withdrawing, may enter the room for the purpose of making the
arrest:
Provided, fourthly, that, where the decree in execution of which a
judgment-debtor is arrested, is a decree for the payment of
money and the judgment-debtor pays the amount of the decree
and the costs of the arrest to the officer arresting him, such
officer shall at once release him.
(2) The State Government may, by notification in the Official
Gazette, declare that any person or class of persons whose arrest
might be attended with danger or inconvenience to the public
shall not be liable to arrest in execution of a decree otherwise
than in accordance with such procedure as may be prescribed by
the State Government in this behalf.
(3) Where a judgment-debtor is arrested in execution of a decree
for the payment of money and brought before the Court, the
Court shall inform him that he may apply to be declared an
insolvent, and that he may be discharged if he has not committed
any act of bad faith regarding the subject of the application and if
he complies with the provisions of the law of insolvency for the
time being in force.
(4) Where a judgment-debtor expresses his intention to apply to
be declared an insolvent and furnishes security, to the
satisfaction of the Court, that he will within one month so apply,
and that he will appear, when called upon, in any proceeding
upon the application or upon the decree in execution of which he
was arrested, the Court may release him from arrest, and, if he
fails so to apply and to appear, the Court may either direct the
Page 359 of 401

security to be realized or commit him to the civil prison in

execution of the decree.
In Jolly George Varghese v. Bank of Cocin, AIR 1980 SC 470 the

Hon‘ble Supreme Court has clearly laid down as follows:―As long
as there is no dishonesty and mala fide on the part of the
judgment debtor to discharge his obligation committing him to
civil person would amount to violation of Article 11 of the
International Covenant on Civil and Political Rights and Article
21 of the Constitution of India. Therefore, it is the decree holder,
who has to demonstrate that the judgment debtor has wilfully
with the mala fide intention to deprive the benefit of the decree, is
refusing to pay the decretal amount, in spite of having sufficient
means to pay.
OPPORTUNITY OF HEARING-Where decree passed for payment
of money and application filed by the DH for his detention in the
civil prison. The Court before detaining the JD must consider the
matter after giving opportunity of hearing, Mukh Ram & Anr. v.
Hardeep Singh, AIR 1987 Raj 1:
Rule 40 is a mandatory provision- The decree holder filed an
affidavit stating that the judgment-debtor has got means and
based on that statement, the executing Court ordered arrest
warrant, the petitioner was brought before the Court under
arrest. When such a person is brought before the Court under
arrest it has to follow the procedure prescribed under Order 21,
Rule 40 of the CPC. The mere fact that the Court below has
ordered warrant relying on an affidavit filed by the decree holder
alone is not a ground to hold that thereafter the Court need not
consider the plea of no means as held by the executing Court.
Page 360 of 401
Order 21, Rule 40 is a mandatory provision. Rule 40 of 21

prescribes the procedure to be followed when the judgment-
debtor appears before the Court in obedience of a notice under
Rule 37 or brought under arrest. M.V. Raju v. The Manager,
Indian Overseas Bank, AIR 2006 Ker. 379
As per Order 21, Rule 37, the executing Court shall, instead of
issuing warrant of arrest of judgment debtor, issue a notice
calling upon him to appear before the Court and require him to
show cause as to why he should not be committed to Civil prison,
when judgment-debtor appears before the Court, the Court shall
hear the judgment-debtor. As per Order 21, Rule 37(1), it is
obligatory on the part of Court to issue a notice instead of
ordering arrest straightaway and call upon the judgment debtor
to explain as to why he should not be sent to civil prison. In the
same way, Order 21, Rule 40 is not only procedural but also
mandatory. S. Ismail v. Agraseni Chit Funds (P) Ltd., AIR 2005
AP 33:
Merely because judgment-debtor is salaried employee, it cannot
be said that amount can only be realised by attaching his salary
and not by means of his arrest and detention in civil prison.
Patnana Venkataramana v. Vungatla Appa Rao AIR 2010
A.P.230.
Order of arrest on the ground of simple default in payment of
decretal amount is not justified. It must be proved that JD was
having enough funds to pay and was purposely evading or
delaying to pay the decretal amounts, Kal Ram Alagappan v.
Rajaguru and Co., AIR 1985 Mad 353
Page 361 of 401

FIDUCIARY OBLIGATION TO PAY LOAN-Contentions of

inability to pay the amount. Subsequent order of arrest of surety
in execution of the decree will not be illegal. The word ―fiduciary
capacity of account‖ occurring in clause (c) to Section 51 only
makes it clear that a person having duty created by his
undertaking to act primarily for interest benefit in matters
connected with such undertaking as fiduciary obligations. It is
also commonly understood that whenever a person stands surety
and only on the basis of such surety the lender parts with be
money. But for such confidence and reliance on the surety the
transaction would not have been even come through. Such a
person to whom the money was advanced cannot later on plead
that he is a person having no means. Framers of the Code has
thought of and incorporated the words ―fiduciary capacity of
account‖ in sub-clause (c) to proviso to Section 51 to make the
provisions clear. Shankareppa, Major v. The Thunhabhadra
Grameena Bank, Mudagal & Anr., AIR 2000 Kant. 326.
Go to Index
Page 362 of 401

Attachment of property
Examination of judgment-debtor as to his property (Order 21
Rule 41)— (1) Where a decree is for the payment of money the
decree-holder may apply to the Court for an order that—
(a) the judgment-debtor, or
(b)where the judgment-debtor is a corporation] any officer
thereof, or
(c) any other person,
be orally examined as to whether any or what debts are owing to
the judgment-debtor and whether the judgment-debtor has any
and what other property or means of satisfying the decree; and
the Court may make an order for the attendance and
examination of such judgment-debtor, or officer or other person,
and for the production of any books or documents.
(2) Where a decree for the payment of money has remained
unsatisfied for a period of thirty days, the Court may, on the
application of the decree-holder and without prejudice to its
power under sub-Rule (1), by order require the judgment-debtor
or where the judgment-debtor is a corporation, any officer
thereof, to make an affidavit stating the particulars of the assets
of the judgment-debtor.
(3) In case of disobedience of any order made under sub-Rule (2),
the Court making the order, or any Court to which the
proceeding is transferred, may direct that the person disobeying
the order be detained in the civil prison for a term not exceeding
three months unless before the expiry of such term the Court
directs his release.
Page 363 of 401

Attachment in case of decree for rent or mesne profits or

other matter, amount of which to be subsequently
determined (Order 21 Rule 42)—Where a decree directs an
inquiry as to rent or mesne profits or any other matter, the
property of the judgment-debtor may, before the amount due
from him has been ascertained, be attached, as in the case of an
ordinary decree for the payment of money.
Scope - Object of invoking provision of Order 21, Rule 41 is to get
necessary information related to properties of judgment-debtor so
as to realise debt without difficulty. The disclosure of assets of
judgment-debtor which is within special knowledge of judgment-
debtor is a preliminary step towards execution of decree The
provision is intended only to aid execution and not one of modes
of execution. Thus, scope of Order 21 Rule 41 cannot be
restricted only to case of sale and attachment of property, State
Bank of India v/s M. K. Raveendran, AIR 2010 Ker. 20.
Where a decree is transferred for execution, transferring Court
can exercise jurisdiction to examine the judgment debtor about
his property even after transfer of execution. The main question
to be decided is whether, after a decree is transmitted for
execution to another Court, the Court passing jurisdiction in
respect of the decree. An application for examination of a
judgment debtor is strictly not an application for execution. The
different modes of execution for a money decree have been set
out in Rule 30 of Order 21 of the Code of Civil Procedure. The
modes of execution laid down is by attachment and sale of his
property, or by the civil imprisonment of the judgment debtor or
by both. The examination of a judgment debtor is not indicated
Page 364 of 401

as a mode of execution of a money decree. Shew Kumar Nopany

v. Grindlays Bank Limited, AIR 1986 Cal. 328
Attachment of movable property(Order 21 Rule 43 to 53)

Attachment of movable property, other than agricultural
produce, in possession of judgment-debtor (Order 21 Rule
43)—Where the property to be attached is movable property other
than agricultural produce, in the possession of the judgment-
debtor, the attachment shall be made by actual seizure, and the
attaching officer shall keep the property in his own custody or in
the custody of one of his subordinates, and shall be responsible
for the due custody thereof :
Provided that, when the property seized is subject to speedy and
natural decay, or when the expense of keeping it in custody is
likely to exceed its value, the attaching officer may sell it at once.
Scope – Order 21 Rule 43A (1) provides that where the property
attached consists of live-stock, agricultural implements or other
articles which cannot conveniently be removed and the attaching
officer does not act under the proviso to Rule 43, he may, at the
instance of the judgment-debtor or of the decree holder or of any
other person claiming to be interested in such property, leave it
in the village or place where it has been attached, in the custody
of any respectable person who is called ―custodian‖.
The object of Section 60 CPC is that certain items which are
necessary for sustaining of human beings have been deleted from
the list of the items which are made attachable. The purpose is
that the labourers who do hard work and earn wages should not
be denied the basic needs to sustain themselves or the
agriculturists who have to use agricultural implements should
Page 365 of 401
not be prevented from continuing their agricultural operations or

the women who have to use certain ornaments as custody should
not feel insult to mingle with their relatives or move in the
society. Therefore, the Legislature with oblique motive seems to
have excluded certain items from the attachable items. In view of
the same, it is clear that the wages of labourers or domestic
servants are not attachable, Guguloth Babu Rao & Ors. v/s
Suraksha Chit Funds & Anr., AIR 2011 (NOC) 153 (A.P.).
Attachment of agricultural produce (Order 21 Rule 44)—

Where the property to be attached is agricultural produce, the
attachment shall be made by affixing a copy of the warrant of
attachment,—
(a) where such produce is a growing crop, on the land on which
such crop has grown, or
(b) where such produce has been cut or gathered, on the
threshing floor or place for treading out grain or the like or
fodder-stack on or in which it is deposited,
and another copy on the outer door or on some other
conspicuous part of the house in which the judgment-debtor
ordinarily resides or, with the leave of the Court, on the outer
door or on some other conspicuous part of the house in which he
carries on business or personally works for gain or in which he is
known to have last resided or carried on business or personally
worked for gain; and the produce shall thereupon be deemed to
have passed into the possession of the Court.
Scope - Order 21 Rule 45 provides that -(1) Where agricultural
produce is attached, the Court shall make such arrangements for
the custody thereof as it may deem sufficient and, for the
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purpose of enabling the Court to make such arrangements, every

application for the attachment of a growing crop shall specify the
time at which it is likely to be fit to be cut or gathered.
(2) Subject to such conditions as may be imposed by the Court in
this behalf either in the order of attachment or in any subsequent
order, the judgment-debtor may tend, cut, gather and store the
produce and do any other act necessary for maturing or
preserving it; and if the judgment-debtor fails to do, all or any of
such acts, the decree-holder may, with the permission of the
Court and subject to the like conditions, do all or any of them
either by himself or by any person appointed by him in this
behalf and the costs incurred by the decree-holder shall be
recoverable from the judgment-debtor as if they were included in,
or formed part of, the decree.
(3) Agricultural produce attached as a growing crop shall not be
deemed to have ceased to be under attachment or to require re-
attachment merely because it has been served from the soil.
(4) Where an order for the attachment of a growing crop has been
made at a considerable time before the crop is likely to be fit to be
cut or gathered, the Court may suspend the execution of the
order for such time as it thinks fit, and may, in its discretion,
make a further order prohibiting the removal of the crop pending
the execution of the order of attachment.
(5) A growing crop which from its nature does not admit of being
stored shall not be attached under this Rule at any time less
than twenty days before the time at which it is likely to be fit to
be cut or gathered.
Page 367 of 401

Where the J.D. claims to be agriculturist or labourer, he has to

show that what is his main source of income. Unless he shows
that his main source of income was from agriculture, he cannot
take benefit of relevant provisions of Section 60(1)(c), Neelavva v.
Kareppa Bapu Bandigani and Anr., AIR 1986 Kant. 224.
Attachment of share in movables (Order 21 Rule 47)—Where

the property to be attached consists of the share or interest of the
judgment-debtor in movable property belonging to him and
another as co-owners, the attachment shall be made by a notice
to the judgment-debtor prohibiting him from transferring the
share or interest or charging it in any way.
Attachment of salary or allowances of servant of the
Government or railway company or local authority (Order 21
Rule 48)—(1) Where the property to be attached is the salary or
allowances of a servant of the Government or of a servant of a
railway company or local authority or of a servant of a
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 the Companies Act, 1956 (1 of 1956)]
the Court, whether the judgment-debtor or the disbursing officer
is or is not within the local limits of the Court's jurisdiction, may
order that the amount shall, subject to the provisions of Section
60, be withheld from such salary or allowances either in one
payment or by monthly instalments as the Court may direct; and
upon notice of the order to such officer as the appropriate
Government may by notification in the Official Gazette appoint in
this behalf,—
Page 368 of 401

(a) where such salary or allowances are to be disbursed within

the local limits to which this Code for the time being extends, the
officer or other person whose duty it is to disburse the same shall
withhold and remit to the Court the amount due under the order,
or the monthly instalments, 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 the disbursing authority regarding
the amount of the salary or allowances to be disbursed shall
remit to the Court the amount due under the order, or the
monthly instalments, as the case may be, and shall direct the
disbursing authority to reduce the aggregate of the amounts from
time to time to be disbursed by the aggregate of the amounts
from time to time remitted to the Court.
(2) Where the attachable proportion of such salary or allowances
is already being withheld and remitted to a Court in pursuance of
a previous and unsatisfied order of attachment, the officer
appointed by the appropriate Government in this behalf shall
forthwith return the subsequent order to the Court issuing it
with a full statement of all the particulars of the existing
attachment.
(3) Every order made under this Rule, unless it is returned in
accordance with the provisions of sub-Rule(2) shall, without
further notice or other process, bind the appropriate Government
or the railway company or local authority or corporation of
Government company, as the case may be, while the judgement-
debtor is within the local limits to which this Code for the time
being extends and while he is beyond those limits, if he is in
Page 369 of 401

receipt of any salary or allowances payable out of the

Consolidated Fund of India or the Consolidated Fund of the State
or the funds of a railway company or local authority or
corporation or Government company in India; and the
appropriate Government or the railway company or local
authority or corporation or Government company, as the case
may be, shall be liable for any sum paid in contravention of this
Rule.
Explanation. —In this Rule, ―appropriate Government‖ means, —
(i) as respects any person in the service of the Central
Government, or any servant of a railway administration or of a
cantonment authority or of the port authority of a major port, or
any servant of a corporation engaged in any trade or industry
which is established by a Central Act, or any servant of a
Government company in which any part of the share capital is
held by the Central Government or by more than one State
Governments or partly by the Central Government and partly by
one or more State Governments, the Central Government;
(ii) As respects any other servant of the Government, or a servant
of any other local or other authority, or any servant of a
corporation engaged in any trade or industry which is established
by a Provincial or State act, or a servant of any other Government
company, the State Government
Attachment of salary or allowances of private employees
(Order 21 Rule 48A)—(1) Where the property to be attached is
the salary or allowances of an employee other than an employee
to whom Rule 48 applies, the Court, where the disbursing officer
of the employee is within the local limits of the Court's
Page 370 of 401

jurisdiction, may order that the amount shall, subject to the

provision of Section 60, be withheld from such salary or
allowances either in one payment or by monthly instalments as
the Court may direct; and upon notice of the order to such
disbursing officer, such disbursing officer shall remit to the Court
the amount due under the order, or the monthly instalments, as
the case may be.
(2) Where the attachable portion of such salary or allowances is
already being withheld or remitted to the Court in pursuance of a
previous and unsatisfied order of attachment, the disbursing
officer shall forthwith return the subsequent order to the Court
issuing it with a full statement of all the particulars of the
existing attachment.
(3) Every order made under this Rule, unless it is returned in
accordance with the provisions of sub-Rule (2), shall, without
further notice or other process, bind the employer while the
judgment-debtors, is within the local limits to which this Code for
the time being extends and while he is beyond those-limits, if he
is in receipt of salary or allowances payable out of the funds of an
employer in any part of India, and the employer shall be liable for
any sum paid in contravention of this Rule.
Scope-After completion of 24 months of continuous attachment
of salary of judgment debtor, again attachment of salary for
second time, in very same decree would not be permissible, and
would be finally exempted from attachment. Shaik Noorjahan v/s
M. Rajeswari, AIR 2010 A.P. 207.
It is clear from the relevant provisions of Section 60(g) and also
Section 13 of Payment of Gratuity Act that the gratuity payable
Page 371 of 401

under the Act to an employee in any factory or mine etc., shall

not be liable for attachment in execution of any decree. G.
Narayana Rao v. V.R. Nagamani, 1995(2) BC 596.
Execution of decree against firm (Order 21 Rule 50) —
(1) Where a decree has been passed against a firm, execution

may be granted—(a) against any property of the partnership;
(b) against any person who has appeared in his own name under
Rule 6 or Rule 7 of Order XXX or who has admitted on the
pleadings that he is, or who has been adjudged to be, a partner;
(c) against any person who has been individually served as a
partner with a summons and has failed to appear;
Provided that nothing in this sub-Rule shall be deemed to limit or
otherwise affect the provisions of Section 30 of the Indian
Partnership Act, 1932.
(2) Where the decree-holder claims to be entitled to cause the
decree to be executed against any person other than such a
person as is referred to in sub-Rule (1), clauses (b) and (c), as
being a partner in the firm, he may, apply to the Court which
passed the decree for leave, and where the liability is not
disputed, such Court may grant such leave, or, where such
liability is disputed, may order that the liability of such person be
tried and determined in any manner in which any issue in a suit
may be tried and determined.
(3) Where the liability of any person has been tried and
determined under sub-Rule (2), the order made thereon shall
have the same force and be subject to the same conditions as to
appeal or otherwise as if it were a decree.
Page 372 of 401

(4) Save as against any property of the partnership, a decree

against a firm shall not lease, render liable or otherwise affect
any partner therein unless he has been served with a summons
to appear and answer.
(5) Nothing in this Rule shall apply to a decree passed against a
Hindu Undivided Family by virtue of the provisions of Rule 10 of
Order XXX.
The execution under this Rule (Order 21 Rule 50) can only be
granted where a decree has been passed against a firm. A decree
against the firm must perforce be in the firm‘s name under this
Rule, execution may be granted against the partnership property.
It may be granted against the partners, in which case the decree
holder may proceed against the separate property of the partners.
In the case of Sahu Rajeshwar Rao v. I.T.O., AIR 1969 SC 667 the
Court ruled that the liability of the partner of the firm is joint and
several and it is open to a creditor of the firm to recover the debt
of the firm from any one or more of the partners. In a decree
against partnership firm, each partner is personally liable except
the minor whose liability is limited to his assets in the
partnership, Ashutosh v. State of Rajasthan and Others, AIR
2005 SC 3434:
Attachment of property in custody of Court or public officer
(Order 21 Rule 52)—Where the property to be attached is in the
custody of any Court or public officer, the attachment shall be
made by a notice to such Court or officer, requesting that such
property, and any interest or dividend becoming payable thereon,
may be held subject to the further orders of the Court from which
the notice is issued:
Page 373 of 401

Provided that, where such property is in the custody of a Court,

any question of title or priority arising between the decree-holder
and any other person, not being the judgment-debtor, claiming to
be interested in such property by virtue of any assignment,
attachment or otherwise, shall be determined by such Court.
Attachment of immovable property

Attachment of immovable property (Order 21 Rule 54)—(1)
Where the property is immovable, the attachment shall be made
by an order prohibiting the judgment-debtor from transferring or
charging the property in any way, and all persons from taking
any benefit from such transfer of charge
(1A) The order shall also require the judgment-debtor to attend
Court on a specified date to take notice of the date to be fixed for
settling the terms of the proclamation of sale.
(2) The order shall be proclaimed at some place on or adjacent to
such property by beat of drum or other customary mode, and a
copy of the order shall be affixed on a conspicuous part of the
property and then upon, a conspicuous part of the Court-house,
and also, where the property is land paying revenue to the
Government, in the office of the Collector of the district in which
the land is situate and, where the property is land situate in a
village, also in the office of the Gram Panchayat, if any, having
jurisdiction over that village.
Scope - Each stage of the sale is governed by the provisions of
the Code. Under the provisions of Order 21, Rule 54 and Order
21, Rule 66, at each stage of the execution of the decree, when a
property is sold, it is mandatory that notice shall be served upon
the person whose property is being sold in execution of the
Page 374 of 401
decree, and any property which is sold, without notice to the

person whose property is being sold, is a nullity, and all actions
pursuant thereto are liable to be struck down/quashed, M/s.
Mahakal Automobiles v. Kishan Swaroop Sharma, AIR 2008 SC
2061.
The purpose of attachment under Rule 54 is to make the
judgment-debtor aware that attachment has been effected and
that he should not make any transfer or encumber the property
thereafter. It is in the interest of the decree-holder to have the
notice of attachment served personally on the judgment-debtor.
Nevertheless the sale is not void, though the omission to serve
the copy of the order of attachment is an irregularity. Since no
encumbrance thereafter was created on the attached property,
non-service of the copy of the order of attachment on the
judgment-debtor does not render the sale invalid, Desh Bandhu
Gupta v. N.L. Anand and Rajinder Singh, 1994 (1) SCC 131.
Determination of attachment (Order 21 Rule 57)—(1) Where

any property has been attached in execution of a decree and the
Court, for any reason, passes an order dismissing the application
for the execution of the decree, the Court shall direct whether the
attachment shall continue or cease and shall also indicate the
period upto which such attachment shall continue or the date on
which such attachment shall cease.
(2) If the Court omits to give such direction, the attachment shall
be deemed to have ceased.
Scope- Adjudication of claims to or objections to attachment
of property —Order 21 Rule 58 provided that -(1) Where any
claim is preferred to, or any objection is made to the attachment
Page 375 of 401
of, any property attached in execution of a decree on the ground

that such property is not liable to such attachment, the Court
shall proceed to adjudicate upon the claim or objection in
accordance with the provisions herein contained :
Provided that no such, claim or objection shall be entertained—
(a) where, before the claim is preferred or objection is made, the
property attached has already been sold; or
(b) where the Court considers that the claim or objection was
designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or
interest in the property attached) arising between the parties to a
proceeding or their representatives under this Rule and relevant to
the adjudication of the claim or objection, shall be determined by
the Court dealing with the claim or objection and not by a separate
suit.
(3) Upon the determination of the questions referred to in sub-
Rule (2), the Court shall, in accordance with such
determination—
(a) allow the claim or objection and release the property from
attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or
other interest in favour of any person; or
(d) pass such order as in the circumstances of the case it deems
fit.
(4) Where any claim or objection has been adjudicated upon
under this Rule, order made thereon shall have the same force
Page 376 of 401

and be subject to the same conditions as to appeal or otherwise

as if it were a decree.
(5) Where a claim or an objection is preferred and the Court,
under the proviso to sub-Rule (1), refuses to entertain it, the
party against whom such order is made may institute a suit to
establish the right which he claims to the property in dispute;
but, subject to the result of such - suit, if any, an order so
refusing to entertain the claim or objection shall be conclusive.
Scope - In a case Tavvala Veeraswami v. Pulim Ramanna, AIR
1935 Mad 365, which was decided by a Full Bench of the Madras
High Court, an order dismissing a suit for default was set aside
on an application for that purpose. It was held that where an
order dismissing a suit for default is set aside on an application
for that purpose, the suit remains as it was on the day when it
was dismissed and all proceedings taken up to that date must be
deemed to be in force when the dismissal is set aside and all
interlocutory orders will be revived on the setting aside of the
dismissal. Similarly, an order for attachment of property will also
be revived. In that case an attachment before judgment was
raised on security being furnished. The suit in which the
attachment was levied was dismissed for default, but was
restored on an application made for that purpose and decreed
and the decree holder sought to enforce the security bond. It was
held that on the restoration of the suit, all ancillary orders were
restored without any further order, and that therefore, the
security bond given for the raising of attachment before judgment
was also restored and the decree holder was entitled to enforce
the security bond.
Page 377 of 401

Order 21, Rule 58 of the code is a material provision relating to

any claim that may be preferred or any objection that may be
made to the attachment of any property in execution of a decree.
Any sale that is held would, undoubtedly, be subject to the order
that may be passed under Order 21, Rule 58 of the Code and,
thereafter, as provided in the Code before its amendment in
1976, the result of a suit that may be filed challenging such order
passed by the executing Court under Order 21, Rule 58. But after
a sale becomes absolute on the dismissal of the application of the
judgment-debtors claim for setting aside the sale, another
application for setting aside the sale by the judgment-debtor is
not maintainable and the period of limitation as prescribed by
Article 134 of the Limitation Act cannot be computed from the
date of the dismissal of the second application for setting aside
the scale, Ganpat Singh (Dead) by LRs. v. Kailash Shankar, AIR
1987 SC 1443.
Sale of property
Proclamation of sales by public auction (Order 21 Rule 66)—
(1) Where any property is ordered to be sold by public auction in
execution of a decree, the Court shall cause a proclamation of the
intended sale to be made in the language of such Court.
(2) Such proclamation shall be drawn up after notice to the
decree-holder and the judgment-debtor and shall state the time
and place of sale, and specify as fairly and accurately as
possible—
(a) the property to be sold or, where a part of the property
would be sufficient to satisfy the decree, such part;
Page 378 of 401

(b) the revenue assessed upon the estate or past of the estate,
where the property to be sold is an interest in an estate or in
part of an estate paying revenue to the Government;
(c) any encumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered;
and
(e) every other thing which the Court considers material for a
purchaser to know in order to judge of the nature and value of
the property :
Provided that where notice of the date for settling the terms of the
proclamation has been given to the judgment-debtor by means of
an order under Rule 54, it shall not be necessary to give notice
under this Rule to the judgment-debtor unless the Court
otherwise directs :
Provided further that nothing in this Rule shall be construed as
requiring the Court to enter in the proclamation of sale its own
estimate of the value of the property, but the proclamation shall
include the estimate, if any, given, by either or both of the
Parties.
(3) Every application for an order for sale under this Rule shall be
accompanied by a statement signed and verified in the manner
herein before prescribed for the signing and verification of
pleadings and containing, so far as they are known to or can be
ascertained by the person making the verification, the matters
required by sub-Rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in
the proclamation, the Court may summon any person whom it
thinks necessary to summon and may examine him in respect to
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any such matters and require him to produce any document in

his possession or power relating thereto.
Mode of making proclamation (Order 21 Rule 67) — (1) Every
proclamation shall be made and published, as nearly as may be,
in the manner prescribed by Rule 54, sub-Rule (2).
(2) Where the Court so directs, such proclamation shall also be
published in the Official Gazette or in a local newspaper, or in
both, and the costs of such publication shall be deemed to be
costs of the sale.
(3) Where property is divided into lots for the purpose of being
sold separately, it shall not be necessary to make a separate
proclamation for each lot, unless proper notice of the sale cannot,
in the opinion of the Court, otherwise be given.
Scope - Order 21 Rule 68 provides that - Save in the case of
property of the kind described in the proviso to Rule 43, no sale
hereunder shall, without the consent in writing of the judgment-
debtor, take place until after the expiration of at least fifteen
days in the case of immovable property, and of at least seven
days in the case of movable property, calculated from the date on
which the copy of the proclamation has been affixed on the
Court-house of the Judge ordering the sale.
It is important to mention that as per Rule 72 &72A of order 21
Decree holder and Mortgagee not to bid for or buy property
without permission of the Court.
Sale of movable property

Sale of agricultural produce (Order 21 Rule 74)—(1) Where the
property to be sold is agricultural produce, the sale shall be
held,—
Page 380 of 401
(a) if such produce is a growing crop, on or near the land on

which such crop has grown, or
(b) if such produce has been cut or gathered, at or near the
threshing floor or place for trading out grain or the like or fodder-
stack on or in which it is deposited :
Provided that the Court may direct the sale to be held at the
nearest place of public resort, if it is of opinion that the produce
is thereby likely to sell to greater advantage.
(2) Where, on the produce being put up for sale,—
(a) a fair price, in the estimation of the person holding the sale, is
not offered for it, and
(b) the owner of the produce or a person authorized to act in his
behalf applies to have the sale postponed till next day or, if a
market is held at the place of sale, the next market-day,
the sale shall be postponed accordingly and shall be then
completed, whatever price may be offered for the produce.
Sale by public auction (Order 21 Rule 77)—(1) Where movable
property is sold by public auction the price of each lot shall be
paid at the time of sale or as soon after as the officer or other
person holding the sale directs, and in default of payment the
property shall forthwith be re-sold.
(2) On payment of the purchase-money, the officer or other
person holding the sale shall grant a receipt for the same, and
the sale shall become absolute.
(3) Where the movable property to be sold is a share in goods
belonging to the judgment-debtor and a co-owner, and two or
more persons, of whom one is such co-owner, respectively bid the
Page 381 of 401

same sum for such property or for any lot, the bidding shall be
deemed to be the bidding of the co-owner.
Sale of immovable property

Postponement of sale to enable judgment-debtor to raise
amount of decree(Order 21 Rule 83) — (1) Where an order for
the sale of immovable property has been made, if the judgment-
debtor can satisfy the Court that there is reason to believe that
the amount of the decree may be raised by the mortgage or lease
or private sale of such property, or some part thereof, or of any
other immovable property of the judgment-debtor, the Court may,
on his application, postpone the sale of the property comprised in
the order for sale on such terms and for such period as it thinks
proper, to enable him to raise the amount.
(2) In such case the Court shall grant a certificate to the
judgment-debtor authorizing him within a period to be mentioned
therein, and notwithstanding anything contained in Section 64,
to make the proposed mortgage, lease or sale :
Provided that all moneys payable under such mortgage, lease or
sale shall be paid, not to the judgment-debtor, but, save in so far
as a decree-holder is entitled to set-off such money under the
provisions of Rule 72, into Court :
Provided also that not mortgage, lease or sale under this Rule
shall become absolute until it has been confirmed by the Court.
(3) Nothing in this Rule shall be deemed to apply to a sale of
property directed to be sole in execution of a decree for sale in
enforcement of a mortgage of, or charge on, such property.
Deposit by purchaser and re-sale on default (Order 21 Rule
84) — (1) On every sale of immovable property the person
Page 382 of 401
declared to be the purchaser shall pay immediately after such

declaration a deposit of twenty-five per cent. on the amount of his
purchase-money to the officer or other person conducting the
sale, and in default of such deposit, the property shall forthwith
be re-sold.
(2) Where the decree-holder is the purchaser and is entitled to
set-off the purchase-money under Rule 72, the Court may
dispense with the requirements of this Rule.
Application to set aside sale on deposit (Order 21 Rule 89)—
(1) Where immovable property has been sold in execution of a
decree, any person claiming an interest in the property sold at
the time of the sale or at the time of making the application, or
acting for or in the interest of such person, may apply to have the
sale set aside on his depositing in Court,—
(a) for payment to the purchaser, a sum equal to five per cent. of
the purchase-money, and
(b) for payment, to the decree-holder, the amount specified in the
proclamation of sale as that for the recovery of which the sale
was ordered, less any amount which may, since the date of such
proclamation of sale, have been received by the decree-holder.
(2) Where a person applies under Rule 90 to set aside the sale of
his immovable property, he shall not, unless he withdraws his
application, be entitled to make or prosecute an application
under this Rule.
(3) Nothing in this Rule shall relieve the judgment-debtor from
any liability he may be under in respect of costs and interest not
covered by the proclamation of sale.
Page 383 of 401

Scope : Limitation for filing application - Limitation for filing

application under Rule 89 for setting aside the sale is prescribed
under Article 127 of Limitation Act, 1963 and therefore, any
application under Rule 89 filed after 60 days will be barred and is
not maintainable. Provisions of Section 5 of Limitation Act have
been expressly excluded and are not application. Mohan Lal V.
Hari Prasad Yadav & Ors., 1994 (4) SCC 177.
Application to set aside sale on ground of irregularity or
fraud (Order 21 Rule 90) — (1) Where any immovable property
has been sold in execution of a decree, the decree-holder, or the
purchaser, or any other person entitled to share in a rateable
distribution of assets, or whose interests are affected by the sale,
may apply to the Court to set aside the sale on the ground of a
material irregularity or fraud in publishing or conducting it.
(2) No sale shall be set aside on the ground of irregularity or
fraud in publishing or conducting it unless, upon the facts
proved, the Court is satisfied that the applicant has sustained
substantial injury by reason of such irregularity or fraud.
(3) No application to set aside a sale under this Rule shall be
entertained upon any ground which the applicant could have
taken on or before the date on which the proclamation of sale
was drawn up.
Explanation.—The mere absence of, or defect in, attachment of
the property sold shall not, by itself,
be a ground for setting aside a sale under this Rule.
Application by purchaser to set aside sale on ground of
judgment-debtor having no saleable interest(Order 21 Rule
91)—The purchaser at any such sale in execution of a decree
Page 384 of 401

may apply to the Court to set aside the sale, on the ground that
the judgment-debtor had no saleable interest in the property
sold.
Sale when to become absolute or be set aside (Order 21 Rule
92)—(1) Where no application is made under Rule 89, Rule 90 or
Rule 91, or where such application is made and disallowed, the
Court shall make an order confirming the sale, and thereupon
the sale shall become absolute:
Provided that, where any property is sold in execution of a decree
pending the final disposal of any claim to, or any objection to the
attachment of, such property, the Court shall not confirm such
sale until the final disposal of such claim or objection.
(2) Where such application is made and allowed, and where, in
the case of an application under Rule 89, the deposit required by
that Rule is made within sixty days from the date of sale, or in
cases where the amount deposited under Rule 89 is found to be
deficient owing to any clerical or arithmetical mistake on the part
of the depositor and such deficiency has been made good within
such time as may be fixed by the Court, the Court shall make an
order setting aside the sale:
Provided that no order shall be made unless notice of the
application has been given to all persons affected thereby.
Provided further that the deposit under this sub-Rule may be
made within sixty days in all such cases where the period of
thirty days, within which the deposit had to be made, has not
expired before the commencement of the Code of Civil Procedure
(Amendment) Act, 2002.
Page 385 of 401

(3) No suit to set aside an order made under this Rule shall be
brought by any person against whom such order is made.
(4) Where a third party challenges the judgment-debtor‘s title by
filing a suit against the auction-purchaser, the decree-holder and
the judgment-debtor shall be necessary parties to the suit.
(5) If the suit referred to in sub-Rule (4) is decreed, the Court
shall direct the decree-holder to refund the money to the auction-
purchaser, and where such an order is passed the execution
proceeding in which the sale had been held shall, unless the
Court otherwise directs, be revived at the stage at which the sale
was ordered.
Return of purchase-money in certain cases(Order 21 Rule
93)—Where a sale of immovable property is set aside under Rule
92, the purchaser shall be entitled to an order for repayment of
his purchase-money, with or without interest as the Court may
direct, against any person to whom it has been paid.
Certificate to purchaser (Order 21 Rule 94)—Where a sale of
immovable property has become absolute, the Court shall grant a
certificate specifying the property sold and the name of the
person who at the time of sale is declared to be the purchaser.
Such certificate shall bear date the day on which the sale became
absolute.
Delivery of property in occupancy of judgment-debtor (Order
21 Rule 95)—Where the immovable property sold is in the
occupancy of the judgment-debtor or of some person on his
behalf or of some person claiming under a title created by the
judgment-debtor subsequently to the attachment of such
property and a certificate in respect thereof has been granted
Page 386 of 401

under Rule 94, the Court shall, on the application of the

purchaser, order delivery to be made by putting such purchaser
or any person whom he may appoint to receive delivery on his
behalf in possession of the property, and, if need be, by removing
any person who refuses to vacate the same.
Delivery of property in occupancy of tenant (Order 21 Rule
96).—Where the property sold is in the occupancy of a tenant or
other person entitled to occupy the same and a certificate in
respect thereof has been granted under Rule 94, the Court shall,
on the application of the purchaser, order delivery to be made by
affixing a copy of the certificate of sale in some conspicuous place
on the property, and proclaiming to the occupant by beat of drum
or other customary mode, at some convenient place, that the
interest of the judgment-debtor has been transferred to the
purchaser.
Go to Index
Page 387 of 401

(IV) Adjudication of the claims and objections between
the parties to the suit (Sec.47 of C.P.C.)

Questions to be determined by the Court executing decree
(Section 47) — (1) All questions arising between the parties to
the suit in which the decree was passed, or their representatives,
and relating to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing the decree
and not by a separate suit.(3) Where a question arises as to
whether any person is or is not the representative of a party,
such question shall, for the purposes of this Section, be
determined by the Court.
Explanation 1 — For the purposes of this Section, a plaintiff
whose suit has been dismissed and a defendant against whom a
suit has been dismissed are parties to the suit.
Explanation II — (a) For the purposes of this Section, a purchaser
of property at a sale in execution of a decree shall be deemed to
be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such
property to such purchaser or his representative shall be deemed
to be questions relating to the execution, discharge or
satisfaction of the decree within the meaning of this Section.
Scope -Rule 114(a) of JCCR Provided that - A preliminary
hearing of petition filed u/s 47 of C.P.C., in Execution Proceeding
shall be made before admission and registering the same as Misc.
Case.
Scope- Execution cannot be allowed to be challenged on the
ground of lack of jurisdiction, when the judgment is sought to be
enforced on the ground that the judgment was based on wrong
Page 388 of 401

conclusion or wrong application of law. The settled legal position

is that the executing Court can go behind a decree only if there
was lack of inherent jurisdiction, K.P. Antony ―Santhosh‖,
Edakkad Amsom, Puthiyangadi, Calicut v. Thandiyode Plantation
(Private) Limited, Thandiyode, South Wynad and Ors., AIR 1996
Ker. 37.
Refusal to execute on ground of nullity of decree - Under
Section 47 of the Code, all questions arising between the parties
to the suit in which the decree was passed or their
representatives relating to the execution, discharge or
satisfaction of decree have got to be determined by the Court
executing the decree and not by a separate suit. The powers of
the Court under Section 47 are quite different and much
narrower than its powers of appeal, revision or review. The
exercise of powers under Section 47 of the Code is microscopic
and lies in a very narrow inspection hole. Thus, it is plain that
the executing Court can allow objection under Section 47 of the
Code to the executability of the decree if it is found that the same
is void ab initio and a nullity, apart from the ground that decree
is not capable of execution under law either because the same
was passed in ignorance of such a provision of law or the law was
promulgated making a decree inexecutable after its passing.
Government of Orissa v. Ashok Transport Agency, 2002 (9) SCC
28.
Power of executing court to correct its own mistake- An
executing Court has power to correct its own mistake in any
order made by it under Sections 151, 152 and 153. Kariyanna v.
Page 389 of 401

Ishuri Subbeiah Setty, A.I.R. 1981 Kant. 234: (1981) 1 Kant. L.J.
63.
Where certain property was not covered under the decree but
was wrongly delivered in the execution and application filed by
JD for resumption of the said property, held the application was
maintainable. Gopalkrishan Kammath v. R. Bhaskar Rao, AIR
1989 Ker. 251
Go to Index
Page 390 of 401

(V) Resistance to delivery of possession (Order 21

Rule 97 to 106)
Resistance or obstruction to possession of immovable
property. (Order 21 Rule 97).—(1) Where the holder of a decree
for the possession of immovable property or the purchaser of any
such property sold in execution of a decree is resisted or
obstructed by any person in obtaining possession of the property,
he may make an application to the Court complaining of such
resistance or obstruction.
(2) Where any application is made under sub-Rule (1), the Court
shall proceed to adjudicate upon the application in accordance
with the provisions herein contained.
99. Dispossession by decree-holder or purchaser (Order 21
Rule 99)..—(1) Where any person other than the judgment-
debtor is dispossessed of immovable property by the holder of a
decree for the possession of such property or, where such
property has been sold in execution of a decree, by the purchaser
thereof, he may make an application to the Court complaining of
such dispossession.
(2) Where any such application is made, the Court shall proceed
to adjudicate upon the application in accordance with the
provisions herein contained.
Question to be determined. (Order 21 Rule 101).—All
questions (including questions relating to right, title or interest in
the property) arising between the parties to a proceeding on an
application under Rule 97 or Rule 99 or their representatives,
and relevant to the adjudication of the application, shall be
Page 391 of 401

determined by the Court dealing with the application and not by

a separate suit and for this purpose, the Court shall,
notwithstanding anything to the contrary contained in any other
law for the time being in force, be deemed to have jurisdiction to
decide such questions
Hearing of application (Order 21 Rule 105).—(1) The Court,
before which an application under any of the foregoing Rules of
this Order is pending, may fix a day for the hearing of the
application.
(2) Where on the day fixed or on any other day to which the
hearing may
be adjourned the applicant does not appear when the case is
called on for hearing, the Court may make an order that the
application be dismissed
(3) Where the applicant appears and the opposite party to whom
the notice has been issued by the Court does not appear, the
Court may hear the application ex parte and pass such order as
it thinks fit.
Explanation —An application referred to in sub-Rule (1) includes
a claim or objection made under Rule 58.
Orders after adjudication (Order 21 Rule 98)—(1) Upon the
determination of the questions referred to in Rule 101, the Court
shall, in accordance with such determination and subject to the
provisions of sub-Rule (2),—
(a) make an order allowing the application and directing that the
applicant be put into the possession of the property or dismissing
the application; or
Page 392 of 401

(b) pass such other order as, in the circumstances of the case, it
may deem fit.
(2) Where, upon such determination, the Court is satisfied that
the resistance or obstruction was occasioned without any just
cause by the judgment-debtor or by some other person at his
instigation or on his behalf, or by any transferee, where such
transfer was made during the pendency of the suit or execution
proceeding, it shall direct that the applicant be put into
possession of the property, and where the applicant is still
resisted or obstructed in obtaining possession, the Court may
also, at the instance of the applicant, order the judgment-debtor,
or any person acting at his instigation or on his behalf, to be
detained in the civil prison for a term which may extend to thirty
days.
Order to be passed upon application complaining of
dispossession (Order 21 Rule 100) —Upon the determination of
the questions referred to in Rule 101, the Court shall, in
accordance with such determination,—
(a) make an order allowing the application and directing that the
applicant be put into the possession of the property or dismissing
the application; or
(b) pass such other order as, in the circumstances of the case, it
may deem fit.
Orders to be treated as decrees (Order 21 Rule 103) —Where
any application has been adjudicated upon under Rule 98 or
Rule 100, the order made thereon shall have the same force and
be subject to the same conditions as to an appeal or otherwise as
if it were a decree.
Page 393 of 401

Rule not applicable to transferee pendente lite (Order 21

Rule 102) - Nothing in Rules 98 and 100 shall apply to
resistance or obstruction in execution of a decree for the
possession of immovable property by a person to whom the
judgement-debtor has transferred the property after the
institution of the suit in which the decree was passed or to the
dispossession of any such person.
Order 21 Rule 104 provided that - Every order made under
Rule 101 or Rule 103 shall subject to the result of any suit that
may be pending on the date of commencement of the proceeding
in which such order, is made if in such suit the party against
whom the order under Rule 101 or Rule 103 is made has sought
to establish a right which he claims to the present possession of
the property.
Scope : A conjoint reading of Order 21, Rule 97, 98, 99 and 101
projects the following picture : (1) If a decree-holder is resisted or
obstructed in execution of the decree for possession with the
result that the decree for possession could not be executed in the
normal manner by obtaining warrant for possession under Order
21, Rule 35 then the decree-holder has to move an application
under Order 21, Rule 97 for removal of such obstruction and
after hearing the decree-holder and the obstructionist the Court
can pass appropriate orders after adjudicating upon the
controversy between the parties as enjoined by Order 21, Rule
97, sub-Rule (2) read with Order 21, Rule 98. In short the
aforesaid statutory provisions of Order 21 lay down a complete
code for resolving all disputes pertaining to execution of the
decree for possession obtained by a decree-holder and whose
Page 394 of 401

attempt at executing the said decree meet with rough weather.

Once resistance is offered by a purported stranger to the decree
and which comes to be noted by the executing Court as well as
by the decree-holder the remedy available to the decree-holder
against such an obstructionist is only under Order 21, Rule 97,
sub-Rule (1) and he cannot bypass such obstruction and insist
on resistance of warrant for possession under Order 21, Rule 35
with the help of police force, as that course would amount to
bypassing and circumventing the procedure laid down under
Order 21, Rule 97 in connection with removal of obstruction of
purported strangers to the decree. Once such an obstruction is
on the record of the executing Court it is difficult to appreciate
how the executing Court can tell such obstructionist that he
must first lose possession and then only his remedy is to move
an application under Order 21, Rule 99 CPC and pray for
restoration of possession. Brahmdeo Chaudhary v. Rishikesh
Prasad Jaiswal, AIR 1997 SC 856
Third party who is resisting or obstructing the execution of
decree can also seek adjudication of his claims and rights by
making application under Rule 97 Order 21 CPC, as the
provisions are to be widely and liberally construed to enable
executing Court to adjudicate the inter se claims of decree holder
and third parties in executing proceedings to avoid prolongation
of litigation by driving parties to independent suits. Ashan Devi v.
Phulwasi Devi, AIR 2004 SC 511.
Limitation in case of two successive obstructions- What

article 129 of the Limitation Act of 1983 does is to bar the
Page 395 of 401

making of an application about the resistance or obstruction

which was made more than 30 days ago. If a second obstruction
is made, the complaint is not about the first obstruction but is
about the second obstruction and since the law allows the
decree-holder to make such an application, it cannot be said that
the provisions of Article 129 are made nugatory. Parmeswaran v.
Kumara Pillai, A.I.R. 1981 Ker. 29
What should be starting point of limitation- Each obstruction
made in execution of warrant for delivery of possession provides a
fresh cause of action for filing an application under this Rule.
Narayan and another v. Smt. Kalan Bai, (Raj H.C.) 1985
Applicability of the Rule - O.21 R.97 of CPC is applicable to
only person who is claiming independent right, title and interest
and not under the judgment-debtor. Gajanan v. Jayamma, AIR
2008 Kar.11
What is required to be shown in order to maintain an
obstruction to delivery of property is really possession of the
person so obstructing. But proof of such possession would be of
no avail unless it is further established that possession was not
obtained from or under the judgment-debtor, for if it be
otherwise, it would naturally be subject to the result of the suit.
Any transaction during pendency of the suit would be hit by the
Rule of lis pendens and therefore possession of person
obstructing, based upon his coming into possession pendenti lite,
would of course be not sufficient. That is why what has to be
shown is independent possession. Raghavan Nair v.
Bhagyalakshmi Amma, A.I.R. 1972 Ker. 125
Page 396 of 401

The petitioner company which came in possession of schedule

premises by virtue of rent deed executed by judgment-debtors
long after initiation of execution proceedings would have no locus
standi to resist delivery of possession to decree holders in view of
O. 21, R. 102 of Civil P.C. Profit Shoe Company Pvt. Ltd v. M.
Krishna Reddy, AIR 2010 A.P. 163.
Application of res judicata - Essential conditions are that the
previous order must be between the two parties and the matter
should be heard and decided by the Court. Execution application
of decree for possession filed against sub-tenant, was dismissed
on the ground that he was not party to the suit in which decree
was passed. Subsequent application for execution of the decree
against the tenant, will not be barred. Neither the suit filed under
Rule 103 against the tenant and sub-tenant for setting aside the
trial Court‘s order dismissing the subsequent petition will be
barred by the principles of res judicata. Amena Amma (dead)
through L.Rs. & Ors. v. Sundaram Pillai & Ors., 1994(1) SCC 743
Sub-Rule (1) of Rule 105 speaks clearly of applications ―under
any of the foregoing Rules‖, i.e., Rule 1 to Rule 104 of Order 21.
The Civil Rules of Practice which regulates the procedure and
practice of subordinate Civil Courts in the State gives an
inclusive definition for the word ―application‖ which takes in
execution petitions, execution applications, cheque
applications and interlocutory applications, whether oral or
written. Rule 105 deals with the hearing of applications which
can either be the main execution petition or an execution
application. The Rule says that if the opposite party who has
been issued with notice fails to appear, the Court shall hear the
Page 397 of 401

application ex parte and proceed to pass any order deemed fit.

These orders can be orders finally disposing of the execution
petition or orders deciding any specific issue, say, regarding the
executability of the decree which is often decided on the basis of
objections filed by judgment-debtors in response to notice under
Rule 22 or the liability for arrest often decided pursuant to notice
under Rule 37 or even settlement of draft proclamation decided
in response to notice under Rule 66. Rule 106(1) of Order 21
contemplates cancellation of all types of ex parte orders passed
under Rule 105(3) and orders for default passed under Rule
105(2). C. L. Cleetus v. South Indian Bank Ltd., AIR 2007 Kerala
301.
Limitation - A bare perusal of sub-Rule (3) of Rule 106 will
clearly go to show that when an application is dismissed for
default in terms of Rule 105, the starting period of limitation for
filing of a restoration application would be the date of the order
and not the knowledge there about. As the applicant is
represented in the proceeding through his Advocate, his
knowledge of the order is presumed. The starting point of
limitation being knowledge about the disposal of the execution
petition would arise only in a case where an ex- parte order was
passed and that too without proper notice upon the judgment
debtor and not otherwise. Thus, if an order has been passed
dismissing an application for default, the application for
restoration thereof must be filed only within a period of thirty
days from the date of the said order and not thereafter. In that
view of the matter, the date when the decree holder acquired the
knowledge of the order of dismissal of the execution petition was,
Page 398 of 401

therefore, wholly irrelevant. Damodaran Pillai v. South Indian

Bank Ltd., AIR 2005 SC 3460
Some important limitation in execution proceedings
1 For execution of any decree 12 years from the date Article 136
other than mandatory and of decree Or Order Limitation
perpetual injunction becoming enforceable Act
2 For the enforcement of a 3 years from the date Article 135
decree granting a mandatory of decree or date fixed Limitation
Injunction under Order 21 for performance Act
Rule 32 r/w 35 CPC
3 For execution of decree No time limit Article 136
granting perpetual injunction prescribed. Proviso
4 To record an adjustment or 30 days : when the Article 125
satisfaction of a decree under payment or adjustment Limitation
Order 21 Rule 2 CPC is made Act
5 Time for sale For immovable (Order 21
property after expiry of Rule 68
15 days from the date CPC)
on which the copy of
proclamation is affixed
on Court notice board.
For movables property
it is 7 days.
6 Time limit for deposit of 1/4 Immediately after Order 21
the sale proceeds- declaration of sale. If Rule 84
DECREE HOLDER is
the purchaser may be
dispensed with.
7 Time limit for deposit of 3⁄4 15 days from the date Order 21
th sale proceeds and S.C. of sale Rule 85
Charges (Rule 85) or amount
required for stamps
8 To set aside sale in execution The deposit required by Order 21
of decree the rule is made within Rule 89
60 days from the date
of sale
9 For delivery of possession by One year from the date Article 134
a purchaser of immovable of confirmation of Sale Limitation
property at a sale in Act
execution of decree
10 For removal of resistance or 30 days from the date Article 129
Page 399 of 401

obstruction to delivery under of resistance or Limitation

Order 21 Rule 97 CPC obstruction. Act
11 For possession by one 30 days from the date Article 128
dispossessed of immovable of dispossession Limitation
property Act
12 Detention of Person - for a period not Sec - 58 of
(a) where the decree is for exceeding three C.P.C.
the payment of a sum of months, and,]
money exceeding five
thousand rupees
(b) where the decree is for for a period not Sec - 58 of

the payment of a sum of exceeding six weeks. C.P.C.
money exceeding two
thousand rupees, but not
exceeding five thousand
rupees,
(c) Where the total amount of No order for detention Sec. – 58 of

the decree does not exceed of the judgment debtor CPC
two thousand rupees shall be made.
Compiled By : Rajesh Sharan Singh,

Addition Director,
Judicial Academy Jharkhand, Ranchi
With
Biresh Kumar
Additional Director,
Judicial Academy Jharkhand, Ranchi
Go to Index
Page 400 of 401

Page 401 of 401

Civil Trial 2020 Ebook

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Civil Trial 2020 Ebook

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JUDICIAL ACADEMY JHARKHAND

4. Substitution of Legal Representatives : 251

e-HAND BOOK OF CIVIL TRIAL

(1) Plaint is in proper form as per Order 7 Rule 1 of Civil

 If the suit is by or against a minor or a person under

(1) – JURISDICTION OF THE Court

has the right to hear a particular case. Further, the jurisdiction is

adequate and satisfactory alternative remedy to a party aggrieved

General principles -From various decisions of the Hon‘ble

e. Every Court has inherent power to decide the question of its

CASES IN WHICH JURISDICTION OF CIVIL COURTS OF

6. In case of simultaneous proceedings under an Act and the

2.Geographical boundaries of a Court

Every suit shall be instituted in the Court of the lowest grade

Suits to be instituted where subject-matter situate (Sect.16) -

instituted in any Court within the local limits of whose

established principle that actions against res or property should

that property is not maintainable, Sukhdev Singh & Anr. v.

resides, or carries on business, or personally works for gain,

instance at the earliest possible opportunity and in all cases

Distinction between a decree passed by a Court having no

(2) FORMAT OF PLAINT-

each of the defendant, if known to the plaintiff, shall be

case. The person verifying shall specify, by reference to the

II- Documents required along-with the plaint-(Order

(3) Parties to the suit-

the three mortgagee is maintainable--- Shukar Hanan Mutawali v.

The Court has power to consolidate suits in appropriate cases.

preferred by the victims arising of the same accident, then

The plaintiff is dominus litus having domain in his suit. He has a

confirmation of possession of immovable property of a member of

plaintiff's expense, notice to all persons so interested in the

Order 1 Rule 8 may be invoked it is not necessary that the

ii. common grievance.

d. The proper course under Rule 8 is to obtain permission before

ii. they have the same interest,

iii. the necessary permission is obtained- the necessary

permission of the Court is mandatory

i. When a representative suit is brought under this Rule, the

permission. After the notice is served, the Court must after

(4) Mis-joinder and non-joinder.

No suit shall be defeated by reason of the misjoinder or

when the real cause of action is against the omitted parties,

Dismissal of suit on failure to implead all persons interested

(5) Valuation of suit & Proper Court fee -

Section8 Suit Valuation Act-- Court-fee value and

determinable for the computation of Court-fees and the value for

unless in respect of such document there be paid a fee of an

(a) for movable property where the subject-matter has no

engagement to Government, or which, in the absence of such

(b) of a contract of mortgage-according to the amount agreed to

unreasonable and the plaint has been demonstratively

is undervalued, and the plaintiff on being required by the Court

(XII) Court fees in partition cases: Section 7 (IV) (b)-A suit to

(6) When a suit is barred by law of limitation or any

(7) If the suit by or against minor or under disability,

notice to any guardian of such minor. Further such notice may

(8) If the suit is by or against Government, there

Notice( Section 80)—Save as otherwise provided in sub-Section

(b) in the case of a suit against the Central Government where it

had been delivered or left at the office of the appropriate

controversy. Similar provisions also exist in various other

nominate, within a period of three months, an officer who shall

statement and lead evidence on re-presentation of suit. Re-

Scope – It is interesting to note that there are two consequences

When the Court rejects plaint recording of reasons for, is

Rejection of plaint under Rule 11 does not preclude the plaintiffs

be rejected. For, in that case, the entertaining of the suit would

was held that a defect of misjoinder of parties and causes of

10.While considering an application under Order VII Rule

2. Court Fee Paid

3. Within the Jurisdiction of the Court

4. That the Plaint is in proper form ( Detailed in O7 Rule1)

Procedure on admitting plaint (Order 7 Rule 9)- Where the

Question: What is the upper time limit for filing of requisites?

the suit, or(c) by a pleader accompanied by some person able to