Bar of Suits under Section 9 CPC, Limitation Act, Order 2 Rule 2 & Order 9 Rule 9 1. Section 9 CPC — Courts to Try All Civil Suits Unless Barred Text of 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. Principle This provision is based on the maxim Ubi jus ibi remedium — where there is a right, there is a remedy. Every civil suit is maintainable unless barred by law. If any law creates rights and liabilities but does not provide a remedy, an aggrieved person can approach the civil court for enforcement. Absence of a mechanism to enforce rights renders them meaningless. The word shall in Section 9 makes it mandatory for courts to exercise jurisdiction when conditions are fulfilled. Key Case Laws: • Shiv Kumar v. Municipal Corporation, Delhi (1993 SC) — Every right has a remedy; civil court jurisdiction is presumed unless barred. • Bhatia Co-operative Housing Society Ltd. v. D.C. Patel (1953 SC) — Civil court has inherent power to decide the question of its own jurisdiction. Burden to prove lack of jurisdiction lies on the defendant. Burden of Proof and Presumption • Presumption: Court presumes it has jurisdiction. • Burden: Lies on the defendant to prove lack of jurisdiction. • Authority: The same court decides on its own jurisdiction. Example: A sues B in Delhi for recovery of ₹5 lakh. B claims the contract was made and to be performed in Mumbai. A need not prove jurisdiction; B must disprove it. 1.1 Civil Suit vs. Suit of Civil Nature • Civil Suit: Private legal rights are violated — e.g., property, contract, rights, status. • Civil Nature: Wider scope; includes matters with religious/social elements if legal rights are involved. Types: 1. Pure Civil Suit — Only legal rights involved. Example: Recovery of debt under contract. 2. Civil Nature with Religious/Social Elements — Legal right involved despite religious context. Example: Removal from salaried Imam post without notice. 3. Not a Civil Suit — No legal right involved, purely religious or social issue. Example: Expulsion from caste without affecting any legal right. Illustrative Case: Ayodhya Case (M. Siddiq v. Mahant Suresh Das, 2019) — Though religious issues were present, the core dispute was ownership/possession of property, making it a suit of civil nature. 1.2 Suits Expressly or Impliedly Barred • Expressly Barred: Clear statutory provision excluding civil court jurisdiction. Example: Section 293 of Income Tax Act; special tribunals for revenue, rent, elections, etc. • Impliedly Barred: Not expressly excluded, but barred by implication due to special remedies/public policy. Example: Land Acquisition Act is a complete code — jurisdiction impliedly barred (Laxmi Chand v. Gram Panchayat). Dhulabhai Test (1969 SC): Laid down guidelines to determine when civil jurisdiction is excluded, including adequacy of statutory remedies, violation of mandatory provisions, and fraud. 2. Bar under the Limitation Act 2.1 Concept The Limitation Act, 1963 fixes time limits for filing suits, appeals, and applications. Filing after the prescribed period bars the remedy, though the substantive right may survive (except in property possession cases under Section 27). Maxims: • Interest republicae ut sit finis litium — It is in the State’s interest to end litigation. • Vigilantibus non dormientibus jura subveniunt — Law assists the vigilant, not those who sleep over rights. Key Points: • Bars remedy only, not the right (except Sec. 27). • Criminal proceedings generally not subject to limitation unless expressly provided. • Writ petitions under Arts. 32 and 226 not covered by Limitation Act. Section 3: Court must dismiss cases filed beyond limitation even if not pleaded by the defendant. Section 4: If limitation expires on a holiday, filing can be done on reopening. Section 5: Allows condonation of delay in appeals/applications (not suits) if sufficient cause is shown. 2.2 Exclusion of Time (Secs. 12–15) Certain periods are excluded when computing limitation — e.g., obtaining certified copies, filing in wrong court in good faith, stay orders, defendant abroad, government consent time, etc. 2.3 Postponement of Limitation (Secs. 16–23) Start of limitation delayed due to: • Minority/insanity of parties • Fraud/mistake • Written acknowledgment or part-payment • Continuing breach/tort • Addition of new parties • Special damage cases 3. Bar under Order 2 Rule 2 CPC Principle A plaintiff must include the whole claim arising from one cause of action in one suit. If part of the claim is omitted intentionally without court’s leave, a second suit for that part is barred. Key Cases: • Gurbux Singh v. Bhooralal (1964 SC) — Provision is penal; should be strictly construed. • Kewal Singh v. Lajwanti (1980 SC) — Three tests for applicability: 1. Is the cause of action identical? 2. Could the relief have been claimed in the previous suit? 3. Was the relief omitted without leave? • Arjun Lal v. Mriganka Mohan (1975 SC) — Rule applies only to same cause of action, not distinct ones. Object: Prevent splitting of claims and multiplicity of suits. 4. Bar under Order 9 Rule 9 CPC When a suit is dismissed for default of plaintiff’s appearance (O. 9 R. 8), and no restoration is sought or restoration fails, a fresh suit on the same cause of action is barred. Key Points: • Plaintiff may seek restoration by showing sufficient cause. • If cause is proved, reopening is mandatory (Raman v. Arunachalam, 1936). • Bar applies to the same cause of action even if the defendant changes (e.g., legal heirs). Illustration: A sues B for possession, suit dismissed for default. B dies, his widow C occupies. A sues C for same possession — barred under O. 9 R. 9 as cause of action is the same. Conclusion The CPC and Limitation Act together ensure that: • Civil courts hear all disputes involving legal rights unless barred. • Time limits are respected to prevent stale claims. • Plaintiffs cannot split claims (O. 2…
Category: Code of Civil Procedure(CPC)
Introduction, Filing, and Essentials of a Suit under CPC Introduction In Indian law, legislation is broadly divided into two categories: 1. Substantive Law – Determines the rights and liabilities of parties. • Examples: Indian Contract Act, Transfer of Property Act, Law of Torts, Bharatiya Nyaya Sanhita (BNS). 2. Adjective or Procedural Law – Prescribes the procedure and machinery for enforcing those rights and liabilities. • Examples: Bharatiya Sakshya Adhiniyam (BSA), Limitation Act, Code of Civil Procedure (CPC), Bharatiya Nagarik Suraksha Sanhita (BNSS). Maxim: Ubi jus ibi remedium – “Where there is a right, there is a remedy.” Application in Indian Law • Substantive law creates legal rights. • Remedies for violation include compensation or injunction. • Procedural law (like CPC) provides the mechanism to enforce these rights. • CPC itself does not create rights but offers the forum and procedure to claim them. Case Reference: Ghanshyam Dass v. Dominion of India (AIR 1984 SC 1004) – Procedural law breathes life into substantive rights. Role and Scope of the CPC • Enacted: 21 March 1908 • Commencement: 1 January 1909 • First CPC: 1859, revised in 1861, 1877, 1879, and 1882. • Extent: Applies to the whole of India except Nagaland and tribal areas. CPC’s Complementary Role: Where substantive law grants rights, CPC provides the procedure to enforce them. The maxim ubi jus ibi remedium becomes meaningful only with an effective procedure. Scope: • CPC is exhaustive in matters it covers. • Where silent, courts use inherent powers under Section 151 CPC to ensure justice. • Case Reference: Manohar Lal Chopra v. Seth Hiralal (1962) – Courts can act to meet the ends of justice when the Code is silent. Object and Structure of the CPC Object:To consolidate and amend the laws relating to the procedure of civil courts. Scheme of the Code: • Body: 158 sections – general principles. • Schedule 1: 51 Orders & Rules – detailed procedures. • Longest Order: Order 21 with 106 rules. Amendments: • 1976, 1999, 2002, and 2015 – to keep the law in line with social and technological changes. Important Stages of a Civil Suit 1. Presentation of plaint 2. Service of summons 3. Appearance of parties 4. Ex-parte decree 5. Interlocutory proceedings 6. Filing of written statement 7. Production of documents 8. Examination of parties 9. Discovery and inspection 10. Admission 11. Framing of issues 12. Summoning witnesses 13. Hearing & examination 14. Arguments 15. Judgment 16. Preparation of decree 17. Appeal, review, revision 18. Execution of decree Procedure Before Filing a Suit Before filing, check: 1. If the case is of civil nature (Sec. 9 CPC). 2. Res sub judice – Whether a similar case is pending (Sec. 10 CPC). 3. Res judicata – Whether already decided (Sec. 11 CPC). 4. Limitation – Whether within the time limit. 5. Order 2 Rule 2 CPC – Relief not claimed earlier. 6. Order 9 Rule 9 CPC – Bar against re-filing dismissed suit. Filing Procedure of a Suit Documents Required: 1. Case Information Format (Index) 2. Memo of Parties 3. Plaint 4. Affidavit in Support of Plaint 5. Interim Applications (if any) 6. Affidavit in Support of Application 7. Address Form 8. List of Documents with annexures 9. Vakalatnama (if through advocate) 10. Second Set of Plaint for service on opposite party ∆ Below are the pictures of documents used while filling a plaint Essentials of a Suit As per Section 26 CPC, a suit is instituted by presentation of a plaint. 1. Cause of Action A combination of a legal right + its violation. • Without cause of action → plaint rejected under Order 7 Rule 11 CPC. • Burden of proof lies on the plaintiff. Example: • Loan not repaid or breach of contract → Cause of action arises when the right is violated. 2. Subject Matter of Suit The actual thing or right in dispute. • Proprietary (property-related) • Personal (personal rights like contract, divorce, defamation). 3. Parties to a Suit a. Joinder of Plaintiffs (Order 1 Rule 1) – Multiple plaintiffs allowed if: 1. Same act/transaction, and 2. Common question of law/fact. b. Joinder of Defendants (Order 1 Rule 3) – Multiple defendants allowed if: 1. Right to relief arises from same act, and 2. Common question of law/fact. c. Necessary and Proper Parties: • Necessary Party – Without whom no effective decree can be passed. • Proper Party – Not essential but aids in complete adjudication. d. Pro Forma Defendant: Added formally without claiming relief against them but necessary for proper decision. 4. Relief The remedy claimed in the suit (damages, injunction, specific performance). Affidavit with Pleadings – Mandatory Section 26 CPC mandates that facts in plaint must be proved by affidavit. Case Reference: Salem Advocates Bar Association v. Union of India (2005) – Affidavits prevent false claims, save judicial time, and ensure responsibility. Conclusion The CPC is the backbone of civil justice in India, ensuring that substantive rights are not mere paper declarations but can be effectively enforced. Understanding introduction, filing, and essentials of a suit is crucial for law students, advocates, and judiciary aspirants to navigate civil litigation effectively. ✓ To start your preparation for Judicial Services Examination at home, drop a message on WhatsApp +91 8840961324 or call us on +91 9151591324 At Theory of Abrogation, we equip you with everything you need: •Subject-wise expert classes •Mock test series •Legal current affairs •Personalized mentorship for interview preparation “Your law degree is your foundation, but your preparation is what will build your success.” Join Our New Batch Now! Prepare smart. Prepare with Theory of Abrogation. 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Most Important Questions of Code of Civil Procedure, 1908 for Mains Judiciary 1. Define the followings: a. Decree-holder b. Legal representative c. Judgement-debtor d. Mesne profits e. Public officer 2. How will you introduce CPC to a new law student? 3. What do you understand by the pecuniary jurisdiction of a court? Will a court be competent to hear a suit exceeding , limits if the parties to the suit have given their consent? 4. Define decree. And which orders are not included in the definition of decree. Are the following orders are decree: a. an order dismissing a suit in default b. an order imposing cost c. an order rejecting the plaint 5. Distinguish between a. Decree and order b. Preliminary decree and final decree c. Illegal decree and void decree d. Decree and judgement e. Judgement and order 6. What is preliminary decree and in what cases such decree is passed? Can two preliminary decree be passed in a suit? Can two final decrees be passed in one suit? 7. What do you understand by a ‘suit of a civil nature? 8. What is meant by jurisdiction of a civil court? 9. How will you decide that a suit is of a civil nature? Are the following suits of civil nature: (i) Right to take out religious procession. (ii) Right to franchise (iii) Right of Pardanasheen lady to observe Parda (iv) Contribution of fund for holding festival. (v) The right of priest to worship in the temple. (vi) Expulsion of a member from his caste. (vii) Suits for specific relief (viii) Suits for dissolution of partnership 10. What is res judicata? Discuss the conditions necessary for its application in legal proceedings. Whether the principle of res judicata applies between two stages in the same litigation? Whether the provisions contained in the code of civil procedure are exhaustive ? Whether the principle of res judicata applies to execution proceedings? When a judgement operates as res judicata between co-defendants? 11. Write the differences between the followings: •res judicata and estopple, •res judicata and res subjudice, •res judicata and constructive res judicata 12. What do you understand by the principle of ‘conclusiveness of judgement is a rule of estoppel’? 13. What is doctrine of res sub judice as provided in section 10 of Code of Civil Procedure ? When can this doctrine be applied ? 14. A litigant filed a complaint before the Bar Council of Delhi against his advocate alleging negligence. This complaint was dismissed. Aggrieved against dismissal order of State Bar Council, A filed revision before Bar Council of India. This revision was also dismissed on merits by speaking order. Subsequently, A filed a civil suit for damages based on negligence of B. If decision of Bar Council of India will operate as resjudicata in this suit? Discuss the law and decide with reasons. (DJS 2006) 15. B and ‘S’ were defendants in a suit filed on the original side of the High Court for recovery of possession of the suit property. The suit was dismissed by the Single Judge and the Plaintiff carried an appeal to a Division Bench. In the appeal, both ‘B’ and ‘S were respondents. The Division Bench allowed the appeal. AS respondents before the Division Bench, both B’ and “S’ were aggrieved by the decree against them. “B1, the present Appellant, filed an SLP and thereafter ‘S’ also filed an SLP. Both in the matter of filing the SLP and granting of leave, ‘B’s appeal was prior. The appeal filed by ‘S was dismissed for default for non-removal of office objections.It was contended by the Respondent-plaintiffs before theSupreme Court that inasmuch as the appeal filed by ‘S’ was dismissed by the Supreme Court for non-prosecution, thejudgment of the Division Bench of the High Court would operate as res judicata. It was urged that the judgment and decree had become final against ‘B and all other defendants in the original suit. It was further contended that even otherwise the appeal should be dismissed as it may result In conflicting decrees. That is, if the present appeal’ were allowed, resulting in setting aside the decree or making any modification thereof,It would result in the anomalous situation of there being conflicting decrees between the same parties, arising out of the same cause of action.Whether the plea of the Respondent-plaintitts that principles of res judicata will apply to bar the appeal as not tenable?(DJS 2007) 16. The legislature and judiciary have taken several steps to reduce multiplicity of suits and harassment of defendants again and again under Civil Procedure Code, 1908. Discuss the above statement with reference to sections 10, 11, 12 and Order 2 rule 2 of the Civil Procedure Code, 1980. 17. What is a foreign judgement under what circumstances is it conclusive when and how a decree of any foreign court can be executed in India ? 18. Enumerate the provisions by which place of Suing is determined under CPC. And discuss those provisions of Civil Procedure Code which are applied in determination of forum for filing a suit relating to immovable property. 19. ‘A’ is a tradesman in Calcutta. ‘B’ carries on business in Delhi. ‘B’ by his agent in Calcutta, buys goods of ‘A’ and request ‘A’ to deliver them to the railway. ‘A’ delivers the goods accordingly in Calcutta. At what place ‘A’ can sue ‘B’ for the price of the goods? (RJS 1986) 20. Under what conditions, the objection as to the place of suing can be allowed by any appellate or revisional court? 21. A supplied goods at Mumbai to a company having its principal office at Mumbai and branch offices throughout the country, including Delhi. Since B failed to pay the price of the goods, A filed a suit in Delhi, for recovery of price of goods, on the ground that B was also carrying on business at Delhi and therefore Delhi Court also had jurisdiction to try the suit. Decide. (DJS 2005) 22. A resides at Shimla….
Execution under the Code of Civil Procedure (CPC), 1908
Introduction The term execution refers to the process of enforcing or giving effect to a court decree or order. Once a decree is passed, it becomes the duty of the court to ensure compliance. Execution is the final stage in a civil suit where the rights determined by the court are actually realised by the successful party. The law relating to execution is primarily contained in Section 36 to 74 and Order XXI of the CPC, 1908. Meaning of Execution Execution is the legal process by which a decree-holder compels the judgment-debtor to carry out the mandate of the decree or order. It can involve: Delivery of property Recovery of money Possession of immovable property Specific performance or injunction Who May Apply for Execution As per Section 37 and 146 CPC, execution may be applied by: The decree-holder The legal representative of the decree-holder A person claiming under the decree-holder Against Whom Execution May Be Sought Execution may be enforced against: The judgment-debtor The legal representatives of the judgment-debtor Any person bound by the decree Courts Competent to Execute Decrees According to Section 38, execution can be done by: The court which passed the decree, or The court to which the decree is transferred for execution In case of transfer, the receiving court has the same powers as the original court (Section 39). Modes of Execution (Order XXI Rules) Mode Description Delivery of property Movable or immovable property delivered to decree-holder Attachment and sale of property Judgment-debtor’s property is attached and sold to satisfy the decree Arrest and detention Judgment-debtor may be arrested and detained in civil prison Appointment of receiver Court may appoint a receiver to manage and realise property Partition or injunction execution Special execution modes for partition or specific relief decrees Conditions for Execution Application for execution must be filed under Order XXI Rule 10 It must contain: Details of the decree Relief sought Mode of execution requested Limitation: As per Article 136 of the Limitation Act, execution must be filed within 12 years from the date the decree becomes enforceable. Stay of Execution A court may stay execution under Order XXI Rule 26 or Rule 29 if: An appeal is pending There is risk of irreparable harm Conditions justify temporary suspension Objections to Execution Under Order XXI Rule 58 to 106, the judgment-debtor or third party can raise objections on grounds such as: Lack of jurisdiction Property not liable to attachment Satisfaction of decree already made Procedural defects Important Case Law Topanmal Chhotelal v. Dholi Dhar (1960) Reiterated that execution must conform strictly to the terms of the decree. Hiralal v. Kalinath (1962) Held that delay in execution must be reasonably explained to avoid bar of limitation. Difference Between Execution of Decree and Execution of Order Basis Decree Execution Order Execution Definition Formal adjudication of rights Direction in the course of proceedings Governing Provisions Section 36–74, Order XXI Section 36, applicable provisions of Order XXI Nature Substantive relief Often procedural
Difference Between Decree and Order under CPC, 1908
Introduction The Code of Civil Procedure, 1908 distinguishes between two important judicial pronouncements: decrees and orders. While both are decisions of a civil court, they differ in form, content, and legal implications. These distinctions are essential for understanding the structure of civil adjudication and the remedies available to litigants. Meaning of Decree A decree is defined under Section 2(2) of the CPC as the formal expression of an adjudication that conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Decrees can be: Preliminary Final Partly preliminary and partly final Meaning of Order An order is defined under Section 2(14) of the CPC as the formal expression of any decision of a civil court which is not a decree. Orders typically arise from interlocutory applications or procedural directions given during the course of the suit. Basis of Comparison Between Decree and Order Basis Decree Order Definition Section 2(2) CPC Section 2(14) CPC Nature Conclusive determination of rights in a suit Decision on procedural or substantive matters Arises From Adjudication of a civil suit Arises from application or incident during the suit Number per Suit Only one final decree, may have preliminary decree(s) Can be multiple orders in one suit Appealability Generally appealable under Section 96 Only certain orders are appealable under Section 104 and Order XLIII Examples Judgment in a partition suit, declaration of title Granting adjournment, rejection of application for amendment Formality Must be drawn up formally May or may not be formally drawn Conclusive Nature Determines substantive rights May be procedural or interim, not always conclusive Illustrative Example A court deciding ownership of property in a title suit:This is a decree, as it determines a substantive right. A court granting a temporary injunction during the trial:This is an order, as it is an interim relief during proceedings. Importance of the Distinction Understanding the distinction is critical because: Different appeal provisions apply Execution process applies only to decrees Finality of the decision varies Legal remedies and procedural consequences are affected
Government Suits under CPC, 1908 – Section 79 to Section 82
1. Introduction The Code of Civil Procedure, 1908 lays down specific provisions for civil suits involving the government, recognizing the sovereign position of the State and the need to balance it with individual rights. These suits are governed by Sections 79 to 82 CPC. These provisions apply to both: Suits filed by the government, and Suits filed against the government or public officers. 2. Who Is the Government in a Civil Suit? As per Section 79 CPC: In a suit by or against the government: The Union of India shall be named when the Central Government is involved. The State Government shall be named when the State Government is involved. Public officers can also be sued in their official capacity, under the same provision. 3. Requirements for Filing a Suit Against the Government A. Notice Under Section 80 CPC Section 80 CPC mandates a two months’ notice before instituting any suit against the government or a public officer acting in their official capacity. Key Features: Must be in writing Must state the cause of action, relief claimed, and details of the plaintiff Sent to: The Secretary to the Government (in case of Central Government) The Collector or appropriate officer (in case of State Government) No suit can be instituted before the expiry of 2 months from the date of notice Exception (Section 80(2)): In cases of urgency, a suit may be filed without notice with the leave of the court. However, the court must be satisfied that the plaintiff would suffer irreparable harm if delayed. 4. Suits By the Government The government may institute suits like any other individual or legal entity. Procedure is the same as applicable to private suits. Government pleaders are appointed to represent the government in court. 5. Privileges of the Government in Civil Suits Privilege Explanation Extended time to respond Under Section 80(1) and Order XXVII Rule 5, the government may get 90 days to file a written statement Representation by pleader Government is represented by a Government Pleader, not a private advocate Execution of decrees Special rules apply for execution of decrees against government property Leave of court for urgent cases Even without notice, suits may proceed with court’s permission under Section 80(2) 6. Decrees Against the Government – Section 82 CPC When a civil court passes a decree against the government, the following special rule applies: No execution shall be issued until the expiration of 3 months from the date of the decree. This period allows the government time to: Evaluate its options (including filing appeals) Make necessary administrative arrangements for compliance 7. Procedure for Suits Involving the Government The procedure is governed by Order XXVII CPC, which includes: Rule Provision Rule 1–2 Who can represent the government and how Rule 5 Time for filing written statement Rule 8A Exemption of public officer from personal appearance 8. Important Case Law State of A.P. v. Pioneer Builders (2006) Reiterated that notice under Section 80 is mandatory, and failure to comply may result in dismissal of the suit. Union of India v. T.R. Varma (1957) Clarified that the government can be sued like a private party but must be given reasonable protection under the law. 9. Conclusion The CPC provides a special framework for handling civil litigation involving the government. While allowing citizens to sue the government for wrongs, it also offers procedural safeguards to ensure orderly administration. Understanding Sections 79 to 82 and Order XXVII is crucial for navigating suits involving public authorities.
Caveat under Section 148A of CPC, 1908
1. Meaning of Caveat The word “caveat” is derived from Latin, meaning “let him beware”. In legal terms, a caveat is a formal notice filed by a person to the court stating that no order should be passed in a proceeding without first giving notice to the caveator. Introduced by the Amendment Act of 1976, Section 148A CPC enables a party to protect its interest by preventing ex parte orders. 2. Legal Provision: Section 148A CPC “Where an application is expected to be made, or has been made, in a suit or proceeding instituted or about to be instituted, a person claiming a right to appear before the court may lodge a caveat.” This ensures that the caveator is heard before any interim relief is granted in favour of the applicant. 3. Who May File a Caveat? Any person who: Claims a right to be heard in a suit or proceeding, and Anticipates that the opposite party may seek an interim order The person need not be a party to the suit yet, but must show that his rights or interests are likely to be affected. 4. Object of Filing a Caveat To prevent ex parte orders To ensure the right to be heard To protect the caveator’s interest from adverse temporary reliefs To inform the court in advance about a potential objection or opposition 5. Procedure for Filing a Caveat Step Details Where to file In the court where the application is expected to be filed Content of caveat Name of parties, expected application, caveator’s interest Notice to be served Caveator must serve notice of the caveat to the applicant (Section 148A(2)) Court’s duty If application is filed later, court must serve notice to the caveator before passing any interim order (Section 148A(3)) 6. Time Limit of Caveat A caveat remains in force for 90 days from the date of filing. If no application is filed within this period, the caveat lapses. It may be renewed by filing a fresh caveat. 7. Consequences of Not Notifying Caveator If the court passes an ex parte interim order without giving notice to the caveator (after a valid caveat is filed): The order may be challenged and possibly set aside It reflects procedural unfairness The court may exercise discretion to recall the order 8. Important Case Law Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma (1996) Held that the court must serve notice to the caveator if a caveat is filed in accordance with Section 148A, and failure to do so can invalidate any ex parte order. Deepak Khosla v. Union of India (2011) Clarified that only persons with legitimate apprehension of being affected by an order can file a caveat. 9. Difference Between Caveat and Stay Basis Caveat (Section 148A) Stay Order Nature Preventive notice Temporary court order halting legal action Purpose To ensure the caveator is heard To temporarily suspend proceedings or orders Who files Likely affected party Any party seeking protection Effect Court cannot pass ex parte order Proceedings or effects are paused
Inherent Powers under CPC, 1908 – Section 151
1. Meaning of Inherent Powers Inherent powers are those powers that are not explicitly provided in the Code of Civil Procedure but are essential for the court to do complete justice and prevent abuse of its process. Recognized under Section 151 of CPC, 1908. These powers are not unlimited, but they allow the court to act in situations not covered by specific provisions of the Code, in order to ensure the ends of justice are met. 2. Legal Provision: Section 151 CPC “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” This section acts as a residual source of power, used when no express rule is available to deal with a particular situation. 3. Nature and Scope Applies only when no specific provision exists Meant to fill the gaps in procedure Cannot be used to override or contradict express provisions of the CPC Must be exercised judiciously, not arbitrarily 4. Situations Where Inherent Powers Are Invoked Circumstance Example To recall an order obtained by fraud Where judgment was obtained through false representation To stay proceedings to avoid abuse of process Filing multiple suits on the same issue To consolidate suits When two or more suits involve the same questions and parties To restore proceedings Reinstating a suit dismissed for default if no express rule applies To correct clerical mistakes If not covered under Section 152 To grant interim relief In exceptional cases not provided under Order XXXIX or other rules Limitations on Inherent Powers Cannot contradict express provisions of the CPC Cannot be used to create new rights or procedures Must be exercised only when necessary Must not prejudice the other party unfairly Difference Between Inherent and Statutory Powers Feature Inherent Powers (S. 151) Statutory Powers Source Implied, not specifically enacted Derived from specific sections/orders of CPC When Invoked When no rule exists When expressly allowed by law Scope Limited to justice or abuse prevention Broad but regulated by specific provisions
Admissions under CPC, 1908 – Sections 17 to 23 & Order XII
1. Meaning of Admission An admission is a statement made by a party to a legal proceeding which acknowledges the truth of a fact asserted by the opposite party. Admissions can significantly narrow the scope of dispute and may even lead to a judgment without trial if they are clear and unambiguous. Governed by Sections 17 to 23 of the Indian Evidence Act and Order XII of the Code of Civil Procedure, 1908. 2. Types of Admissions Type Description Judicial Admission Made in the course of a legal proceeding; binding unless withdrawn or disproved Extra-judicial Admission Made outside court; not conclusive, needs corroboration Express Admission Clearly and explicitly stated Implied Admission Arises by conduct or failure to deny allegations 3. Modes of Admission under CPC Admissions under the CPC can occur through: A. Pleadings Statements in the plaint or written statement. Facts not specifically denied are considered admitted (Order VIII Rule 5). B. Documents Any written acknowledgment submitted in court records. C. Oral Statements Statements made during the hearing or through examination. D. Notice for Admissions (Order XII Rule 2) A party may serve a notice asking the other party to admit certain facts or documents. 4. Order XII – Key Provisions Rule Provision Title Summary Rule 1 Notice of Admission Party may call upon opponent to admit facts Rule 2 Notice to Admit Documents If denied without reason, denying party may bear costs Rule 3 & 4 Form of Admission Admissions may be oral or in writing Rule 6 Judgment on Admission Court may pass judgment based on clear admissions without trial 5. Judgment on Admission (Order XII Rule 6) The court has the discretion to pronounce judgment based on admissions if: The admission is clear, unambiguous, and unconditional It is made in pleadings or otherwise (including letters, affidavits, etc.) It relates to a part or whole of the subject matter Purpose: To save time and expenses To dispose of cases where trial is unnecessary 6. Effect and Importance of Admissions Binding on the party who makes it Can dispense with the need for proof May result in partial or complete decree Cannot be withdrawn unless permitted by the court 7. Important Case Law Karam Kapahi v. Lal Chand Public Charitable Trust (2010) Held that Order XII Rule 6 empowers the court to pass judgment based on clear admissions, even outside formal pleadings. Narayan Bhagwantrao Gosavi v. Gopal Vinayak Gosavi (1960) An admission must be voluntary, clear, and unequivocal to be legally binding. 8. Difference Between Admission and Confession Basis Admission Confession Nature Applies in civil and criminal cases Applies only in criminal cases Effect May form basis of judgment in civil cases Can lead to conviction Scope Includes acknowledgment of facts or rights Only acknowledgment of guilt 9. Conclusion Admissions play a vital role in simplifying civil litigation by reducing the number of issues that need to be proved. Order XII CPC ensures that once a fact is admitted, it need not be litigated further. A clear understanding of this concept helps in efficient case preparation and may lead to early resolution of disputes through judgment based on admission.
Abatement of Suits – CPC, 1908 (Order XXII)
1. Meaning of Abatement Abatement of a suit refers to the automatic termination of a legal proceeding when a party to the suit dies and the right to sue does not survive or the legal representative is not substituted within the prescribed time. Governed by Order XXII of the Code of Civil Procedure, 1908. It applies to both plaintiffs and defendants, and to appeals as well. 2. Legal Basis and Applicability Provision Subject Order XXII Rule 1 Right to sue survives Order XXII Rule 2 No abatement if suit survives with remaining plaintiffs Order XXII Rule 3 Abatement on death of plaintiff Order XXII Rule 4 Abatement on death of defendant Order XXII Rule 9 Setting aside abatement 3. Situations Leading to Abatement A. Death of a Party If a plaintiff or defendant dies and the right to sue does not survive, the suit abates. If the right does survive, the legal representative must be brought on record within 90 days. B. Non-substitution within Time If the legal heir or representative is not substituted within 90 days, the suit abates automatically by operation of law. 4. Consequences of Abatement Situation Effect Against deceased plaintiff The entire suit may abate if right to sue does not survive Against one of multiple plaintiffs Suit may proceed with others (Rule 2) if right survives Against one of multiple defendants Suit continues against others unless defense is joint In appeal Appeal abates if appellant or respondent dies without substitution 5. Revival of Abated Suit – Rule 9 A party may apply to set aside abatement under Order XXII Rule 9 by showing: Sufficient cause for not substituting legal representatives in time The application must be filed with a delay condonation petition under Section 5 of the Limitation Act If granted, the court revives the suit from where it abated. 6. Exceptions to Abatement Right to sue survives against or in favour of other plaintiffs or defendants In case of representative suits, court must give notice to interested parties before declaring abatement (Rule 10A) Abatement does not occur if death happens after hearing is complete 7. Important Case Law Union of India v. Ram Charan (1964) Held that abatement occurs automatically after expiry of the limitation period if substitution is not made. Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) Emphasized that procedural laws like abatement must be used to aid justice, not defeat it. 8. Difference: Abatement vs Dismissal Basis Abatement Dismissal Reason Procedural lapse (death, non-substitution) Judicial decision on merits or default Effect Suit ends without decision on merits Suit ends with a legal or factual finding Revival Can be revived with sufficient cause May require appeal or new filing