Category: Code of Civil Procedure(CPC)

Order 27 and Section 79-82 under CPC

September 1, 2025 toahostinger No Comments

Suits by or Against the Government and Public Officers under CPC (Sections 79–82 & Order 27) In this Article: Learn about suits by or against the Government and public officers under CPC (Sections 79–82 read with Order 27). Explained with rules of notice under Section 80 CPC, essentials, exceptions, case laws, and judicial interpretation. Introduction The Code of Civil Procedure, 1908 (CPC) provides special provisions for suits involving the Government and public officers under Sections 79 to 82 read with Order 27. These rules ensure that the Government, being a large legal entity, gets proper representation and protection while also balancing the rights of individuals who seek justice against it. Parties to Suits (Section 79 & Order 27 Rule 3) In every suit by or against the Government: • Union of India → in cases involving the Central Government. • State → in cases involving the State Government. 👉 There is no need to mention detailed names or addresses of government departments in the plaint. Public Officer Suits (Order 27 Rule 5A): When a public officer is sued in his official capacity, the Government must also be made a party to the suit. Rule of Notice – Section 80 CPC One of the most significant provisions is Section 80 CPC, which mandates a two-month prior written notice before filing a suit against the Government or a public officer for acts done in official capacity. Object of Notice The main purpose is: 1. To allow the Government or officer to examine the claim. 2. To settle disputes outside court and avoid unnecessary litigation. Case Law: • Amar Nath v. Union of India, AIR 1960 SC 424 – Notice allows the Government to consider settlement. • Bihari Chaudhary v. State of Bihar, (1984) 2 SCC 627 – A suit filed before expiry of notice period is not maintainable. Essentials of a Valid Notice [Section 80(1)] A valid notice must include: • Name, description, and address of the claimant. • Clear statement of cause of action. • Relief(s) claimed. Exception to Notice Requirement [Section 80(2)] Notice is not mandatory when: • The suit is filed for urgent or immediate relief against the Government or a public officer. • Court’s permission (leave) is obtained before institution. However: • No ex parte relief can be granted without hearing the Government. • If urgency is not proved, the court may return the plaint for compliance with Section 80(1). Effect of Errors in Notice [Section 80(3)] A suit cannot be dismissed merely because of minor errors or defects in the notice, if: • The notice has been duly served, and • It substantially contains the plaintiff’s identity, cause of action, and relief claimed. Case Law: Y. Savarimuthu v. State of Tamil Nadu (2019) – Substantial compliance is sufficient. Does “Government” Include Semi-Government Organizations? A key question often arises: Does Section 80 CPC apply to statutory corporations or government companies? Judicial Interpretation • Kamta Prasad Singh v. Regional Manager, FCI, AIR 1974 Pat 376 – FCI is not “Government” under Section 80 CPC. • Kerala SEB v. Kurien, AIR 1989 Ker 86 – Statutory corporations may be “State” under Article 12, but not “Government” under CPC. • Hindustan Petroleum Corp. Ltd. v. A.K. Annadurai (1994) – Government-owned companies are not covered under Section 80. Conclusion: The term “Government” in Section 80 CPC strictly refers to: • The Union of India, or • A State Government. It does not extend to statutory corporations, government companies, or semi-government organizations. Conclusion The provisions under Sections 79–82 and Order 27 CPC ensure a structured framework for handling suits involving the Government and public officers. While Section 80 CPC notice is mandatory in most cases, exceptions exist for urgent matters. Judicial interpretation has clarified that statutory corporations and semi-government bodies, though considered “State” under Article 12 of the Constitution, are not “Government” under CPC. Thus, Section 80 balances the interests of individuals seeking justice and the Government’s need for administrative efficiency. 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. Contact Us: B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 +91 9971399324 | +91 8840961324 [email protected]

Code of Civil Procedure(CPC), Interview, judiciary

order 22 and 23 cpc

August 31, 2025August 31, 2025 toahostinger No Comments

Order 22 and 23 CPC: Death, Marriage, Insolvency of Parties, Withdrawal and Compromise of Suits Civil litigation is often lengthy, and during the pendency of a suit, circumstances like death, marriage, insolvency, or settlement may arise. The Code of Civil Procedure, 1908 (CPC) deals with such contingencies under Order 22 (Death, Marriage and Insolvency of Parties) and Order 23 (Withdrawal and Compromise of Suits). These provisions ensure that justice is not defeated due to changes in the status of parties or technical defects. Order 22 CPC: Death, Marriage and Insolvency of Parties Order 22 governs situations where one of the parties to a suit or appeal dies, marries, or becomes insolvent. It ensures continuity of proceedings, provided the right to sue survives. 1. Death of a Party (Rules 1–6, 9, 10A) • Rule 1: A suit does not abate if the right to sue survives. • Time Limits: • Substitution of Legal Representatives (LRs) → within 90 days (Article 120, Limitation Act). • Setting aside abatement → within 60 days (Article 121). • Delay condonation possible under Section 5, Limitation Act. Cases where the right to sue survives: • Possession suits by landlord against tenant. • Specific performance of a contract. • Partition suits. • Pre-emption suits. Cases where the right to sue does not survive: • Defamation. • Malicious prosecution. • Assault or personal injury. • Breach of promise to marry. • Contracts involving personal skill. Key Principle: 👉 Actio personalis moritur cum persona – A personal right of action dies with the person. Important Rulings: • M. Veerappa v. Evelyn Sequeira (1988 SC): If based on tort → suit abates; if partly contract → contract part survives. • Melepurath Sankunni v. Thekittil Geopalankutty (1986 SC): Defamation appeal abates if plaintiff dies, but if decree already passed, LRs can continue. 2. Marriage of Female Party (Rule 7) Marriage of a woman does not abate the suit. The decree binds her and, if applicable, her husband (with court’s permission). 3. Insolvency of Plaintiff (Rule 8) If a plaintiff becomes insolvent: • The assignee/receiver may continue the suit for creditors’ benefit. • If they refuse, the defendant may apply for dismissal. 4. Abatement (Rule 9) If substitution is not made within time → suit abates. • No fresh suit on the same cause of action is allowed. • Remedy: Apply for setting aside abatement by showing sufficient cause. 5. Determination of Legal Representative (Rule 5) The court decides who qualifies as a legal representative through summary inquiry. 6. Duty of Pleader (Rule 10A) If a pleader learns that their client has died, they must inform the court, ensuring smooth substitution. 7. Applicability of Order 22 • ✔ Applies to suits and appeals. • ❌ Does not apply to execution proceedings, writs, or revisions. Case Law: • Mithailal Dalsangar Singh v. Annabai Devram Kini (2003 SC): Abatement automatic after 90 days; revival possible on sufficient cause. Order 23 CPC: Withdrawal and Compromise of Suits Order 23 deals with situations where the plaintiff either wishes to withdraw a suit or where parties decide to compromise. 1. Withdrawal of Suit (Rule 1–2) (a) Without Court’s Permission • Plaintiff may abandon suit/claim. • Cannot file a fresh suit on the same subject matter. (b) With Court’s Permission • Allowed when: 1. Formal defect exists (e.g., wrong jurisdiction, mis-joinder, valuation error). 2. Sufficient ground exists (e.g., premature filing, infructuous suit). 👉 Effect: Plaintiff may file a fresh suit on the same subject. Important Point: In representative suits or where plaintiff is a minor, court’s permission is mandatory. 2. Transposition of Defendant as Plaintiff (Rule 1A) If the plaintiff withdraws, a defendant may seek to be transposed as plaintiff to continue the suit. 3. Fresh Suit and Limitation (Rule 2) Even if permission is granted, limitation law applies as if the first suit was never filed. 4. Compromise of Suit (Rule 3) Essentials of a Compromise Decree: • Lawful agreement/compromise. • Must be in writing & signed by parties. • Court records it and passes a compromise decree. Judicial Duty: Court must ensure the compromise is lawful and valid. Special Cases: • In representative suits, compromise requires court’s leave [Rule 3B]. • Compromise by pleader valid due to implied authority. Case Law: • Banwari Lal v. Chando Devi (1993 SC): Court can recall compromise obtained by fraud or misrepresentation. • Shankar v. Balkrishna (1954 SC): Compromise decree acts as estoppel. 5. Appeal Against Compromise Decree • Section 96(3) CPC: No appeal lies against a consent decree. • Order 23 Rule 3A: No separate suit to challenge compromise. • Remedy: Challenge before trial court under Proviso to Rule 3, then appeal under Section 96(1). Recent Case: • Sakina Sultanali v. Shia Imami Ismaili Momin Jamat Samaj (2025 SC): Compromise validity must first be challenged before trial court. Key Differences Between Order 22 and Order 23 Order 22 CPC primarily deals with situations where there is a change in the status of parties during the pendency of a suit, such as death, marriage, or insolvency. The focus under this order is on whether the right to sue survives. If the right to sue is of a personal nature, the suit abates automatically with the death of a party, but if it is transferable, the suit continues against or by the legal representatives. Thus, Order 22 is concerned with the continuity of the proceedings when a party is no longer able to represent themselves due to such changes. On the other hand, Order 23 CPC deals with the withdrawal and compromise of suits. Here, the focus is not on the survival of a right but on the intention of the plaintiff or parties. A plaintiff may withdraw a suit either with or without the court’s permission. If withdrawn without permission, a fresh suit on the same subject matter is barred. However, with the court’s permission, a plaintiff may withdraw and institute a new suit, particularly in cases of formal defects or sufficient grounds….

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Code of Civil Procedure(CPC)

order 16 and order 18 of cpc

August 28, 2025August 28, 2025 toahostinger No Comments

Trial under Civil Procedure Code (CPC): Procedure, Witness Summoning & Recording of Evidence Introduction In civil litigation, trial is the most crucial stage where the court examines evidence, hears arguments, and finally decides the case. Unlike preliminary steps (like filing of plaint, written statement, or notices), the trial is the main hearing of the suit where justice is tested in practice. The Code of Civil Procedure (CPC), 1908 lays down detailed provisions regarding trial, summoning of witnesses, recording of evidence, and hearing of suits. These provisions ensure fairness, transparency, and efficiency in judicial proceedings. What is a Trial? A trial means the stage where the judge: • Hears both oral and documentary evidence. • Considers arguments from both parties. • Decides the case based on law and facts. It is the heart of the judicial process, where disputes are resolved through evidence and argumentation. Public Trial: Open Court Principle (Section 153-B CPC) • General Rule: Every civil trial must be conducted in an open court where the public has access. • Purpose: To ensure transparency, fairness, and accountability. Public observation acts as a check on judicial conduct and builds trust in the system. • Exception: The court may conduct in-camera proceedings (excluding the public) if required for justice, such as in sensitive or confidential cases. 👉 Rule: Public trial is the norm, in-camera trial is the exception. Summoning and Attendance of Witnesses (Order 16 CPC) Order 16 CPC provides the procedure for securing witnesses for a civil trial. Step 1: List of Witnesses & Issue of Summons (Rule 1 & 1-A) • Parties must submit a list of witnesses within 15 days of settlement of issues. • Court may issue summons for their attendance. • Parties can also bring their witnesses without summons. • Case Law: Mange Ram v. Brij Mohan (AIR 1983 SC 925) → Court cannot refuse to examine such witnesses. Step 2: Payment of Expenses (Rule 2 & 4) • The party calling the witness must deposit travel and daily expenses within 7 days. • If unpaid, court may attach and sell movable property of the party. Step 3: Witness Present in Court May Be Examined (Rule 7) Even if not summoned, a person already present in court may be asked to give evidence. Step 4: Coercive Measures for Non-attendance (Rule 10) If a witness avoids summons: • Court may issue proclamation, arrest warrant, or attach property. • Fine up to ₹500 can also be imposed. Step 5: Court’s Suo Motu Power (Rule 14) Court can summon any witness on its own if necessary. Step 6: Party Refusing to Give Evidence (Rule 20) If a party refuses to testify, court may: • Pronounce judgment against him, or • Draw adverse inference. Summoning Prisoners (Order 16-A) • Prisoners may be summoned if their evidence is material. • Exceptions: medical issues, remand, short sentence, or state prohibition. • In such cases, evidence may be recorded on commission inside jail. Hearing of Suit & Examination of Witnesses (Order 18 CPC) Right to Begin (Rules 1–3) • General Rule: Plaintiff begins the case. • Exception: Defendant may begin if admitting facts but relying on law (e.g., limitation, jurisdiction). Example: • Plaintiff sues on a promissory note → Plaintiff must prove it. • Defendant admits note but pleads limitation → Defendant gets right to begin. Arguments (Rules 3A–3D) • Parties may give oral arguments. • Court may allow written arguments (filed under distinct headings). • Copies must be given to opposite party. • Courts may fix time-limits for oral arguments. Recording of Evidence (Rules 4–13, Order 18) Post-1999 & 2002 Amendments • Examination-in-chief → by affidavit. • Cross-examination & re-examination → oral before court/commissioner. • Court Commissioners can record evidence to save judicial time. Key Provisions: 1. Affidavit Evidence → filed with the court, copy to opposite party. 2. Withdrawal of Affidavit → allowed before cross, but admissions still binding. 3. Commissioner’s Role → records witness demeanor, submits report within 60 days. 4. Objections → recorded and decided at argument stage. 5. Fee of Commissioner → fixed by court; High Court/District Court maintains panel. Methods of Recording Evidence by Court 1. Written by Judge or under supervision. 2. Dictated by Judge (typed/recorded). 3. Mechanical Recording (audio/video with reasons). • In appealable cases → detailed recording required. • In non-appealable cases → memorandum of substance is sufficient. Other Important Rules (Order 18 CPC) • Rule 15: Evidence recorded by previous judge valid for successor judge. • Rule 16: Examination de bene esse (advance evidence if witness may not attend later). • Rule 17: Court may recall and re-examine witnesses. • Rule 18: Court may inspect property relevant to case. • Rule 19: Evidence may be recorded on commission. Conclusion The trial under CPC ensures that justice is not only done but is seen to be done. By laying down clear rules regarding public trials, summoning of witnesses, and recording of evidence, the Code safeguards transparency, accountability, and fairness in civil proceedings. For law students, judiciary aspirants, and legal professionals, a proper understanding of Order 16 and Order 18 CPC is essential, as these provisions directly impact the conduct of trials and the administration of justice. 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. Contact Us: B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 +91 9971399324 | +91 8840961324 [email protected]

Code of Civil Procedure(CPC)

August 26, 2025 toahostinger No Comments

Adjournment Under CPC – Meaning, Rules, and Case Laws Explained Adjournment is a common feature in civil litigation but often criticized for causing delays in justice. To balance fairness with efficiency, the Code of Civil Procedure, 1908 (CPC) under Order 17 lays down strict rules for granting adjournments. This article explains the meaning of adjournment, rules under Order 17 CPC, leading case laws, and valid vs invalid grounds for adjournment. What is Adjournment? Adjournment means postponing or suspending a court proceeding to another date or time.In simple words, when a hearing cannot continue on the scheduled date due to some reason, the court may grant a new date of hearing. Order 17 Rule 1 CPC – Maximum Number of Adjournments • The Court may grant adjournment only if sufficient cause is shown. • The reason must be recorded in writing by the court. • A party can get maximum three adjournments during the hearing of the suit. • This restriction was introduced by the Amendment Act, 1999. Case Law: • Salem Advocate Bar Association (II) v. Union of India (2005) – Supreme Court held that in extreme and exceptional circumstances, courts may relax the three-adjournment limit. Costs of Adjournment – Order 17 Rule 2 Whenever adjournment is granted: • The court must fix the next date of hearing. • The court may also impose costs on the party seeking adjournment. • If the adjournment was avoidable, heavier costs may be imposed. Special Rules under Order 17 Proviso 1. Continuous Hearing of Witnesses – Once examination of witnesses begins, hearings should continue day-to-day until completion. 2. No adjournment unless beyond control – Parties must show genuine and unavoidable reasons. 3. Lawyer busy in another court is NOT valid – This is no longer accepted as sufficient cause. 4. Lawyer’s sickness or unavailability – Court will see if another lawyer could be engaged. 5. Witness present but party/lawyer absent – The court may record witness testimony and proceed further. Order 17 Rule 2 – When Parties Fail to Appear If on an adjourned date, one or both parties fail to appear, the court may: • Proceed under Order 9 CPC (dismiss the suit or pass ex parte decree), or • Pass any other order it finds fit. Case Law: • Sangram Singh v. Election Tribunal (AIR 1955 SC) – If a party was earlier present but fails to appear on a later date, the court has discretion under Order 17 Rule 2 to proceed ex parte or otherwise. Order 17 Rule 3 – When a Party Fails to Produce Evidence If a party, after getting time, fails to produce documents, witnesses, or perform required acts: • If both parties are present: Court may decide the case on merits. • If any party is absent: Court may proceed under Rule 2 (dismissal or ex parte). Valid Reasons for Granting Adjournment Courts have accepted adjournments in genuine circumstances, such as: • Sickness of party, lawyer, or witness (with medical proof). • Summons not served properly. • Need more time to prepare due to late documents. • Lawyer withdrawal at the last moment. • Emergency or hospitalization of counsel. • Inability to find new counsel immediately after withdrawal. Invalid Reasons – Adjournment Refused Courts reject adjournments when reasons are weak or used as delay tactics: • Lawyer busy in another court. • Lawyers’ strike. • Dilatory conduct or intentional delays. • Witness present but not examined. • Case is very old and pending. • Inconvenience to the opposite party. • Repeated excuses despite earlier commitments. Valid and Invalid Reasons for Adjournment Courts grant adjournments only when there is a genuine and unavoidable reason. For example, if the party, their lawyer, or a witness is seriously ill, or if summons have not been served properly, the court may allow time. Similarly, when a lawyer suddenly withdraws, when there is an emergency such as hospitalization, or when a party is unable to find a new counsel in time, adjournments have been considered valid. On the other hand, adjournments are refused when the grounds are weak, avoidable, or intended to delay the proceedings. A lawyer being busy in another court, lawyers going on strike, or a party deliberately engaging in dilatory conduct are not accepted. Likewise, if a witness is present but not examined, if the case is very old and pending for long, or if adjournment would cause inconvenience to the other side, the court will reject the request. Repeated excuses after earlier commitments to proceed are also treated as invalid reasons. Case Laws on Adjournment • Salem Advocate Bar Assn. (II) v. Union of India (2005) – Maximum three adjournments rule not absolute; exceptions allowed. • Sangram Singh v. Election Tribunal (1955) – Court has discretion if party earlier appeared but absent later. • State of UP v. Shambhu Nath Singh (2001) – Courts must discourage unnecessary adjournments to ensure speedy justice. Conclusion Adjournments are meant to ensure fair trial and natural justice, but they must not become a tool for delaying proceedings. Under Order 17 CPC, courts can grant adjournments only for sufficient cause, and generally not more than three times. By imposing costs and discouraging invalid reasons, the judiciary ensures that justice is delivered both fairly and speedily. FAQs on Adjournment under CPC Q1. How many adjournments can be granted under CPC? 👉 Maximum three adjournments to a party during the hearing of the suit. Q2. Can adjournment be granted if a lawyer is busy in another case? 👉 No, this is not a valid reason anymore. Q3. What happens if a party is absent on adjourned date? 👉 Court may proceed under Order 9 CPC or pass any suitable order under Order 17 Rule 2. Q4. Can court impose costs for adjournment? 👉 Yes, the court can impose ordinary or heavy costs depending on circumstances. 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,…

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Code of Civil Procedure(CPC)

August 25, 2025August 25, 2025 toahostinger No Comments

Order 14 CPC (Framing of Issues) and Order 15 CPC (Disposal of Suits at First Hearing) The Code of Civil Procedure, 1908 (CPC) lays down detailed rules for the conduct of civil trials in India. Two important provisions are Order 14 (Framing of Issues) and Order 15 (Disposal of Suits at First Hearing), which ensure clarity, efficiency, and fairness in the judicial process. This article explains what issues are, how they are framed under Order 14 CPC, what preliminary issues mean, and how suits can be disposed of at the first hearing under Order 15 CPC. What is an Issue in CPC? An issue arises when one party affirms a material proposition of law or fact and the other party denies it. • Material propositions are those which a plaintiff must allege to show his right to sue or a defendant must allege to constitute his defence. • Thus, each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Types of Issues According to Order 14 Rule 1(4), issues are of two kinds: 1. Issues of fact 2. Issues of law Issues of Fact – Example Case: Suit for recovery of money • Plaintiff’s pleading: “The defendant borrowed ₹1,00,000 from me on 1 Jan 2025 and agreed to repay it by 31 March 2025.” • Defendant’s reply: “I never borrowed any money from the plaintiff.” ➡️ Issue framed: “Whether the defendant borrowed ₹1,00,000 from the plaintiff on 1 Jan 2025?” Issues of Law – Example Examples of legal issues: • Whether the court has jurisdiction? • Whether the suit is barred by limitation? • Whether the claim is barred under Res Judicata or Order 2 Rule 2? If a legal issue, when decided, can dispose of the suit, it becomes a preliminary issue. What is a Preliminary Issue? As per Order 14 Rule 2(2), a preliminary issue is an issue of law which, if decided, can dispose of the entire suit without going into a full trial. Examples of Preliminary Issues: 1. Whether the court has jurisdiction to try the suit? 2. Whether the suit is barred by limitation? General Rule vs Exception • General Rule (Order 14 Rule 2(1)): The court must decide all issues (law and fact) together, even if the suit could be disposed of on a preliminary issue. • Exception (Rule 2(2)): The court may decide only preliminary issues first, but only if they relate to: 1. Jurisdiction of the court, or 2. A legal bar to the suit. After the 1976 Amendment: Courts cannot treat all legal issues as preliminary, except jurisdiction and legal bar, to prevent delay. Materials Considered in Framing Issues As per Order 14 Rules 1(5) & 3, the following materials are used for framing issues: 1. Plaint and Written Statement 2. Examination under Order 10 Rule 2 CPC 3. Answers to interrogatories 4. Allegations made on oath by parties or their pleaders 5. Contents of documents produced by either party 👉 The court can adjourn framing of issues for up to 7 days (1999 Amendment) and may also summon evidence for proper framing. Amendment and Striking Out of Issues • The court can amend issues or frame additional ones at any time before passing a decree (Order 14 Rule 5(1)). • It may strike out wrongly framed issues (Order 14 Rule 5(2)). Omission to Frame Issues Failure to frame an issue is not always fatal. If parties understood the matter in controversy and went to trial, omission will not vitiate the proceedings ( Kamleshwaram v. Subbarao, AIR 1963 SC 884). Order 15 CPC – Disposal of Suits at First Hearing Order 15 CPC deals with situations where the court can dispose of suits at the first hearing itself, without proceeding to a full trial. Cases where Court may Pronounce Judgment at Once 1. No dispute – When the parties are not at issue on any fact or law. 2. One defendant not at issue – Where one of the defendants is not at issue with the plaintiff. 3. After framing of issues – If the court finds no further evidence or argument is required. 4. Failure to produce evidence – Where summons was issued for final disposal and a party fails to produce evidence without sufficient cause. Conclusion The combined effect of Order 14 CPC and Order 15 CPC is to ensure that: • Only real disputes go to trial. • Cases involving no substantial controversy are disposed of quickly. • Courts save time by identifying preliminary issues (jurisdiction/legal bar) early on. Thus, these provisions strike a balance between fair trial and speedy justice, which is the very objective of the CPC. 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. Contact Us: B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 +91 9971399324 | +91 8840961324 [email protected]

Code of Civil Procedure(CPC)

August 23, 2025August 25, 2025 toahostinger No Comments

Order 11 CPC: Discovery and Interrogatories under Civil Procedure Code Introduction In civil litigation, parties often need clarity about the opponent’s case. After the plaintiff files the plaint and the defendant files the written statement, it is sometimes unclear what facts or documents the other side is relying upon. To avoid surprises during trial, the Civil Procedure Code (CPC), 1908 provides a mechanism called discovery under Order 11 CPC. Discovery ensures that both parties disclose relevant facts or documents beforehand, saving time, clarifying issues, and preventing injustice. Meaning of Discovery under CPC The term discovery is not explicitly defined in the CPC, but it generally means: • Compelling the opposite party to reveal facts or documents within their knowledge or possession, which are relevant to the dispute. • It is a form of compulsory pre-trial disclosure of information. Legal Basis of Discovery • Section 30 CPC – Empowers the court to order discovery. • Order 11 CPC – Provides the detailed procedure for discovery. Important Point: Discovery does not allow a party to know the evidence strategy of the opponent, as that could lead to misuse. Instead, it only allows disclosure of relevant facts and documents (facta probanda), not the evidence (facta probantia). Objectives of Discovery The main object of discovery is to: 1. Ascertain the real nature of the opponent’s case. 2. Prevent concealment of material facts. 3. Save time by reducing unnecessary evidence. 4. Support one’s own case or weaken the opponent’s case. Case Law: Raj Narain v. Indira Gandhi (1972 SC) – Discovery can be used either to support one’s case or to destroy the opponent’s case. Types of Discovery under CPC Discovery under Order 11 CPC is of two types: 1. Discovery by Interrogatories (Order 11 Rule 1–11) • One party sends written questions (called interrogatories) to the other party. • The other party must answer them on oath through affidavit. • Helps clarify facts and extract admissions. Example: “Did you receive ₹50,000 on 1 March 2023?” Key Rules: • Rule 1 – Leave of court required to serve interrogatories. • Rule 6 – Objections allowed if questions are irrelevant, scandalous, or mala fide. • Rule 7 – Court may strike out unreasonable or oppressive questions. • Rule 8 – Answers must be given within 10 days or within court’s time limit. • Rule 11 – Court can order answers through affidavit or oral examination. Special Rule: Interrogatories may be served on next friend/guardian in case of minors or persons of unsound mind (Rule 23). 2. Discovery of Documents (Order 11 Rule 12–21) • A party can request the court to order the opponent to disclose documents in their possession/control relating to the dispute. • Opponent must file an affidavit of documents listing relevant papers. • The court may allow inspection of such documents. Example: “Produce all invoices between Jan and March 2023.” Key Rules: • Rule 12 – Application for discovery of documents. • Rule 14 – Court may order production of documents at any stage. • Rule 20 – Discovery may be postponed if premature. • Rule 21 – Non-compliance → plaintiff’s suit may be dismissed or defendant’s defence struck off. Case Law: M.L. Sethi v. R.P. Kapur (1972) – Court can order discovery even if the document is not to be used as evidence, as long as it relates to the dispute. Documents Exempted from Discovery Not all documents can be ordered for discovery. Exemptions include: 1. Documents not admissible in evidence (e.g., unstamped documents). 2. Documents disclosing opponent’s evidence strategy. 3. Privileged documents under Evidence Act (Sections 123–124). 4. Discovery that is oppressive or irrelevant. Consequences of Non-Compliance (Rule 21 CPC) • If plaintiff defaults → suit may be dismissed, fresh filing barred. • If defendant defaults → defence may be struck off. Admission under Order 12 CPC Closely connected with discovery is the concept of admission under Order 12 CPC. • Section 58 of Evidence Act – Facts admitted need not be proved. • Order 12 CPC – Parties can admit facts or documents in pleadings or otherwise. Types of Admissions 1. Admission in pleadings (express or constructive). 2. Admission by agreement of parties. 3. Admission during court examination. 4. Admission on notice. Order 12 Rule 6 – Judgment on Admission • If there is a clear admission, the court can pass judgment without a full trial. • Case Law: Uttam Singh Duggal v. United Bank of India (2000) – Decree can be passed if claim is clearly admitted. Production of Documents under Order 13 CPC • Parties must produce original documents at/before settlement of issues. • Court can reject irrelevant documents (Rule 3). • Admitted documents must be endorsed by court (Rule 4). • Court can impound documents if risk of tampering exists (Rule 8). • Return of documents only after appeal is disposed or limitation expires (Rule 9). Affidavits under Order 19 CPC • An affidavit is a written, sworn statement of facts by a person (deponent). • Used mainly in interlocutory matters like injunctions, receivership, etc. • Must be verified properly, stating facts based on personal knowledge or source of information. Case Law: Barium Chemicals v. Company Law Board (1967) – Improper verification makes affidavit defective. Conclusion Order 11 CPC on Discovery and Interrogatories plays a vital role in ensuring transparency in civil litigation. It prevents surprises, clarifies issues, saves trial time, and ensures fairness. Along with Order 12 (Admissions), Order 13 (Production of Documents), and Order 19 (Affidavits), it strengthens the pre-trial procedure, making the judicial process efficient and effective. For law students, judiciary aspirants, and legal practitioners, understanding discovery is essential for mastering civil trial procedures. 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…

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Code of Civil Procedure(CPC)

August 23, 2025 toahostinger No Comments

Order 10 CPC: Examination of Parties by Court Order 10 of the Code of Civil Procedure, 1908 (CPC) deals with the examination of parties by the court. The main purpose is to ascertain whether the allegations made in the pleadings are admitted or denied, and to clarify the real controversy between the parties before framing the issues. This provision plays a crucial role in reducing unnecessary litigation by: • Bringing clarity on admissions and denials. • Encouraging Alternative Dispute Resolution (ADR) under Section 89 CPC. • Saving judicial time by identifying disputes at an early stage. 🔹 First Hearing of the Suit The first hearing means the day when the court applies its mind to the pleadings of the parties to understand their contentions for the purpose of framing issues. Case Law: Siraj Ahmad v. Premnath (1993 SC) 🔹 Rule 1: Ascertainment of Admissions or Denials At the first hearing, the court shall orally examine the parties (or their pleaders) to know whether they admit or deny the allegations in the pleadings. • If pleadings are clear (properly traversed), the court need not invoke this rule. • If pleadings are vague, the court can examine the parties to record admissions or denials. Kapil Corepacks (P) Ltd. v. Harbans Lal (2010 SC) The Supreme Court held that Order 10 Rule 1 CPC is necessary only where the pleadings lack clarity in admissions and denials. 🔹 Rules 1A to 1C: ADR Provisions Inserted by the 2002 Amendment, these rules integrate Alternative Dispute Resolution (ADR) into CPC through Section 89. Rule 1A – Direction for ADR After recording admissions and denials, the court directs the parties to opt for one ADR method: • Arbitration • Mediation • Lok Adalat • Judicial Settlement Rule 1B – Appearance Before ADR Forum Parties are bound to appear before the ADR authority once the court refers the matter. Rule 1C – If Conciliation Fails If the ADR authority feels settlement is not possible, the matter is referred back to the court for trial. Step-by-step Process: 1. Court records admissions & denials (Rule 1). 2. Court directs parties to choose ADR (Rule 1A). 3. Parties appear before ADR forum (Rule 1B). • If settled → decree passed. • If not settled → referred back to court (Rule 1C). 4. Court resumes trial. 🔹 Rule 2: Oral Examination of Party • The court may orally examine any party or any person accompanying them to clarify matters in controversy. • This rule is broader than Rule 1 as it is not confined to admissions or denials. • It can be invoked at any stage of the hearing. • Not conducted on oath and is not a substitute for cross-examination. 🔹 Rule 3: Substance of Examination The judge must reduce the examination into writing and it shall form part of the record. 🔹 Rule 4: Consequence of Refusal to Answer If a pleader or party refuses or is unable to answer material questions: • Court may adjourn the hearing (max 7 days) and direct the party to appear personally. • If the party still fails to appear, the court may pass judgment against them or take other suitable action. 🔹 Section 89 CPC and ADR Purpose of Section 89 CPC Introduced in 1999 to reduce judicial backlog by encouraging settlement outside court. Modes of ADR under Section 89: • Arbitration • Conciliation / Mediation • Lok Adalat • Judicial Settlement 🔹 Landmark Case: Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (2010 SC) The Supreme Court clarified the interpretation of Section 89 CPC: • Judges are not required to draft settlement terms before referring cases to ADR. • Courts only need to identify if the case is suitable for ADR. • Referral to ADR is mandatory for the court to consider, but not mandatory in unsuitable cases. Cases Suitable for ADR • Commercial & contractual disputes. • Matrimonial & family matters. • Landlord-tenant & partnership disputes. • Consumer disputes. Cases Not Suitable for ADR • Representative suits (Order 1 Rule 8 CPC). • Election disputes. • Probate & administration cases. • Fraud, forgery, coercion-related cases. 🔹 Mediation Act 2023 and Section 89 The Mediation Act, 2023 amended Section 89 CPC by: • Removing the requirement for courts to draft settlement terms. • Aligning ADR terminology properly. • Bringing law in line with Afcons judgment. 🔹 Conclusion Order 10 CPC ensures that before the trial begins, the court clarifies what is admitted and denied, and explores the possibility of settlement through ADR under Section 89 CPC. • If settlement succeeds → decree is passed. • If it fails → trial resumes. This system reduces unnecessary litigation, saves judicial time, and encourages amicable resolution of disputes. ✓ In short, Order 10 CPC is not just about framing issues but about promoting speedy justice through ADR. ∆ 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. Contact Us: B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 +91 9971399324 | +91 8840961324 [email protected]

Code of Civil Procedure(CPC)

August 22, 2025 toahostinger No Comments

Order 8 CPC – Written Statement, Set-off and Counterclaim Explained The Code of Civil Procedure, 1908 (CPC) governs civil proceedings in India. One of its most important provisions is Order 8 CPC, which deals with the written statement, set-off, and counterclaim filed by the defendant in response to the plaintiff’s plaint. This article provides a comprehensive guide to Order 8 CPC, covering rules, requirements, case laws, format, and distinctions between set-off and counterclaim. What is a Written Statement under Order 8 CPC? A written statement is the pleading of the defendant in response to the allegations made by the plaintiff in the plaint. • It contains admissions, denials, legal objections, and sometimes new facts in favor of the defendant. • All the general rules of pleadings apply to a written statement. ✓ In short, the written statement is the defendant’s side of the story. When Should a Written Statement be Filed? (Order 8 Rule 1 CPC) • The defendant must file the written statement within 30 days from the date of service of summons. • The court may extend this period up to 90 days, but not as a routine matter. Case Laws • Kailash v. Nankhu (2005 SC): The 90-day limit is directory, not mandatory. • Salem Advocate Bar Association v. Union of India (2005 SC): Court has discretion to extend beyond 90 days in exceptional cases. ✓ However, courts discourage unnecessary delays to avoid defeating the purpose of speedy trials. Format of a Written Statement A written statement usually follows this format: • Court name • Parties (Plaintiff vs Defendant) • Admissions and denials (point-wise reply to plaint) • Additional pleas (new facts or defenses) • Prayer for dismissal of suit • Verification and signature by defendant and advocate Order 8 Rule 1A – Duty of Defendant to Produce Documents If the defendant relies on any document, he must: 1. List such documents in writing, 2. Submit originals and copies with the written statement, 3. Mention where the document is if not in his possession, 4. Failing which, he cannot use the document later (unless permitted by the court). Exceptions • Cross-examination documents, • Documents used only to refresh memory. Example: If Defendant B claims he already repaid ₹3 lakh to Plaintiff A and has a receipt, he must file that receipt with his written statement. Order 8 Rule 2 – New Facts Must be Specially Pleaded The defendant must clearly plead new facts like: • Limitation (time-barred claim), • Fraud or illegality, • Payment already made, • Contract already performed, • Release from liability. This ensures no surprise defense during trial and that the plaintiff knows the real issues. Order 8 Rules 3 to 5 – Specific Denial • Defendant must specifically deny each allegation. • General denials are not enough. • If a fact is not specifically denied, it is deemed to be admitted. Example: • Plaintiff: “Defendant borrowed ₹1,00,000 on 1st Jan 2023.” • Defendant (wrong denial): “I deny the allegations.” • Defendant (correct denial): “I deny borrowing ₹1,00,000 or any other amount from the plaintiff on 1st Jan 2023 or on any date.” Set-Off under Order 8 Rule 6 CPC A set-off means adjusting a mutual debt against the plaintiff’s claim. Conditions for Set-Off 1. Plaintiff’s suit must be for money recovery, 2. Amount must be ascertained, 3. Must be legally recoverable, 4. Between the same parties in the same legal character, 5. Must not exceed the court’s pecuniary jurisdiction. Types of Set-Off 1. Legal Set-Off – For ascertained sums, claimed as a matter of right. 2. Equitable Set-Off (Order 20 Rule 19(3)) – For unascertained sums, arising from the same transaction, allowed at the discretion of the court. Case Law: Harishchandra Dwarkadas v. Firm Murlidhar (1957) – Even if plaintiff’s suit fails, the defendant’s valid set-off can still be decreed. Counterclaim under Order 8 Rules 6A–6G CPC A counterclaim is the defendant’s own claim against the plaintiff, filed along with the written statement. Features of Counterclaim • Can be for any cause of action, not just money. • May arise from the same transaction or different transaction. • Must arise before filing the written statement. • Treated like a cross-suit. Examples • Plaintiff sues for injunction, defendant counterclaims for possession. • Plaintiff sues for defamation damages, defendant counterclaims for his own defamation damages. ✓ Even if plaintiff withdraws his suit, the counterclaim survives and can be decided on merits. Distinction Between Set-Off and Counterclaim The distinction between a set-off and a counterclaim is important under the Code of Civil Procedure. A set-off is in the nature of a defensive plea, where the defendant seeks to adjust a specific, ascertained sum of money against the plaintiff’s claim. It is permitted only in suits for recovery of money, provided the claim is legally recoverable, arises out of the same transaction, and falls within the pecuniary jurisdiction of the court. The Supreme Court in Union of India v. Karam Chand Thapar & Bros. (1969) explained that a set-off is limited in scope and operates as a shield. In contrast, a counterclaim is much wider in scope and is treated as a cross-suit. It allows the defendant not only to resist the plaintiff’s claim but also to enforce his own independent cause of action against the plaintiff. Unlike set-off, a counterclaim need not arise from the same transaction and is not confined to money claims; it may extend to damages, possession, declaration, or injunction, provided the cause of action accrued before the filing of the written statement. The Supreme Court in Kailash v. Nankhu (2005) emphasized that counterclaims ensure comprehensive adjudication by avoiding multiple suits. Moreover, in Laxmidas v. Nanabhai (1964) it was held that a counterclaim can survive even if the plaintiff’s suit is withdrawn or dismissed. Thus, while a set-off is restricted to a defensive adjustment of monetary claims, a counterclaim is both defensive and offensive in nature, enabling the defendant to obtain a decree…

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Code of Civil Procedure(CPC)

August 21, 2025August 22, 2025 toahostinger No Comments

Order 7 of CPC: Plaint – A Complete Guide Order 7 of the Civil Procedure Code (CPC), 1908, deals with plaints – the written statement by which a civil suit is initiated in court. The plaint is the foundation of any civil case and must be drafted carefully, as it determines how the court will proceed with the matter. In this article, we will cover the meaning, essential requirements, and detailed rules under Order 7 CPC along with relevant case law, so you can understand how a plaint works in practice. What is a Plaint? A plaint is the written document filed by the plaintiff in a civil court, stating the facts of the case, cause of action, relief sought, and other particulars. It is the starting point of every civil suit and must comply with the rules of Order 7 CPC. If a plaint does not meet these requirements, the court may either return or reject it. Rule 1: Particulars of a Plaint Every plaint must contain certain basic details, including: • The name of the court where the suit is filed. • The name, description, and residence of the plaintiff. • The name, description, and residence of the defendant. • Statement if any party is a minor or of unsound mind. • The facts constituting the cause of action and the date it arose. • Facts showing why the court has jurisdiction. • The relief claimed by the plaintiff. • Statement of the value of the subject matter for jurisdiction and court fees. ✓ In short, the plaint must tell the court who is suing whom, for what reason, and what relief is being sought. Rule 2: Money Suits When a plaintiff seeks recovery of money, the plaint must state the exact amount claimed. • If the amount is fixed and known, the precise figure should be mentioned. • If the amount is uncertain (like mesne profits, unsettled accounts, or debts that cannot be calculated exactly), the plaint should mention an approximate value. Rule 3: Suits Relating to Immovable Property If the dispute concerns land or property, the plaint must describe the property in a way that it can be easily identified. This includes boundaries, survey numbers, or landmarks. Minor errors in description will not invalidate the plaint, as long as the property can be clearly understood by the defendant and the court. Rule 4: Representative Suits When a plaintiff files a suit in a representative capacity (for example, an executor of a will or a legal heir), the plaint must show that: 1. The plaintiff has a legal interest in the matter. 2. All legal formalities (such as probate in case of a will) have been completed. Rule 5: Defendant’s Interest and Liability The plaint must explain how the defendant is connected to the dispute and why he is liable to respond to the plaintiff’s claim. Rule 6: Grounds of Exemption from Limitation If a suit is filed after the limitation period, the plaint must include valid reasons for seeking exemption. Courts may accept such grounds if they are legally justified and not inconsistent with the plaint’s facts. Rule 7: Specific Relief The plaintiff must clearly state the relief claimed in the plaint. Relief may include: • Damages (compensation) • Possession of property • Declaration of rights • Injunction (to stop or prevent an act) • Specific performance of a contract The plaintiff may also seek alternative relief, in case the main relief is not granted. Rule 8: Separate Grounds of Relief If the plaintiff seeks multiple and distinct reliefs based on separate causes of action, they must be stated separately and clearly. Rule 9: Procedure After Admission of Plaint Once the court admits the plaint, the plaintiff must file copies of the plaint for each defendant within 7 days, along with requisite court fees. Rule 10: Return of Plaint A plaint is returned when the court finds it has no jurisdiction to hear the case. This may be due to: • Territorial jurisdiction, • Pecuniary jurisdiction, or • Subject-matter jurisdiction. The court endorses the date of presentation, date of return, reason for return, and name of the person taking it back. ✓ The plaintiff can then file it in the appropriate court. Rule 10-A & 10-B: Procedure Before and During Return If the court decides to return a plaint, it must first notify the plaintiff. The plaintiff can request the court to fix a date of appearance in the proper court. Even appellate courts (like High Courts) can return plaints if they find the original court lacked jurisdiction. Rule 11: Rejection of Plaint A plaint can be rejected in the following cases: 1. If it does not disclose a cause of action. 2. If the relief claimed is undervalued and not corrected within time. 3. If the plaint is insufficiently stamped and the defect is not rectified. 4. If the suit is barred by law on the face of the plaint. 5. If it is not filed in duplicate. 6. If Rule 9 requirements are not complied with. Important distinction: • Rejection of plaint is on technical grounds – the plaintiff may file again. • Dismissal of suit is on merits – a fresh suit cannot be filed. Rules 12 & 13: Effect and Procedure of Rejection When a plaint is rejected, the court passes an order with reasons. The plaintiff is not barred from filing a fresh plaint on the same cause of action, subject to limitation. Rules 14 to 17: Documents to be Filed with Plaint The plaintiff must file all relevant documents with the plaint (e.g., agreements, receipts, letters). If not filed, they cannot be used later unless the court permits. Exceptions: • Documents used for cross-examination. • Documents shown only to refresh a witness’s memory. Difference Between Return and Rejection of Plaint • Return of plaint – Filed in the wrong court, but can be…

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Code of Civil Procedure(CPC)

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