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Ebook `The Code of civil procedure: being Act XIV of , incorporating amending `: ebooks list of Dinshah Fardunji Mulla India. Free ebook download. Buy The Code of Civil Procedure, Notes by PDF Online from ICSI. Download Free Sample and Get Upto 10% OFF on MRP/Rental. (4) "district" means the local limits of the jurisdiction of a principal Civil Court of (11) "legal representative" means a person who in law represents the estate of of any class of agricultural produce as may have been declared to be free from.

UNIT- V. The 'Code of Civil Procedure' is a procedure law, i. The Code neither creates nor takes away any right. It only helps in proving or implementing the 'Substantive Law'. The Code. S contains Sections and 51 Orders.

K m Separate tria Where it appears to the Court that the joinder of causes of action in one suit may embarrass. According to order VI Rule 1, pleading shall mean plaint or written statement. K In proceedings before a Civil Court pleading may include a petition and reply thereto by the respondent whether to the form of an affidavit or otherwise.

Plaintiff's pleading is called a plaint while the defendant's pleading is called a Written Statement. The object of pleading is to bring parties to definite issues and to diminish expense and delay and to prevent surprise at the hearing. First is to afford the other side intimation regarding the particular facts of his case so that they may be met by the other side. Second is to enable the Court to determine what is really the issue between the parties.

Apart from this some important fundamental procedural matters relating to the practice are the provisions of Order I Parties to suit , as to the manner in which a suit should be framed Order II Frame of suit , as to who should sign the pleading Order III and Order IV Institution of suit and as to taking out of summons and their services Order V.

S 4 The facts stated must be in concise form. U 1 Facts probanda: It is the fundamental rule of pleading that pleadings must include the material facts a and not the facts by.

K means of which they are to be proved i. The term material facts has not been defined in the m code, but the expression "material facts" has been defined by the Hon'ble S. M It means all facts upon which the plaintiffs cause of action or the defendant's defence depends, or all those m facts which must be proved in order to establish the plaintiff's right to relief claimed in the plaint or the defendant defence.

Rule 16 If the pleading is unnecessary, scandalous, frivolous; or vexatious25 or d tends to prejudice, embarrass or delay the fair trial of the suits or is otherwise an abuse of the process of the.

Every pleading shall be signed by the party and his pleaders if any or by any person duly authorized to sign the same or to sue or defend on his behalf28 and 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 case.

As a general rule, material facts and necessary particulars must be stated in the pleadings and the decision cannot be based on the grounds outside the pleadings. But due to various reasons parties have to amend their pleadings for which Order VI rule 17 states as under:.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial".

In order to try a case on its merits and for determining the real question in controversy between the parties the Courts are empowered under 'rule 17 to allow the amendment of the pleadings. Amendment in the pleading may be with the permission of the Court.

Permission to amend when granted: A leave to. S the amendment no injury will be caused to the opposite party and he can be sufficiently compensated for by costs or other terms to be imposed by the order and where the amendment is necessary for the determination of the real question in controversy and no injustice will be caused to the other party the Court may allow the amendment of the pleadings. K the law of limitation notwithstanding.

But the exercise of such far-reaching discretionary powers is. Where an amendment is allowed, such amendment relates back to the date of e a. M suit as originally filed. The court must look to the pleadings as they stand after the amendment and have out of consideration unamended ones. If a party remained failed to amend after the order of amendment, within the time.

A specified for that purpose in the order or if no time is specified, then within 14 days from the date of the order,. K Failure to amend does not result in the dismissal of the suit and the court has discretion to extend the time even after the expiry of the period originally fixed. Order under rule 17 is Revisable: An order granting or refusing amendment is a 'case decided' within the meaning of section arid revisable by the Court. The above order is neither a decree nor appealable order and hence not appealable.

Every civil suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in that behalf. Plaint is a pleading of the plaintiff. The word has not been defined is the code but it can be said to be a statement of claim, a document, by presentation of which the suit is instituted.

Body of Plaint Relief Prayed for. Title of the suit consists of the name of the Court, case number to be given by the office of the Court and descriptions of parties. Body of Plaint: In this part the plaint consists of the facts constituting the cause of action and when it arose.

S Reliefs: The plaint shall finally contain the relief which the plaintiff claims either simply or in the end. Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative. U justice and the rules of procedure are meant to advance the cause of justice and not to impead it.

The plaintiff ought to be given such relief as he is entitled to get on the facts established on the basis of the evidence in the case even if the plaint does not contain a specific prayer for the relief. The equitable relief. K under Order VII, Rule 7 may be granted even though grounds on which relief is sought have not been stated as required by the rule.

A plaint shall contained the following particulars: M 1 36 a the name of the Court in which the suit if brought;. A ascertained; d d where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to. K e the facts constituting the cause of action and when it arose;. U 2 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.

K 3 Procedure on returning plaint: On returning a plaint the judge shall endorse thereon the date of its. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return - a. A M yn a m 1 Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff.

Where notice of the date for appearances is given under Sub-rule 3 ,-. It shall not be necessary for the Court in which the Plaint is presented after its return, to serve the defendant with a summon for appearance in the suit, unless that court, for reasons to be recorded, otherwise directs, and. Where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within the time to be fixed by the Court fails to do so.

Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently. K stamped, and the plaintiff on being required by the Court to supply the requisite stamp- paper within m co the time to be fixed by the Court, fails to do so.

Where the suit appears from the statement in the plaint to be barred by any law. Where the plaintiff fails to comply with the provisions of Rule A stamp- papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the. K Rule Procedure on rejecting plaint: Where a plaint is rejected the judge shall record an order to that effect with the reasons for such order.

Rule Where rejection of plaint does not preclude presentation of fresh plaint: The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Procedure on Admitting Plaint Where the plaint of plaintiff has been admitted and the Court directs that the summons be served on the defendant as provided in Order V, Rule 9, the Court will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within 7 days from the date of such order along with requisite fee for service of summons on the defendants.

Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents 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.

Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. 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,.

S But, the provision of Rule 14 shall not apply to the following documents A Written Statement is a pleading of the defendant for submission of every material fact to answer the allegation made by the plaintiff in his plaint. The word has not been defined in the code, but the. K same may be defined as under: A M yn a m Preparation of Written Statement: All relevant rules of pleading apply to a Written Statement and it should be prepared with great caution. In the Written Statement firstly, the defendant should mention the name of the Court trying the suit, then-1the names of the parties.

It is not necessary to mention the names, directions and place of residence of all the parties in the title of the Written Statement, but mentioning the name of the. The number of suit may be mentioned thereafter. K maintainability of the suit, locus standi of the plaintiff to file suit, the non-joinder or misjoinder of parties as to the jurisdiction of the Court or as to limitation, for consideration which is necessary in the 1st 'nstance before the suit is tried on merits.

Rules of Defence: The denial in a Written Statement must be specific and not general. The grounds alleged by the plaintiff must be denied by a defendant specifically with each allegation of fact of which he does not admit the truth, except damages.

The denial should not be vague or evasive. 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 o be admitted except as regards a person under disability. In cases where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts in the plaint except as against a person under disability, but the Court, in its discretion, may require any such fact to be proved.

Time to File Written Statement: The defendant shall file his Written Statement of his defence within 30 days from the date of service of summons on him, but the above time may be extended by the Court further for a period, which shall not be later than 90 Days from the date of service of summons.

Extension of time to Present Written Statement: The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired.

The extension of time shall be only by way of exception and for reasons to be recorded in writing, how. S soever brief they may be, by the Court. Subsequent Pleadings According to Order VIII, 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. U except by the leave of the Court, 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 30 days for presenting the same.

Failure to present Written Statement: Where a party fails to file a Written Statement as required under. K Rule 1 or Rule 9 within a time permitted or fixed by the Court, the Court shall pronounce judgment against. A M yn a m Meaning: Set-off means a claim set up against another.

It is a counter claim against the plaintiff but in essence it is a form of defence in which the defendant while acknowledging the justice of the plaintiffs claim. Where in a suit for 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 plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

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 not after the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of a set-off.

A sues B on a bill of exchange for Rs. B holds a judgment against A for Rs. The two claims both definite, pecuniary demands may be set-off. A sues B for compensation on account of trespass. B holds a promissory- note for Rs. B may do so, for as soon as A recovers, both sums are definite pecuniary demands. The suit must be for the recovery of money. The sum of money must be ascertained. S III. Such sum must be legally recoverable.

It must be recoverable by the defendant or by all the defendants, if more than one. It must be recoverable by the defendant from the plaintiff or from all plaintiffs'; if more than one. It must not exceed the pecuniary jurisdiction of the Court in which the suit is brought.

Both the parties must fill in the defendant's claim to set-off, the same character as they fill in the plaintiffs suit. K m Equitable set-off: The provision of Rule 6 are not exhaustive. An equitable set-off may be claimed by the defendant in respect of an unascertained sum of money, a. M provided that both the cross demands arise out of one and the same transaction or are so connected, in the. A sues B to recover Rs. Claim for A legal set-off must be for an An Equitable set-off may be allowed ascertained cum of money.

As Right A legal set-off can be claimed as An equitable set-off cannot be a right and the court is bound to claimed as a right and it is granted at entertain and adjudicate upon it. Same Transaction In a legal set-off, it is not necessary An equitables set-off can be allowed that the cross demands arise out of only when the cross- demands arise.

Legally Recoverable The amount claimed as set-off In cases, where there is a fiduciary must be legally recoverable and relationship between the parties, a should not be time barred. But even in cases of equitable- set-off where the defendant's claim was not barred at the date of suit but it is barred at the.

S date of W. U him, shall not be passed in his favour. Court Fee A legal set-off requires a Court fee. No Court fee is required in equitable set-off. K co m Meaning: It is a claim made by the defendant in a suit against the plaintiff and can be enforced by a cross. Counter claim is a cause of action in favour of the defendant against the plaintiff.

A d a m A counter-claim is a weapon in the hands of a defendant to defeat the relief sought by the plaintiff against him and may be set-up only in respect of a claim for which the defendant can file a separate suit and.

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 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:.

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Such counter claim shall be 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. The plaintiff shall be at a 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.

The counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints. Rule 6 B: Counter Claim to be stated: Where any defendant seeks to reply upon 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.

Rule 6 C: Exclusion of Counter Claim: 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 counter-claim but in an independent suit, the-plaintiff may, at the time before issues are settled in relation to the counter-claim, apply to the Court which may, on the hearing of such an application make such an order as it thinks fit.

S Rule 6 D: Effect of discontinuance of suit: 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.

U Rule 6 E: Default of plaintiff to reply Counter- Claim: If the plaintiff makes default in putting in a 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.

The Code of civil procedure: being Act XIV of 1882, incorporating amending ...

K Rule 6 F: Relief to defendant where Counter Claim succeeds: Where in any suit a set-off or counter-. Rule 6 G: Rules relating to written statement to apply: The rules relating to a written statement by a a.

M defendant shall apply to a written statement filed in answer to a counter claim. Defence or set-off or counter- claim founded upon separate grounds: Where the defendant. A distinct facts, they shall be stated, as far as may be separately and distinct. Same It must be either for an ascertained It need not arise out of the same Transaction: Date for recovery In legal set-off the amount must In it the amount must be recovered of amount: The defendant's demand for an Where -the demand is for a larger amount below or up to the suit.

Ground of: It is a ground of defence to the It is a weapon of offence which plaintiff's action which if established, enable the defendant to enforce the would afford an answer to the claim against the plaintiff effectually plaintiff's claim in toto as a whole as an independent actions.

S rules which provide various provisions regarding the purpose, procedure, examination of applicant, rejection of application etc. The general rule for the institution of a suit is that a plaintiff suing in a Court of law is bound to pay Court-fees prescribed under the Court Fees Act at the time of presentation of plaint. U time of institution of the suit i. Meaning of Indigent Person: An indigent person is one who is not possessed of sufficient means due bad.

K personal economic condition. The word 'person' includes juristic person. K Explanation-II: Any property, which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III: Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity. Procedure to sue as Indigent Person: Before an indigent person can institute a suit, permission 0 Court to sue as an indigent person is required. As per rule 3, the application for permission to sue as a indigent person, shall be presented to the Court by the applicant in person, unless he is exempted from appearing in court, in which case the application may be presented by an authorized agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person:.

S The suit commences from the moment an application to sue in forma pauperis is presented According to Rule 1-A, an inquiry to ascertain whether or not a person is an indigent person shall be made. Rule 1-A: Every inquiry into the question whether or not a person is an indigent person shall be made, in. U the first instance, by the chief ministerial officer of the court, unless the court otherwise directs, and the court may adopt the report of such officer as its own finding or may itself make an inquiry into the question.

K Examination: Where the application is in proper form and duly presented, the court may if it thinks fit, examine the. If presented by agent, court may order applicant to be examined by commission - Where the application is presented by an agent, the court may, if it thinks fit, order that the applicant be examined by a. A d Rejection of Application: Rule 5: The court shall reject an application for permission to sue as an indigent person —.

Where it is not framed and presented in the manner prescribed by rules 2 and 3, or 2. Where the applicant is not an indigent person, or 3. Where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as an indigent person:.

PROVIDED that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or. Where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject matter, or.

Where the allegations made by the applicant in the application show that the suit would be barred by. Where any other person has entered into an agreement with him to finance the litigation. Procedure at Hearing On the date fixed, the Court shall examine the witness if any produced by either party to the matters specified in clause b , clause c and clause e of rule 5, and may examine the.

S applicant or his agent to any of the matters specified in Rule 5 the Court after hearing the argument hall either allow or refuse to allow the applicant to sue as an indigent person. Procedure if Application Admitted Where the application is granted, it shall be deemed the plaint in.

U suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except at the plaintiff shall not be liable to pay any court fee or fees payable for service of process in respect of any petition, appointment of a pleader or other proceedings connected with the suit. K Withdrawal of Permission The Court may, on the application of the defendant, or of the government.

K A tu d Realization of Court fees: Where Indigent person succeeds: Rule 10 Where the plaintiff succeeds in the suit, the court S shall calculate the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject matter of the suit.

Where Indigent person fails: Rule 11 Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed,-.

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Where an indigent person's suit abates: A Where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the court shall order that the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person shall be recoverable by the State government from the estate of the deceased plaintiff.

According to rule 15, where the application to sue as an indigent person is refused, it shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided he pays the costs. S incurred by the Government Pleader and the opposite party in opposing in application. When an application is either rejected under rule 5 or refused under rule 7, the Court will grant time to the applicant to pay the requisite Court fee within the specified time or within time extended by the Court from.

U time to time, and upon payment of such Court fee and on payment of the costs referred to in rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was pr.

K The costs of an application for permission to sue as an indigent person and of an inquiry into indigence shall be costs in the suit. Any defendant, who desires to plead a set off or counter claim, may be allowed to set up such claim as an indigent person, and the rules contained in this Order shall, so far a.

M as may be, apply to him as if he were a plaintiff and his written statement were a plaint. A where an indigent person is not represented by a pleader, the Court may, if the circumstances of the case so.

A person unable to pay Court fees on memorandum of appeal may apply to allow him to. K appeal as an indigent person. The necessary inquiry as prescribed in Ord. But where the applicant was allowed to sue as an indigent person in the trial Court, no fresh inquiry will be necessary if he files an affidavit that he continues to be an indigent person.

Title to Suit: The authority63 to be named as a plaintiff or defendant, in any suit by or against Government shall be. Where the suit is by or against the Central Government, or 2. Where the suit is by or against the State Government. No suit shall be instituted, except as provided in sub-section 2 of section 80 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 unless a Notice in writing has been issued and until the expiration of two months next after notice.

Against Government: The Notice issued under section 80 1 shall be delivered to, or left at the office of —. In the case of a suit against any other State Government - i a Secretary to that Government; or K m ii the collector of the district.

In the case of a suit against Public Officer notice shall be delivered to him. The notice shall contain the following particulars -. A ii the cause of action; and d tu iii the relief, which the plaintiff claims. K Exemption from Notice A suit may, with the leave of the Court, be instituted to obtain an urgent or immediate relief without serving any notice as required under section 80 1.

But, in such suit, the Court shall not grant any relief, 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 in the suit.

It is also provided that the Court shall return the plaint for presentation to it after complying with the requirements of section 80 1 , if after hearing the parties, the Court is satisfied that no urgent or immediate relief need to be granted.

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No Dismissal of suit: Any suit instituted against the Government or such public officer shall not be dismissed, by reason of any error or defect in the notice, if such notice contains-.

The name, description and residence of the plaintiff, so as to enable the Government or such public. Agent and Authorized Agent: The Court shall allow a reasonable time in fixing a day for the Government. S to answer the plaint, for the purpose of necessary communication with the Government through proper channel and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government. The time so allowed may, at the discretion of the Court, be extended but the time so extended 71 shall not exceed two months in the aggregate.

K U Where in any case the Government Pleader is not accompanied by any person on the part of the Government, who may be able to answer any material.

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It shall be the duty of the Court to make every endeavour, if possible to do so consistently. M proceeding for such period, as it thinks fit, to enable attempts to be made to effect such a settiemen74 The. The defendant public officer on receiving the summons may. K The Government shall be joined as a party to the suit, where the suit is instituted against the public officer for damages or for any other relief in respect of any act alleged to have been done by him in his official capacity.

Where the government undertakes the defence of a suit against a public officer, the government pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.

Where no application under sub-rule 1 is made by the government pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties. No need of security from government or a public officer in certain cases: No such security as is mentioned in rules 5 and 6 of order XLI shall be required from the government or, where the government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done.

According to section 81 of the Code, if the suit is against a public officer in respect of any act purporting to be done by him in his official capacity —. S Execution of decree Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done by him in his official capacity, any decree passed against the Union of India or a State or, as the case may be, the public officer, shall not be executed except in accordance with the provisions of sub-section 2 of S.

K U An execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such decrep. The provisions of sub-sections 1 and 2 shall apply in relation to an order or award as they apply in.

A M m is capable of being executed under the provisions of this Code or of any other law for the time being in force as if it were a decree. K of that Government- the Central Government and such pleader as that Government may appoint An interpleader suit is a suit in which the real dispute is not between the plaintiff and the defendant but between the defendants only and the plaintiff is not really interested in.

The primary object of instituting an interpleader suit is to get claim of rival defendants adjudicated. Provided that where any suit is pending in which the -rights of the parties can properly be decided, no such suit of interpleader shall be instituted. Conditions for Application: Before the institution of aninterpleader suit, the following conditions must be satisfied:. Adverse Claim by two or more persons: The person from whom the debt, money or property is being claimed should not be interested in it: K person from whom such debt, money or property is claimed, must not be claiming any interest therein other than the charges and costs: The above person must be ready to deliver it: The above person must be ready to pay or deliver it to the.

No Pendency of Suit: An agent cannot sue his principal or a tenant his landlord for the purpose of compelling them to interplead S. K with persons claiming through such principals or landlords,88 because ordinarily, an agent cannot dispute the title of his principal and a tenant cannot dispute the title of his landlord during the subsistence of tenancy.

C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. C claims adversely to A, and therefore, no inter pleader suit can file. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied, and C alleges the contrary. B may institute an interpleader suit against A and C. C claims through A and , therefore, it can file.

Procedure in Inter pleader Suit: Order XXXV provides the procedure for the institution of an interpleader. Plaint in Interpleader Suit In every interpleader suit the plaint in addition to other statements necessary for plaint, state —.

Payment of thing claimed into Court: The Court may order the plaintiff to place the thing claimed in the custody of the Court when the thing is capable of being paid into Court or placed in the custody of Court S and provide his costs by giving him a charge on the thing claimed. Procedure where defendant is suing plaintiff Stay of Proceedings: Where any of the defendants in an interpleader suit is actually suing the plaintiff in respect of the subject matter of such suit, the Court in which the suit against the plaintiff is pending shall, on being informed by the Court in which the interpleader.

U suit has been instituted, stay the proceeding as against him; and his cost in the suit so stayed may be provided for in such suit; but if, and in so far as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader suit.

K Procedure of First Hearing: At the first hearing, the Court may- m. Declare that the plaintiff is discharged from ali liabilities to the defendants in respect of the thing. A M yn a it may adjudicate the title to the thing claimed.

Where the Court finds that the admission of the parties or other evidence enable the Court to do so,. Where the admissions of the parties do not enable the Court so to adjudicate the Court may direct -. K a that an issue or issues between the parties be framed and tried, and b that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner.

What is plaint? What are the necessary particulars to be given in a plaint? On what grounds a plaint can be rejected? Who is an indigent person? Discuss the mode for the institution of the suit as an indigent person. What are the provisions for institution of a suit by or against the Government or public offices in their. What is an Interpleader suit? Explain the procedure for institution of an Interpleader suit?

S f Parties to suit. Distinguish between the following- a Legal and Equitable Set-off. U b Counter claim and Set off. Order I, Rule 7. Order I, Rules 2 and,3-A. Rule 4 b 6. Rule 9 m 7. Order I, Rule 10 a yn A 8. Rule 10 1. Rule 8 2 Rule 2 3 Rule 2 2 Rule 2 and 6 Cognizance not barred: Court to try all civil suits unless barred- '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.

Suits expressly barred: A suit is said to be "expressly barred" when it is barred by any enactment for the time being in force18 by a competent Legislature, while keeping itself within the field of legislation and without contravening any provision of the constitution.

Every presumption should be made in favour of the jurisdiction of the Civil Court and the provisions of the exclusion of the jurisdiction of a 19 Court must be strictly construed. It is well settled that a civil court has inherent power to decide its own 20 jurisdiction. The matters falling within the exclusive jurisdiction of the Revenue Courts or under the Criminal Procedure Code or the matters dealt with by special tribunals, under the relevant statutes; eg.

Suits impliedly barred: A suit is said to be "impliedly barred" when it is barred by general principle of law. Where an Act creates an obligation and enforces the performance in a specified manner, that performance cannot be enforced in any other manner, e.

Thus, no suit shall lie for recovery of costs incurred in Criminal prosecution or for enforcement of a right upon a contract hit by Section 23 of Indian ContractAct, or against any Judge for acts done in the course of his duties. ACivil court has no jurisdiction to adjudicate upon disputes of political nature. Provides No court shall proceed with the trial' of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any other Court beyond the limits of India established or constituted by the Central Government and having like jurisdiction or before he Supreme Court.

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The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.

The object of S. The section intends to prevent a person from multiplicity of proceedings and to avoid a conflict of decisions. This section will apply where the following conditions are satisfied: Where there are two suits, one previously instituted and the other subsequently instituted. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.

Both the suits must be between the same parties or between their representatives. The previously instituted suit must be pending: The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit. Same Title: Such parties must be litigating under the same title in both the suits. Provisions are Mandatory: The provisions contained in section are mandatory and no discretion is left with the Court. The order staying proceedings in the subsequent suit can be made at any stage.

A suit pending in a Foreign Court: Decree passed in contravention of S. It is the trial and not the institution of the subsequent suit which is barred under this section and therefore, a decree passed in contravention of S. Consent of parties: The provision of Section 10 is a rule of procedure which can be waived by a party and where the parties waive their right and expressly ask the Court to proceed with the subsequent suit, they cannot afterwards challenge the validity of the proceedings.

Therefore, the expression 'Res-judicata'' means "a thing or matter already adjudged or adjudicated or decided".

Res-judicata means "a final judicial decision pronounced by a judicial tribunal having competent jurisdiction 24 over the cause or matter in litigation, and over the parties thereto. When a matter- whether on a question of fact or a question of Law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed or no appeal lies, neither party will be allowed in a future suit or proceeding between 26 the same parties to canvass the matter again.

The expression "Former Suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. For the purposes of this section the competence of Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court. The mater above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in suit. Any relief claimed in the plaint, which is not expressly granted by the degree, shall, for the purposes of this section be deemed to have been refused. Explanation- VI: Where persons litigate bona fide in respect of a public right or of a private right claimed, in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating.

The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree" question arising in such proceeding and a former proceeding for the execution of that decree.

An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit in which such issue has been subsequently raised," Object: The doctrine of Res Judicata is based upon the following four maxims- a.

Nemo debet lis vexari pro una et eadem causa: Interest republicae ut sit finis Iitium: Res judicata pro veritate occipitur: Res judicata pro veritate habetur: To understand the doctrine of Res-judicata, it is essential to know the meaning of the following terms- Matters in Issue: The expression 'matter in issue' means the right litigated between the parties.

The matters in issue may be: Actually in issue Matters directly and Constructively in issue Substantially in issue Matters in issue: Matters collaterally and incidentally in issue Directly and substantially in issue: A matter cannot be said to be directly in issue if the judgment stands whether the fact exists or does not exist.

A matter can be said to be substantially in issue if it is of importance for the decision of a case. In order that a matter decided in a former suit may operate as res judicata in a subsequent suit, it must have been directly and subsequently in issue in the former suit. Asues B for rent due. The defence of B is that no rent is due. Here the claim to rent is the matter in respect of which the relief is claimed.

The claim of the rent is, therefore a matter, directly and substantially in issue.

Actually in issue: III Amatter is actually in issue when it is in issue directly and substantially and a competent Court decides it on merit. Amatter is actually in issue when it is alleged by one party and denied or admitted by the other.

III Constructively in issue: IV A matter can be said be constructively in issue when it "might and ought" to have been made a ground of defence or attack in the former suit.

IV Collaterally or incidentally in issue: Acollateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a matter in respect of which no relief is claimed and yet it is put in issue to enable the Court to adjudicate upon the matter which is directly and substantially in issue. Decisions on the matters collateral and incidental to the main issues in the case will not operate as res-judicata.

A sues B for the rent due: B pleads abatement of the rent on the ground that the actual area of the land is less than that mentioned in the lease deed. The Court, however, finds the area greater than that shown in the lease deed. The finding as to the excess area, being ancillary to the direct and substantial issue, is not res judicata.

It was held in re Gangabai Vs Chhabubai AIR SC 20 that in order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata.

The question whether a matter was directly and substantially in issue or merely collaterally or incidentally in issue must be decided on the facts of each case.

In Vithal Yashwant v. Shikandarkhan,AIR SC the Court held that "It is well settled that if the final decision in any matter at issue between the parties is based by a Court on its decision on more than one point - each of which by itself would be sufficient for the ultimate decision- the decision on each of these points operates as res judicata between the parties. A sues B i - for a declaration of title to certain lands; and ii - for the rent of those lands.

B deniesA's title to the lands and also contend that no rent is due. In this case, there are two matters in respect of which relief is claimed, viz. Both these matters are, therefore, directly and substantially in issue. Conditions to apply S. Matter in Issue: The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.

Same Parties: The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Such parties must have been litigating under the same title in the former suit.

Competent Court: The court which decides of the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequent raised.

Final decision of former suit: The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. Constructive Res-Judicata Prayer for the same relief in the subsequent suit The doctrine of constructive Res-judicata is provided in the Explanation IV of section 11 which explains that where the parties have had an opportunity of controverting a matter, that should be taken to be the same S tu d yn a m a.

The object of Expl. IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence which were open to him. The rule of Constructive res judicata is an artificial form of res judicata, and provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter.

That clearly is opposed to consideration of Public Policy. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by Courts would also be materially affected.

In Forward Construction Co. IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it can not be said to have beer actually heard and decided. It could only be deemed to have been heard and decided. In Workmen, C. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided".

Afiles a suit against B for declaration that he is entitled to certain lands as heir of C. The suit is dismissed. The subsequent suit, claiming the same property on the ground of adverse possession, is barred by constructive res judicata. A files a suit against B to recover money on a pro-note.

B contends that the promissory note was obtained from him by undue influence. The objection is overruled and suit is decreed. B cannot challenge the promissory note on the ground of coercion or fraud on subsequent suit, in as much as he ought to have taken that defence in the former suit.

As a mortgagor A sues B for redemption of certain property alleging that he has mortgaged it with possession to B. The mortgage is not proved and the suit is dismissed. Afiles another suit against B for possession of the same property claiming to be the owner thereof. The suit is not barred. A sues B for a declaration that he is entitled to certain property as an heir of X. A files another suit for injunctions on the ground that he had become an owner of the property by adverse possession.

This ground was available to him even at the time of previous suit but was not taken at that time. The subsequent suit is barred. Section 11 is not exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the letter of Law. The principle of res judicata is convinced in the larger public interest, which requires that all litigation must, sooner than later, come to an end.

Waiver of Plea of res-judicata: The plea of res judicata is not one, which affects the jurisdiction of the Court. The doctrine of res jUdicata belongs to the domain of procedure and the party may waive the plea of res judicata. Similarly, the Court may decline to go into the question of res judicata on the ground that it has not been properly raised in the proceedings or issues.

Res-judicata between co-defendants: Amatter may operate as res-judicata between co- defendants and co- plaintiffs if the following conditions are satisfied: There must be conflict of interest between the co-defendants.

It must be necessary to decide that conflict in order to give relief to the plaintiff. The question between the co- defendants must have been finally decided; and d. The co- defendants were necessary or proper parties in the former suit. The decision regarding the construction of the will on rival claims of the defendants will operate as res-judicata in any subsequent suit by any of the defendants against the rest.

Distinction between Res Sub — Judice S. The principle of res- judicata applies 28 in between two stages in the same Iitigation ". It is well settled that principle of res-judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings.

Once an order made in the course of a proceeding becomes final, it would be binding at the 29 subsequent stage of that proceeding ….. Issue Estoppel: An issue or fact of law which has been determined in an earlier proceeding cannot be raised in a subsequent proceeding. The court has few inherent power in the interest of finality not to allow a particular issue which has already been litigated to be reopened.

Res-judicata Res Sub-Judice 1. It applies to a matter adjudicated upon Res- judicatum 2. It bars the trial of a suit or an issue, which has been decided in a former suit. It applies to a matter pending trial sub-Judice It bars trial of a suit which is pending decision in a previously institute suit. Res-judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of issue estoppel is invoked against the party.

If such an issue is decided against him, he would be 30 estopped from raising the same in the later proceeding. Criminal Proceedings: The doctrine of res-judicata is of universal application, which applies even to criminal proceedings.

Once a person is acquitted or convicted by a competent criminal court, he cannot once again, be tried for the same offence. Writ Petitions: The General principle of res-judicata applies even to Writ petition filed under Article 32 of the Constitution.

It would not be open to a party to ignore the judgment passed on a writ petition filed by a party under Article , which is considered on merits as a contested matter and is dismissed, and again move the High Court under Article or the Supreme Court under Article 32 on the same facts and for obtaining the same or 31 similar orders or writs.

Writ Petition and Constructive Res-Judicata: The question whether the rule of constructive res-judicata can be applied to writ petitions, was first answered by the Hon'ble Supreme Court in Amolgamated Coalfields Ltd. It held that "In our opinion, constructive res-judicata which is a special and artificial form of res-judicata enacted by Section 11 of the code should not generally be applied to writ petitions filed underArticle 32 orArticle AIR SC, the Court had decided that the principle of constructive res-judicata 32 33 also applies to writ petitions.

The principle of res-judicata constructive res-judicata is not applicable to the writ petition of Hebeas Corpus. Res-judicate and Estoppel: Res-judicata is really estoppel by verdict or estoppel by judgment record. The rule of constructive res-judicate is nothing else but a rule of estoppel. Even then, the doctrine of res- judicata differs in essentials particulars from the doctrine of estoppel. It results from a decision of the Court. Estoppel flows from the act of parties.

The rule is based upon public policy, viz that there should be an end to litigation. It bars multiplicity of suits. It proceeds upon the doctrine of equity; that he who by his conduct, has induced another to alter his position to his disadvantage cannot turn round and take advantage of such alteration of the other's position.

Affects the jurisdiction: It ousts the jurisdiction of a court to try a case and precludes an enquiry in limine. In other words, estoppel prevents multiplicity of representations. Stop the Party: It prohibits a man averring the same thing twice in successive litigations. It is only a rule of evidence and shuts the mouth of a party. This rule presumes conclusively the truth of the decision in the former suit. It binds both the parties to a litigation. Estoppel prevents him from saying one thing at one time and the opposite at another.

The rule of estoppel prevents a party from denying what he has once called the truth. The term foreign Court has been defined in s. The judgment of a foreign Court is enforced on the principle that where a Court of Competent Jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim.

Section 13 embodies the principle of res-judicata in foreign judgments. This provision embodies the principle of private International Law that a judgment delivered by a foreign Court of competent jurisdiction can be enforced in India. A sues B in a foreign Court. The judgment will operate as a bar to a fresh suit byAagainst B in India on the same cause of action.

Conclusive Nature: Section 13 of the Code provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between- parties under whom they or any of them claim litigating under the same title except as specified in clauses a to f of Sec.

When Foreign Judgment Not Binding: A foreign judgment must be pronounced by a Court of competent jurisdiction and must be by a Court competent both by the law of the State which has constituted it and in an International sense and it must have directly adjudicated upon the 'matter' which pleaded as res- S tu d yn a m a.

Only the judgment and not the reasons for the judgment is conclusive. Foreign Judgment Not on Merits: A judgment is said to be given on merits when, after taking evidence and application of mind, the Judges decide the case one-way or the other.

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The dismissal of suit for default of appearance or non-production of the document by the plaintiff or passing of decree due to default of defendant in furnishing security are not on merits and can not be conclusive. The mistake of International or Indian Law must be apparent on the face of the proceedings. In Narsimha Rao V. Venkata Lakshmi 3 SCC, the Court held that "when a foreign judgment is founded on a jurisdiction or on a ground not recognized by International or Indian Law, it is a judgment which is in defiance of the law.

Hence, it is not conclusive of the matter adjudicated therein and, therefore, not enforceable in this country. Foreign Judgment Opposed to Natural Justice: The judgment pronounced by a Foreign Court must e after the observation of the judicial process, i. The judgment to be conclusive must be composed of impartial persons, act fairly, without bias, and in good faith; it must give reasonable notice to the parties to the dispute and to afford each party adequate opportunity of presenting his case.

Foreign Judgment Obtained by Fraud: It is the fundamental Principle of Private international Law that a Foreign Judgment is obtained by fraud, it will not operate as res-judicata. It is the settled preposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law.

It can be challenged in any Court even in collateral proceedings. It is implicit that the foreign law and foreign 35 judgment would not offend against our public policy. Thus, a foreign judgment. Submit Your Reply.

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