CIVIL PROCEDURE CODE- I

NATIONAL LAW UNIVERSITY, ODISHA

SCHEME OF
CIVIL PROCEDURE CODE

UNDER

THE

GUIDANCE

OF

MR. SWAYAMBHU MISHRA

ASSISTANT

PROFESSOR

(LAW)

NATIONAL LAW UNIVERSITY, ODISHA

THIS

PROJECT IS

AUTHORED

BY-

DIKSHA GOYAL (2011/ BBA LLB/ 020)

INTRODUCTION
CPC: PROCEDURAL LAW
As we all know that lex loci i.e., laws of the land can be divided into two
heads:
Substantive law; and
Procedural or Adjective law.
Whereas substantive law determines rights and liabilities of the parties
concerned, procedural law prescribes the procedure and machinery for
the enforcement of those rights and liabilities. There is at the outset a
vital and essential distinction between substantive and procedural law.
The function of substantive law is to define the nature and extent of legal
duties. The function of procedural law is to provide the machinery or the
manner in which the legal rights or status and legal duties may be
enforced or recognized by a court of law or other recognized or properly
constituted tribunal.1
The Code of Civil Procedure is an adjective or a procedural law. It neither
creates nor takes away any right. (Ghanshyam Dass v. Dominion of
India, (1984) 3 SCC 46 (56): AIR 1984 SC 1004: 1984 (32) BLJR 222:
(1984) 1 SCALE 528: (1984) 3 SCR 229: 1984 (16) UJ 604 (SC) ). It deals
with matters related to machinery for the enforcement of substantive
rights, as contra-distinguished from the substantive rights themselves. As
to the latter rights, one must look elsewhere, that is, to the statute law or
the general principles of law.

HISTORY

1 Halsbury's Law of England, 4th Edn., Vol. 37, pp. 18-19, para 10.

The history of Civil Procedure begins with the year 1859, when the first
Uniform Code of Civil Procedure was enacted. Before that, there was no
uniformity in the law of Civil Procedure applicable to the whole of the
country. The maiden effort in this direction of evolving a uniform
procedure was made when Sir Charles Wood, the then President of the
Board for the Affairs of India instructed the Second Law Commission of
India to address themselves for preparing a Code of Simple and Uniform
Procedure applicable to all the Courts of the country. The first Uniform
Code of Civil Procedure was enacted in the year 1859. However, the
Code of Civil Procedure, 1859 was not applicable to the Supreme Courts
in the presidency towns and to the Presidency Small Causes Courts. Few
amendments were made therein and the Code was applied to the whole
of British India, but there were many defects in it, and therefore, a new
Code was enacted in 1877. This Code was again replaced in the year
1882 for the similar reasons. Finally, the present Code of Civil Procedure
was enacted in the year 1908.
Thus the Code of Civil Procedure consolidates and amends the laws
relating to the procedure of the courts of civil judicature in India. Further
the Code applies to the procedure of all courts of civil judicature, except
that it does not affect any special or local law or any special jurisdiction
or power conferred or any special form of procedure prescribed by or
under any other law for the time being in force.
Where there is a conflict between this Code and a special law, then the
special law prevails over this Code on the principle that "the special law
prevails over the general law".

JURISDICTION

OF

CIVIL COURTS

In general sense and also in legal diction, jurisdiction means "to hear and
determine a cause applying judicial powers in relation to it." So
jurisdiction can be termed as to decide a particular causes of
action/dispute of civil nature where the competent court having right to

hear and determine it, disposes of the issue/dispute acting under its
judicial powers.
In case of Official Trustee v. Sachindra Nath Chatterjee, ( AIR 1969
SC 823: (1969) 3 SCR 92), after referring to various decisions, the
Supreme Court observed, "jurisdiction must include the power to hear
and decide the issue/ dispute, the authority to hear and decide the
particular controversy that has arisen between the parties."
Section 9 - Courts to try all suits
"The Courts shall (subject to the provisions herein contained) have
jurisdiction to try all suits of civil nature excepting suits of which their
cognizance is expressly a impliedly barred".
Explanation I.-A suit in which the right to property or to office is contended is a suit of
civil nature, notwithstanding that such right may depend entirely on the
decision of the questions as to religious rites or ceremonies.
Explanation II.-For the purposes of this section, it is immaterial whether or not any fee is
attached to the office referred in Explanation I or whether or not such
office is to a particular office.
Section 9 of the Code of Civil Procedure, 1908 confers the power upon
the civil court to try all suits of civil nature unless barred by the express
provisions. For the adjudication of such suits of civil nature as described
under section 9, it is not the status of the parties to the suit, but the
subject-matter of it, which determines whether or not the suit is of civil
nature.
Again the parties are not at liberty to choose or by mutual consent to
diminish the jurisdiction of a competent court. The principle is wellsettled that consent cannot confer or take away jurisdiction of a court.
KINDS

OF

JURISDICTION

Jurisdiction of a Court may be classified under the following categories:

(1) Territorial or local jurisdiction.-Every court is competent to adjudicate the matters/issues falling under
the local limits of its jurisdiction. For example, the District Judge has to
exercise the jurisdiction within his district and not outside it unless
barred by pecuniary jurisdiction. And the High Court has jurisdiction
over the issues relating to the concerned state.
For the purpose of invoking the jurisdiction of the Court only because
two causes-of-action joined in terms of the provisions of the Code of Civil
Procedure, 1908, the same would not mean that thereby the jurisdiction
can be conferred upon a court which had jurisdiction to try only the suit
in respect of one cause-of-action and not the other. Recourse to the
additional forum, however, may be taken if both the causes of action arise
within the jurisdiction of the court which otherwise had the necessary
jurisdiction to decide all the issues; (Dhodha House v. S.K. Maingi,
(MANU/SC/2524/2005 : AIR 2006 SC 730: 2006 (1) ALD 138 (SC): 2006
(1) AWC 864 (SC): 2006 (1) BLJR 29: JT 2006 (1) SC 123: (2006) 1 MLJ
36

(SC):

2006

(32)

PTC

(SC):

RLW

2006

(1)

SC

543:

MANU/SC/2524/2005 : (2006) 9 SCC 41.)

Section 16 of the Code deals with the territorial jurisdiction of the Courts
in regard to suits mentioned in Clauses (a) to (f) of the said section.
Clauses (a) to (e) deal with the immovable property and Clause (f) deals
with an aspect of movable property. The jurisdiction is to be decided by
considering the averments made in the plaint (Praking v. State Bank of
Indore; AIR 1996 MP 28). If at the time of institution of suit, a Court
has territorial jurisdiction over a property, then transfer of such property
out of local jurisdiction during the pendency of suit, does not divest the
jurisdiction of such Court (In re Distt. Judge; AIR 1971 Ori 89). The
object of the section is that the Court who entertains a controversy
regarding a property must be able to give effective Judgment. The

section embodies the already existing principles of common law.

Normally, the territorial jurisdiction of a Court has to be ascertained by
reference to the provisions of Sections 16 to 20, Code of Civil Procedure,
but by reason of the express provision made in Section 120, Code of Civil
Procedure, the provisions of Sections 16, 17 and 20 do not apply to this
Court in the exercise of its ordinary original civil jurisdiction. The
jurisdiction of the Bombay High Court to decide a suit in the exercise of
its original civil jurisdiction is required to be ascertained under Clause
12, Letters Patent (Fazlehussein Haiderbhoy v. Yusufally Adamji;
AIR 1955 Bom 55). Section 16 has overriding effect on Section 20 as
ultimately if relief is granted to the Respondent, he has to work out his
remedy against the immoveable properties (Shree Shanthi Homes
Private Limited v. Cref Finance Limited; AIR 2002 KAR 252.).
Section 20 as its terms indicate is subject to limitation of Section 16, the
proviso whereof provides that where the relief sought for can be obtained
through the personal obedience of the Defendant, the suit can be
instituted either in the Court within whose jurisdiction the property is
situate or in the Court where the Defendant resides or carries on
business for gain (S.K.Jwala v. Lama Helem Ian; AIR 1978 Cal 247).
Section 16 thus, recognizes a well established principle that actions
against res or property should be brought in the forum where such res is
situate. A Court within whose territorial jurisdiction the property is not
situated has no power to deal with and decide the rights or interests in
such property. In other words, a Court has no jurisdiction over a dispute
in which it cannot give an effective Judgment. Proviso to Section 16, no
doubt, states that though the Court cannot, in case of immovable
property situate beyond jurisdiction, grant a relief in rem still it can
entertain a suit where relief sought can be obtained through the personal
obedience of the Defendant. The proviso is based on well known maxim
equity acts in personam, recognized by Chancery Courts in England.
Equity Courts had jurisdiction to entertain certain suits respecting
immovable properties situated abroad through personal obedience of the
Defendant. The principle on which the maxim was based was that Courts

could grant relief in suits respecting immovable property situate abroad

by enforcing their Judgments by process in personam, i.e. by arrest of
Defendant or by attachment of his property (Suresh Jain v. Dinesh
Kumar; AIR 2008 Delhi 127).
(2) Pecuniary jurisdiction.-The Code provides that a court will have jurisdiction only over those
suits, the amount or value of the subject matter of which does not
exceeds the limit of the jurisdiction. Thus, a Presidency Small Causes
Court cannot entertain a suit in which the amount claimed exceeds Rs.
1000.
(3) Jurisdiction as to subject-matter.-A court cannot entertain and adjudicate an issue which does not fall
within its competency as to competency over the matter. Thus, the
Presidency Small Causes Court has no jurisdiction to try suit, for specific
performance of a contract, partition of immovable property for closure or
redemption of a mortgage, etc.
Similarly, in respect of testamentary matters, divorce cases, probate
proceedings, the Court of District Judge has exclusive jurisdiction.
(4) Original and appellate jurisdiction.-In the exercise of original jurisdiction, a court entertains and decides
suits and in its appellate jurisdiction, it entertains and decides appeals.
General Clauses Act defines Principal civil court of original jurisdiction as
the court of District Judge. They are those courts which are the highest
courts or principle courts of civil matters in a district. But certain High
Courts also possess the original jurisdiction. These High Courts are as
follows:
1.
2.
3.
4.

Calcutta High Court.

Madras High Court.
Bombay High Court
Delhi High Court.

These courts have original Jurisdiction because at the time when there
were no district courts these presidency courts used to function. Still,
they continue to retain that same character. Delhi High Court is the only
exception of same. High courts also have appellate jurisdiction.

INSTITUTION

OF

SUIT

Section 26 and Order IV deals with institution of suits. Where Order I

provides for parties to the suit. It also provides for addition, deletion and
substitution of parties, joinder, non-joinder and mis-joinder of parties and
also objection as to non-joinder and misjoinder of the parties.
Order II lays down rules relating to frame of suit, splitting and joinder of
claims, joinder of cause-of-action and objection as to misjoinder.
Every suit must be instituted by the presentation of a plaint in duplicate
or in such manner as may be prescribed by the Code of Civil Procedure,
1908 by the plaintiff himself or by his pleader or by his agent or
recognized

person.

Therefore,

generally

proceeding

does

not

commence until a plaint is not filed by a person in a court of competent

jurisdiction.
Parties to the Suit - Order I
Order I is about the subject of parties to suits and about the joinder, misjoinder and non-joinder of parties and to some extent, with the joinder of
cause-of-action.
Joinder of parties:
All persons may be joined in one suit as plaintiffs where (a) any right to
relief in respect of, or arising out of, the same act, or transaction or
series of acts or transactions, is alleged to exist in such persons whether
jointly severally or in alternative; and (b) if such persons brought
separate suits, any common question of law or fact would arise. But when
it appears to the court that any joinder of plaintiffs may embarrass or

delay the trial of the suit, the court may put the plaintiffs to their election
or order separate trials or make such orders as may be expedient.
Joinder of Defendants - Order I, rule 3
All persons may be joined in one suit as defendants where-(a) any right to relief in respect of, or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist against
such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common
question of law or fact would arise.
In case of Govindaraju v. Alagappa, MANU/TN/0160/1926 : AIR
1926 Mad 911: (1926) 51 MLJ 194, while interpreting the two basic
conditions for Order III, the court held that, the word 'and' makes it clear
that both the conditions are cumulative and not alternative. So for
inducing the provisions of Order III, both the conditions should be made
out explicitly. It says that: All persons may be joined in one suit as
defendant if the following two conditions are satisfied:
(1) the right to relief alleged to exist against them arises out of the same
out or transaction; and
(2) the case is of such a character that, if separate suit is brought against
such persons, any common question of law or fact would arise.
Necessary and Proper Party:
A "necessary party" is one whose presence is indispensable for
proceeding with the suit and for final decision thereof, on the other hand
"proper party" is one in whose absence an effective order can be passed,
but whose presence is required for complete and final decision of the
suit.
In case of Hardeva v. Ismail, MANU/RH/0036/1970 : AIR 1970 Raj
167 two tests have been mentioned for determining the question
whether a particular party is a necessary party to a proceeding:

(1) there must be a right to some relief against such party in respect of
the matter involved in the proceeding in question; and
(2) it should not be possible to pass an effective decree in absence of
such a party.
Order I, rule 8 provides that there are numerous persons having the
same interest in one suit, one or more or such persons may with the
permission of court sue on behalf of or for the benefit of all persons so
interested.

(Bhupendra

Singh

Babera

v.

Municipal

Council,

MANU/CG/0051/2001 : AIR 2002 Chh 7.)

Mis-joinder or non-joinder of parties (Order I, rule 9)
Order I, rule 9 says: "No suit shall be defeated by reason of the
misjoinder or non-joinder of parties, and the court in every suit may deal
with the matter in controversy so far as the rights and interests of the
parties actually before it. Provided, that nothing in this rule shall apply to
non-joinder of a necessary party.
So, where a person, who is necessary or proper party to a suit has not
been joined as a party to the suit, it is a case of non-joinder. Conversely, if
two or more persons are joined as plaintiffs or defendants in one suit in
contravention of Order I, rules 1 and 3 respectively and they are neither
necessary party nor proper party, it is a case of mis-joinder of the parties.
Order I, rule 13, provides that all the objections on the ground of
nonjoinder mis-joinder of parties shall be taken at the earliest possible
opportunity and, in all cases where issues are settled, at or before such
settlement, unless the ground of objection has subsequently arisen, and
any such objection not so taken shall be deemed to have been waived.

Non-joinder (meaning)
Where a person who is a necessary party to a suit has not been joined as
a party to the suit, it is a case of non-joinder. A suit should not be
dismissed on the ground of non-joinder. But if the decree cannot be

effective without the absent parties, the suit is liable to be dismissed. In

case where the joinder of a person as a party is only a matter of
convenience, the absent party may be added or the suit may be tried
without him.
Mis-joinder
Where there are more plaintiffs than one and they are joined together is
one suit, but the right to relief in respect of, or arising out of, the same
act or transaction or series of acts or transactions alleged to exist in such
persons does not arise out of the same act, or transaction and if separate
suits were brought, no common question of law or fact would arise, it is
case of mis-joinder of plaintiff. Misjoinder of defendants takes place in
reverse position.
In case of B.P. Rao v. State of Andhra Pradesh, 1985 Supp (1) SCC
432: MANU/SC/0330/1985 : AIR 1986 SC 210: 1985 (51) FLR 501:
1985 Lab IC 1555: (1985) 2 SCALE 256: (1985) Supp 2 SCR 573, it
was held by the Supreme Court that, where the affected persons had not
been joined as parties to the petition, and some of them only were joined,
the interests of the persons who were not joined as parties were identical
with those persons who were before the court and were sufficiently and
well represented, and therefore, the petition was not liable to be
dismissed on that ground alone.
Striking Out, Adding or Substituting Parties - Rule 10
Order I, rule 10, provides for the procedure for striking out, adding or
substituting the parties to the suit. To bring a case within this sub-rule,
the following two conditions must be satisfied-(1) The suit has been filed in the name of a wrong person as plaintiff by a
bona fide mistake; and
(2) The substitution or addition of the plaintiff is necessary for the
determination of the real matter in dispute. Provisions for striking out or

adding parties are governed by sub-rule (2) of rule 10 of Order 1. It lays

two grounds for enforcement of the provisions-(1) such person ought to have been joined as a plaintiff or defendant, and
is not so joined; or
(2) without his presence, the question involved in the suit cannot be
completely decided.
Such amendments may be allowed by the court at any stage of suit or
even at the appellate stage and upon such terms and conditions as it
thinks just. No person can be added as a plaintiff without his consent.
In Md. Sabir Ansari v. Sada Nanda Mandal, MANU/JH/0619/2009 :
AIR 2010 Jhar 43, the present petitioner is having an agreement to sale
in his favour for part of the land involve in the Title Suit. Therefore, he is
claiming right, title and interest upon the land which is a suit property of
the said suit. He was also filed as many as four different Title Suits for
specific performance against some of the respondents on the basis of
agreement to sale. All these agreements were before the Trial Court in
different Title Suits. This aspect of the matter has been lost sight of by
the Trial Court while dismissing the application preferred by the present
petitioner. Without joining the present petitioner, no effective decree
could be passed by the Trial Court after arriving at conclusion of the
dispute between the parties. The petitioner ought to have joined as a
defendant. Chances of success of the petitioner ought not to have been
evaluated at this stage. The Trial Court has to look at the fact that if the
applicant can show a fair semblance of the title or interest, he can be
impleaded as a party defendant.
In Babulal Khandelwal v. Balkishan D. Sanghvi, AIR 2009 SC 67,
the Court while appointing an Administrator in an administration suit to
administer the Estate of the decease, who dies intestate, may be required
to examine transactions involving the properties of the Estate in order to
determine the assets of the Estate as on the date of death of the owner

thereof. Consequently, the impleadment of persons who may be involved

in some transaction on the other concerning the Estate of the deceased,
may become necessary for a decision in an administration suit.
Therefore, the High Court had not committed any error in allowing the
amendments to the plaint for impleading the appellants as parties to the
administration suit filed by the respondent and for scrutinizing the
transactions which were alleged to have been concluded by the parents
of the respondents during their lifetime.
In Laxmi Shankar v. Yash Ram Vasta, MANU/SC/0254/1993 : AIR
1993 SC 1587: 1993 (2) ALT 9 (SC): (1994) 1 GLR 25: (1993) 1
SCALE 26: MANU/SC/0254/1993 : (1993) 3 SCC 49, Supreme Court,
after relying upon the judgment of Pal Singh v. Sunder Singh,
MANU/SC/0404/1989 : AIR 1989 SC 758: ]T 1989 (1) SC 67: (1989)
1 SCALE 36: MANU/SC/0404/1989 : (1989) 1 SCC 444: (1989) 1
SCR 67: 1989 (1) UJ 316 (SC), wherein it was held that when other coowner did not object to eviction, one co-owner could maintain eviction
petition in the absence of other co-owner. Similarly in A. Vishwanath
Pillai v. Special Tahsildar for Land Acquisition No. IV, AIR 1991 SC
1966, it was held that co-owner could successfully file suit and recover
the property against stranger, held that in the absence of necessary proof
it cannot be held that suit is not maintainable on the ground of nonjoinder of necessary party.
'Necessary party' and 'Proper party': Distinction
There is essential distinction between 'Necessary Party' and 'Proper
Party'. A 'Necessary Party' is one whose presence is indispensable or
against whom relief is sought and without whom no effective order can
be passed. A 'Proper Party is one in whose absence an effective order can
be passed but whose presence is necessary for complete and final
decision on question involved in proceedings. General rule is that no suit
can be decided without necessary parties to it. However, rule 10 of Order

I of the Code of Civil Procedure, 1908, provides for substitution or

addition of parties to suit on either of the following two grounds:
(i) He ought to have been joined as plaintiff or defendant and is not so
joined; or
(ii) without his presence, the question/issue involved in the suit cannot be
completely decided.

PLEADINGS ( ORDER 6)
Pleadings are statements in writing of each party containing contentions
of each party and detail of his case. Pleading is defined in order 6 of the
code of civil procedure as plaint or written statement.
Plaint ( Order 7)
Plaint is the statement of claim in writing and filed by the plaintiff, in
which he sets out his cause of action with all necessary particulars. Plaint
is the first process in inferior court in the nature of an original writ,
whereby a party seeks remedy from court for the redressal of his
grievances.
Written Statement (Order 8)
Written statement is the statement of defence in writing and filed by the
defendent, in which he deals with every material fact alleged by the
plaintiff in the plaint. Defendant can state any new facts, which he
considers to be in his favour, and can raise legal objections to the merits
of the case, prescribed by various laws e.g plea of limitation , plea of
estoppel, plea of res-judicata etc.
Certain features of Written Statement are as follows:
1. Limitation
Court has power to condone non filing of written statement within 90
days. Though a defendant is required to file written statement within 30

days after receipt of summons and though the court can extend the time
till 90 days, the court is not divested of any power to fix further time for
filing the written statement. It is well settled that this cardinal principle
of interpretation of law with an enactment has to be read as a whole and
then the entire section has to be read and thereafter the Act has to be
interpreted section by section. One Rule or one Section in the enactment
cannot be a guiding factor for arriving at the intendment of the
legislature. The very fact that Rule 10 is re-introduced by Act 22 of 2002
by the Parliament would show that the Parliament never intended the
Civil Court to pronounce judgment immediately after the failure on the
part of the defendant to file written statement within 90 days.
2. New Facts must be specially pleaded
The defendant must raise by his pleading all matters which show the suit
not be maintainable, or that the transaction is either void or voidable in
point of law, and all such grounds of defence as, if not raised, would be
likely to take the opposite party by surprise, or would raise issues of fact
not arising out of the plaint, as, for instance, fraud, limitation, release,
payment, performance, or facts showing illegality. The effect of the rule
is, for reasons of practice and justice and convenience,to require the
party to tell his opponent what he is coming to the Court to prove,If he
does not do that, the Court will deal with it in one of two ways.
It may say that it is not open to him, that he has not raised it and will not
be allowed to rely on it; or it may give leave to amend by raising it and
protect the other party. If necessary, by letting the case stands over. The
rule is not one that excludes from the consideration of the Court the
relevant subject-matter for decision simply on the ground that it is not
pleaded. It leaves the party at the mercy of the Court and the Court will
deal with him as is just. The effect of the rule is, for reasons of practice
and justice and convenience, to require the party to tell his opponent
what he is coming to the court to prove.
3. Failure to submit written statement

R.10 speaks of procedure when party fails to present written statement

called for by Court. Where any party from whom a written statement is
required under rule 1 or rule 9 fails to present the same within the time
permitted or fixed by the Court, as the case may be, the Court shall
pronounce judgment against him, or make such order relating to the suit
as it thinks fit and on the pronouncement of such judgment a decree
shall be drawn up. In Modula India v. Kamakshya Singh 1988 SCR
Supl. (3) 333 , explaining the ambit and scheme of Rules 1, 5 and 10 of
Order 8, the Apex Court observed: "Rule 1 merely requires that the
defendant should present a written statement of his defence within the
time permitted by the Court. Under Rule 5(2), where the defendant has
not tiled a pleading it shall be lawful for the Court to pronounce
judgment on the basis of the facts contained in the plaint except against
a person under disability but the court may at its discretion require any
such fact to be proved. Again under Rule 10 when any party from whom
a written statement is required fails to present the same within the time
permitted or fixed by the Court, the Court shall pronounce judgment
against him or make such order in relation to the suit as it thinks fit`. It
will be seen that these rules are only permissive in nature. They enable
the Court in an appropriate case to pronounce a decree straightway on
the basis of the plaint and the averments contained therein. Though the
present language of Rule 10 says that the Court shall pronounce
judgment against him, it is obvious from the language of the rule that
there is still an option with the Court either to pronounce judgment on
the basis of the plaint against the defendant or to make such other
appropriate order as the Court may think fit. Therefore, there is nothing
in these rules, which makes it mandatory for the Court to pass a decree
in favour of the plaintiff straightway because a written statement has not
been filed.
4. Set off
Set off is reciprocal acquittal of debts. In an action to recover money setoff is a cross-claim for money by the defendant, for which he might

maintain an action against the plaintiff and which has the effect of
extinguishing the plaintiffs claim pro tanto. Where in a suit for recovery
of money by the plaintiff, the defendant finds that he has also a claim of
some amount against the plaintiff, he can claim a set-off in respect of the
said amount. The doctrine of set-off may be defined as "the extinction of
debts of which two persons are reciprocally debtors to one another by
the credits of which they are reciprocally creditors to one another".
Set-off is essentially of two types: (a) Legal set-off and (b) Equitable setoff.
The distinction between legal and equitable set-off may now be noted:
1. In a legal set-off the amount claimed must be an ascertained sum of
money but in an equitable setoff the claim must-be allowed even with
respect to an unascertained sum of money.
2. In a legal set-off the court is bound to entertain and adjudicate upon
the plea when raised. In the case of an equitable set-off, however, it is
not obligatory on the court to adjudicate upon it and the defendant
cannot claim it as a matter of right. The court has the discretion to
refuse to take notice of the equitable set-off if the investigation into the
equitable claim is likely to result in delay.
3. In a legal set-off it is not necessary that the cross-demands arise out of
the same transaction, but an equitable set-off is allowed only when the
cross-demands arise out of the same transaction as the plaintiff s claim.
4. In a legal set-off the amount claimed to be set off must be legally
recoverable and not barred by limitation at the date of the suit, but a
claim by way of equitable set-off can be allowed even if it is barred at the
date of the suit where there is fiduciary relationship between the
plaintiff and the defendant.
5. If the defendants claim is barred at the date of the written statement
but not barred at the date of the suit, the defendant can get an equitable
set-off to the extent of the plaintiffs claim only but not for the balance
found due to him. In a legal set-off the whole claim is admissible and the
defendant can even get a decree for the balance.

6. A legal set-off requires a court-fee because it is a claim that might be

established by a separate suit in which a court-fee would have to be
paid. But there is no such fee required in an equitable set-off which is for
an amount that may equitably be deducted from the claim of the plaintiff
where a court-fee has been paid on the gross amount.
5. Counter Claim
a. (R.6A.) Counter-claim by defendant:
(1) A defendant in a suit may, in addition to his right of pleading a set-off
under rule 6, set up, by way of counter-claim against the claim of the
plaintiff, any right or claim in respect of a cause of action accruing to the
defendant against the plaintiff either before or after the filing of the suit
but before the defendant has delivered his defence or before the time
limited for delivering his defence has expired, whether such counterclaim 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.
Furthermore, Such counter-claim shall have the same effect as a crosssuit 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 liberty to file a written statement in answer to the counterclaim 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 plaints.
b. (R.6B.) Counter-claim to be stated:
Where any defendant seeks to rely upon any ground as supporting a
right of counter-claim, he shall, in his written statement, state
specifically that he does so by way of counter-claim.
c. (R.6C.) 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 any time
before issues are settled in relation to the counter-claim, apply to the

Court for an order that such counter-claim may be excluded, and the
Court may, on the hearing of such application make such order as it
thinks fit.
d. (R.6D.) 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.
e. (R.6E.) Default of plaintiff to reply to counter-claim:
If the plaintiff makes default in putting in reply to the counter-claim
made by the defendant, the Court may pronounce judgment against the
plaintiff in relation to the counter-claim made against him or make such
order in relation to the counter-claim as it thinks fit.
f. (R.6F.) Relief to defendant where counter-claim succeeds:
Where in any suit a set-off or counter-claim is established as defence
against the plaintiff's claim and any balance is found due to the plaintiff
or the defendant, as the case may be, the Court may give judgment to
the party entitled to such balance.
g. (R.6G.) Rules relating to written statement to apply:
The rules relating to a written statement by a defendant shall apply to a
written statement filed in answer to a counter-claim.
Rejoinder
Rejoinder means answer of the plaintiff, which he gives keeping in view
new facts alleged by the defendant in written statement.
Object of Pleadings
The object of pleading is to bring the parties to an issue and purpose of
the rules relating to pleading is to prevent the issue being enlarged.
Further that the parties themselves know what the matters in dispute are
and what facts they have to prove at the trial.
What should a pleading contains

Every pleading shall contain and contain only, a statement in a concise

form of the material facts, n which the party pleading (plaintiff or
defendant) relies for his claim or defence, as the case may be. It shall not
contain, the evidence by which they are to be proved, and it shall, when
necessary, be divided into paragraphs, numbered consecutively. Dates,
sums and numbers shall be expressed in figures.
General Rules of Pleading
In civil procedure code order 6 deals with pleadings in general, order 7
deals with plaint, and order 8 deals with the written statement. The
following is the summary of the rules comprised in orders 6, 7, and 8 of
civil procedure code:
1. In pleading state your whole case, in other words set forth in pleading
all material facts on which you rely for your claim or defence, as the case
may be.
2. In pleading state facts and not the law, if any matter of law is set out
inj your opponent's pleading, do not plead to it.
3. In pleading state only the relevant facts on which you rely, and not the
evidence by which those facts are to be proved.
4. In pleading state material facts only and omit immaterial and
unnecessary facts, and do not plead to any matter which is not against
you.
5. In pleading, state the facts of the case concisely, but with precision.
6. It is not necessary to set out the whole or any part of the document,
unless the precise words thereof necessary, it is sufficient to state the
effects of document as briefly as possible.
7. It is not necessary to allege any matter of fact which the law presumes
in your favour or as to which the burden of proof lies upto your opponent
party.
8. The party should not plead conclusion of law in pleading.
9. Legal pleas such as estoppel, limitation and resjudicata or res
subjudice etc, may be pleaded in written statement.

10. In cases where the party pleading relies on any mis-representation,

fraud, breach of trust, wilful default, or undue influence, particulars shall
be stated in the pleading.
Amendment of Pleadings (Order 6 Rule 17)
By Amendment Act 46 of 1999, Order VI Rule 17 was deleted. It has
again been restored by Amendment Act 22 of 2002 but with an added
proviso to prevent application for amendment being 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.

The proviso, to some extent, curtails

absolute discretion to allow amendment at any stage. Now, if application

is filed after commencement of trial, it must be shown that in spite of due
diligence, such amendment could not have been sought earlier. The
purpose and object of Order VI Rule 17 of the Code is to allow either
party to alter or amend his pleadings in such manner and on such terms
as may be just. Amendment cannot be claimed as a matter of right and
under all circumstances, but the Courts while deciding such prayers
should not adopt a hyper-technical approach. Liberal approach should be
the general rule particularly, in cases where the other side can be
compensated with costs. Normally, amendments are allowed in the
pleadings to avoid multiplicity of litigations.
Furthermore, It is well settled that under Order 6 Rule 17 of the Code of
Civil Procedure, wide powers and unfettered discretion have been
conferred on the court to allow amendment of the pleadings to a party in
such a manner and on such terms as it appears to the court just and
proper. Even if, such an application for amendment of the plaint was filed
belatedly, such belated amendment cannot be refused if it is found that it
is necessary for deciding the real controversy between the parties, it can
be allowed on payment of costs. Therefore, in our view, mere delay and
laches in making the application for amendment cannot be a ground to
refuse the amendment. However, the defendants by means of amendment

cannot substitute a new case and completely change the case made in
the written statement.
If defendant seeks to substitute a new case by way of amendment.
Amendment is not to decide the real question of controversy between the
parties but only technical in nature.

If effect of amendment would be

take away a legal right acquired by bar of limitation. Amendment

introduces a wholly inconsistent or new case and application is made at a
very later stage in the suit. Application is not made in good faith.
The above principles make it clear that Courts have ample power to allow
the application for amendment of the plaint. However, it must be satisfied
that the same is required in the interest of justice and for the purpose of
determination of real question in controversy between the parties.

ISSUES (ORDER 14)

Issues are points of contest between the parties in a suit. In other words
issues are those points raised from the pleadings which se a way for the
court for entertaining a case and it brings the court at the right
conclusion of justice. The determination of issues has great importance in
the trial of a case, because it is issues and not the pleadings, which
indicates the appropriate evidence to be given. Pleadings constitutes
allegations to one-side or the other, and after determination which of the
allegations are material for the purpose of the trial and which of them
are admitted or denied, issues are framed and on the basis of these
issues the parties stand the test of the trial.
The object of settlement of issues is to determine the material points in
controversy

between

the

parties.

Issues

arise

when

material

proposition of fact or law affirmed by one party and denied by other

party. Issues, whether raised from allegations in the pleadings or from
other materials, should not be inconsistent with pleadings; the court is
bound to frame the proper issues arising from the pleadings.
Framing of Issues

According to order 14 rule 1, issues arise when a material proposition of

fact or law is affirmed by one party and denied by the other. Material
propositions are those propositions of law or fact which a plaintiff must
allege in order to show a right to sue or a defendant must allege in order
to constitute his defence. Each material proposition affirmed by one party
and denied by the other shall form the subject of a distinct issue. At the
first hearing of the suit the court shall, after reading the plaint, and the
written statements, if any, and after such examination of the parties as
may appear necessary, ascertain upon what material propositions of fact
or of law the parties are at variance, and shall thereupon proceed to
frame and record the issues on which the right decision of the case
appears to depend.
If the defendant at the first hearing of the suit makes no defence, then
according to order 14 rule 1, nothing in this rule requires the court to
frame and record issues.
Omission to Frame Issues
If an issue is not framed in the suit, while an allegation was made in the
plaint in-respect of certain facts and challenged in written statement, the
court can allow the parties to lead the evidence on such point, and would
give its decision without framing that issue.
Kinds of Issues:
1. Issues of Fact
Issue of fact means any issue, which has not been determined, by a rule
of law, but is to be answered, in accordance with the evidence laid before
the court.
2. Issues of Law

Issue of law means that issue, which is to be answered in accordance

with the law, and not in accordance with the facts or evidences that is
laid before the court.
Materials from which Issues may be framed
The provision regarding the materials from which issues are framed is
found in order 14 rule 3, which provides that " the court may frame
issues from any of the following materials :1. The court may frame issues from the allegations made on oath by bthe
parties, or by any persons present on their behalf or made by the
pleaders of such parties.
2. The court may frame issues from the allegations made in the pleadings
or in answers to the interrogatories delivered in the suit.
3. The court may frame issues from the contents of the documents
produced by either part.
According to order 14 rule 2, " where issues both of law and fact arise in
the same suit, and the court is of the opinion, that the case or any part
thereof may be disposed of on issues of law only, it shall try those issues
first, and for that purpose may if it thinks fit, postpone the settlement of
the issues of fact untill after the issue of law have been determined".
Power of Court to amend and strike out Issues:
The power of the court to amend and striking-out of issues is mentioned
in order 14 rule 5, which provides that, " The court may at any time
before passing a decree amend the issues or frame additional issues as
may be necessary for determining the matters in controversy between
the parties shall be so made or framed. The court may also, at any time
before passing a decree, strike-out any issues that appear to it to be
wrongly framed or introduced.
PARTIES TO BE EXAMINED:

(ORDER X)

As has been observed by the Supreme Court in M/s Kapil Corepacks

Pvt. Ltd. v. Harbans Lal, 1988 SCR Supl. (3) 333 has examined the
scope and ambit of the Courts powers under Order 10 of the Code of Civil
Procedure, 1908. The Supreme Court was of the opinion that the scope of
the power of the Court is limited to identifying 'matters in controversy'
and not to prove / disprove facts.
Order X lays down the practices involved in the same. The steps are:
1. Ascertainment of whether allegations in pleadings:
At the first hearing of the suit, the Court shall ascertain from each party
or his pleader whether he/she admits or denies such allegations of fact as
has been made in the plaint or written statement of the opposite party,
and as are not expressly or by necessary implication admitted or denied
by the party against whom they are made. The Court shall make records
of such admissions and denials.
2. Oral examination of party:
(i) At the first hearing of the suit, the Court(a) Shall, with a view to elucidating matters in controversy in the suit
examine orally such of the parties to the suit appearing in person or
present in Court, as it deems fit.
(b) May orally examine any person, able to answer any material question
relating to the suit, by whom any party appearing in person or present in
Court or his pleader is accompanied.
(ii) At any subsequent hearing, the Court may orally examine any party
appearing in person or present in Court, or any person, able to answer
any material question relating to the suit, by whom such party or his
pleader is accompanied.
(iii) The Court may, if it thinks fit, put in the course of an examination
under this rule questions suggested by either party.
3. Subject of examination to be written:

The substance of the examination shall be reduced to writing by the

Judge, and shall form part of the record. Moreover, Order 10 Rule 1
empowers the court to ascertain from each of the parties (or his pleader),
at the first hearing whether he admits or denies such of those allegations
of fact made in the pleadings of the other party, which were not expressly
or by necessary implication admitted or denied by him. In other words, if
the defendant in his written statement has failed to expressly or by
necessary implication admit or deny any of the plaint allegations, the
court can ascertain the same from the defendant, whether he admits or
denies the referred allegations. In a similar manner, if the defendant has
levied some allegations against the plaintiff in his written statement, and
no reply is filed by the plaintiff, the court can ascertain whether plaintiff
admits or denies those allegations. In such a case, resort has to be taken
to Rule 1 of Order 10. Examination under Order 10 Rule 1 of the Code
will not be necessary where the pleadings of each party have been fully
and clearly traversed by the other party.
On the other hand, the examination under Rule 2 of Order 10 of the
Code, need not be restricted to allegations in the pleadings of the other
party, but can relate to elucidating any matter in controversy in the suit.
Further, under Rule 1 of Order 10, the court can examine only the parties
and their advocates, that too at the `first hearing'. Furthermore, Rule 2
enables the court to examine not only any party, but also any person
accompanying either party or his pleader, to obtain answer to any
material question relating to the suit, either at the first hearing or
subsequent hearings. The sole object of oral examination under Rule 2 of
Order 10 is to ascertain the matters in controversy in suit, and not to
record evidence or to secure admissions. The statement made by a party
in an examination under Rule 2 is not under oath, and is not intended to
be a substitute for a regular examination under oath under Order 18 of
the Code.
In other words, while the purpose of an examination under Rule 1 is to
clarify the stand of a party in regard to the allegations made against him
in the pleadings of the other party, the purpose of the oral examination

under Rule 2 is mainly to elucidate the allegations even in his own

pleadings, or any documents filed with the pleadings. The power under
Order 10 Rule 2 of the Code, cannot be converted into a process of
selective cross-examination by the court, before the party has an
opportunity to put forth his case at the trial. The above position of law is
well settled.(Manmohan Das v. Mt. Ramdei & Anr. AIR 1931 PC
175.)
No doubt under Order 10, Rule 2, any party present in Court may be
examined orally by the Court at any stage of the hearing, and the Court
may if it thinks fit put in the course of such examination questions
suggested by either party. But this power is intended to be used by the
Judge only when he finds it necessary to obtain from such party
information on any material questions relating to the suit and ought not
to be employed so as to supersede the ordinary procedure at trial as
prescribed in Order 18.
At the faade, it must be noted that it (Order 10 Rule 2) does not provide
for an examination on oath. This provision was intended to be used to
elucidate the matters in controversy in suit before the trial began. This is
not a provision intended to be used to supersede the usual procedure to
be followed at the trial. (Arunagiri Goundan v. Vasantharoya
Koundan & Ors AIR 1949 Madras 707).
The object of Order 10 Rule 2 is not intended to elicit admissions neither
does it provide for or contemplate admissions. The admissions are
usually contemplated:
(i)

in the pleadings (express or constructive under Order 8 Rule 5 of

(ii)

the Code);
during examination of a party by the court under Order 10 Rule 1

(iii)
(iv)

of the Code;
in answers to interrogatories under Order 11 Rule 8 of the Code;
in response to notice to admit facts under Order 12 Rule 4 of the

(v)

Code;
in any evidence or in an affidavit, on oath; and

(vi)

when any party voluntarily comes forward during the pendency of

a suit or proceedings to make an admission.

The power of court to call upon a party to admit any document and
record whether the party admits or refuses or neglects to admit such
document is traceable to Order 12 Rule 3A rather than Order 10 Rule 2
of the Code. However, nothing comes in the way of the court combining
the power under Order 12 Rule 3A with its power under Order 10 Rule 2
of the Code and calling upon a party to admit any document when a Party
is being examined under Order 10 Rule 2.
MECHANISM OF DISCOVERY:

(ORDER

XI)

Discovery is the obtaining by one party to an action or suit of information

on oath from another party. It is of two kinds(1) discovery by
interrogatories of facts relevant to the issues in the action and within the
knowledge of the party interrogated; and (2) discovery of documents
relating to the matters in the action and in the possession of the third
party.
As already stated above, it empowers a party to ascertain the nature of
his opponents case or the material facts constituting his case. It is based
on the principle that every party to a suit is entitled to know the nature of
his opponents case so that he may know what case he has to meet at the
hearing.
Discovery by Interrogatories
A defendant may administer interrogatories to the plaintiff and a plaintiff
may administer interrogatories o the defendant, if the nature of the
plaintiffs case as disclosed in his plaint in the former case or the nature
of the case of the defendant as disclosed in his written statement in the
latter case does not sufficiently disclose the nature of the partys case.

Before interrogatories are allowed to the plaintiff by the defendant or to

the defendant by the plaintiff, it is necessary to obtain leave of the court
to do so. The object of interrogatories is
(1) To ascertain the nature of your opponents case or the material facts
constituting his case;
(2) To support your own case, either
(a) Directly, by obtaining admissions, or
(b) Indirectly, by impeding or destroying your adversarys case.
This results in narrowing the points in issue and also eliminates proving
facts which are, admitted. Interrogatories will not be allowed in the
following cases:
1. A party is not entitled to administer interrogatories for obtaining
discovery of facts which constitute exclusively the evidence of his
adversarys case of title.
2. A party is not entitled to interrogate as to any confidential
communications between his opponent and his legal advisers.
3. A party is not entitled to administer interrogatories which would
involve disclosures injurious to public interests.
4. An interrogatory although relevant to and bona fide for the purposes of
a suit may be premature, in which case it will not be allowed.
5. Interrogatories must not be fishing in nature, that is to say, they must
refer to some definite and existing state of circumstances, and must not
be put merely in the hope of discovering something which may help the
party interrogating to make out some case.Any party to a suit by leave of
the court may deliver written interrogatories for examination of the
opposite parties or anyone or more of such parties, stating at the foot

thereof which of such interrogatories each of such persons is required to

answer. No party shall deliver more than one set of interrogatories to the
same party without an order for that purpose and interrogatories which
do not relate to any matters in question in the suit shall be deemed
irrelevant. (Order XI, Rule 1).
The sole objective of this rule is to enable a party to require information
from his opponent to the purpose of maintaining his own case or for
destroying the case of the adversary. The main object of interrogatories is
to save expenses and shorten the litigation by enabling a party to obtain
from his opponent information as to facts material regarding the question
in dispute between them or to obtain admission of any facts which he has
to prove on any issue which is raised between them. As a general
practice, interrogatories are to be allowed whenever the answer to them
will serve either to maintain the case of the party administering them or
to destroy the case of the adversary. The power to serve interrogatories
as it appears is not meant to be confined within narrow technical limits.
It should be used liberally whenever it can shorten litigation and serve
the interest of justice.
At the same time, such can be exercised within certain limits. The power
to order interrogatories to be served and answer should be used with
considerable care and caution, so that it is not abused by any party.

Leave for Interrogation:

On an application for leave to deliver interrogatories, the court shall

grant leave as to such interrogatories only which are considered
necessary either for disposing fairly of the suit or for saving costs, and in

doing so the court shall take into account any offer, which may be made
by the party sought to be interrogated, to deliver particulars, or to make
admissions, or to produce documents relating to the matters in question.
(Order XI, Rule 2).
Discovery of documents:
Any party may, without filing any affidavit, apply to the court for an order
directing any other party to any suit to make discovery on oath of the
documents which are or have been in his possession or power, relating to
any matter in question therein. The court may either refuse or adjourn
the application if satisfied that such discovery is not necessary or not
necessary at that stage of the suit, or make such order as may be thought
fit.
However, such discovery shall not be ordered when and so far as the
court shall be of opinion that it is not necessary either for fairly disposing
of the suit or for saving costs. (Order XI, Rule 12).The suit being for
enforcement of the security, it could be filed only at the place where the
property is situated. For example, in case the defendants desired to raise
the question of jurisdiction as the mortgage was fictitious, they could do
so. But for that it was not necessary to summon the disciplinary
proceedings pending against the bank official even if one of the charges
is that the security furnished by defendant No. 5 was fictitious. It could
be established by leading evidence and cross-examining the witnesses. In
our opinion, the defendants have by this method attempted to delay the
proceedings.
Parties directed by court to make discovery of documents should file an
affidavit specifying which of the documents he objects to produce, or
state on oath if he has no such documents. [Order XI, Rule 13].
MECHANISM OF INSPECTION:

(ORDER

XI)

Party to a suit may give notice to any other party, in whose pleadings or
affidavits reference is made to any document, or who has entered any
document in any list annexed to his pleadings, to produce such document
for the inspection of the party giving such notice, or of his pleader and to
permit him or them to take copies thereof.
Parties not complying with such notice shall not be allowed later, to put
any such document in evidence on his behalf in such suit, unless he/she
satisfies the court that such document relates only to his own title, he
being a defendant to the suit, or that he had some other sufficient cause
or excuse. (Order XI, Rule 15).The other party at whom such notice is
directed shall, within ten days from the receipt of such notice, deliver to
the party giving the same a notice stating a time within three days from
the delivery thereof at which the documents, or such of them as he does
not object to produce, may be inspected at the office of his pleader, or in
the case of bankers books, account books or books in constant use for
any trade or business, at their usual place of custody, and stating which,
if any, of the documents he objects to produce and on what ground.
(Order XI, Rule 17).
Order for carrying out inspection:
In instances, where the party receiving notice omits to give such notice
of a time for inspection or objects to give inspection, or offers inspection
elsewhere that at the office of his pleader, the court may, on the
application of the party desiring it, make an order for inspection at such
place and in such manner as it thinks fit, but in such case, no order will
be made where the court thinks that it is necessary either for disposing
fairly of the suit or for saving costs. [Order XI, Rule 18(1)].
Documents not referred to in pleading or affidavit:
An application to inspect documents, other than those referred to in the
pleadings or affidavits shall be founded upon an affidavit showing of what
documents inspection is to be sought, that the party applying is entitled

to inspect them and that they are in the possession or power of the other
party. [Order XI, Rule 18(2)].

Verified copies:
In instances of inspection of any business books the court may instead of
ordering inspection of the original books order a copy of any entries
therein to be furnished and verified by the affidavit of some person who
has examined the copy with the original entries stating whether or not
there are in the original book any and what erasures, interrelations, or
alterations. The court may notwithstanding that such copy has been
supplied, order inspection of the book from which the copy was made.
Where on an application for an order for inspection privilege is claimed
for any document, the court may inspect the document for the purpose of
deciding as to the validity of the claim of privilege, unless the document
relates to matters of State. [Order XI, Rule 19(1) and (2)].
Premature Discovery:
A premature discovery is one when the right to the discovery of any kind
of inspection sought depends upon the determination of any issue or
question in dispute in the suit or for any other reason it is desirable that
any issue or question in dispute in the suit should be determined before
deciding upon the right to the discovery or inspection. In such instances,
the court may order that such issue or question in dispute in the suit be
determined first and reserve the question as to the discovery or
inspection.(Order XI, Rule 20). It is discretionary to postpone discovery
and inspection until some issue is determined but there is no
contravention in ordering discovery or inspection before any issue is
determined.
Consequences In Case Of Non-compliance:

In

case,

any

party

fails

to

comply

with

any

order

to

answer

interrogatories, or for discovery or inspection of documents, he shall, if a

plaintiff, be liable to have his suit dismissed for want of prosecution, and,
if a defendant, to have his defence, if any struck out, and to be placed in
the same position as if he had not defended, and the party interrogating
or seeking discovery or inspection may apply to the court for an order to
that effect, and an order may be made on such application accordingly
after notice to the parties and after giving them a reasonable opportunity
of being heard. Where an order is made dismissing the suit, the plaintiff
shall be precluded from bringing a fresh suit on the same cause of action.
(Order XI, Rule 21).
Order XI, Rule 21 is not applicable to cases of non-compliance with the
order for production of documents under Order XI, Rule 14. An order
passed by the Court for the production of documents is an order under
Order XI, Rule 14. In such cases, the suit cannot be dismissed for noncompliance of the directions of Order XI, Rule 14, under Order XI, Rule
21(2) and the Court could draw an adverse inference because of nonproduction of documents by the plaintiff.
Application for striking out of defence not allowed on ground of
failure to file affidavit of documents by defendant:
In cases where, repeated opportunities were given to defendant to file
affidavit of documents. However, he subsequently said affidavit was filed
within time fixed by High Court. As such, it could not be said that no
affidavit of documents was filed in terms of order of Court.Thus, default
clause had never taken effect and hence, defence could not be striked
out. But for the interest of justice, defendant was given time to file
proper affidavit as he was not found guilty of obstinacy and contumacy.

ADMISSIONS: (ORDER XII)

In

Dinesh

Kumar

Singhania

vs.

Calcutta

Stock

Exchange

Association Limited 2005 (2) CHN 601, the Court was of the opinion
that from primary use of the provisions under Order XII Rule 6 of the
Code, it appears that the scope of the rule is that in a case where
admission of fact has been made by either of the parties in pleadings
whether orally or in writing, or otherwise, the judgment to the extent of
admission can be given by the Court on its own motion or on the
application of any party.
The following are different instances:
Parameters of Judgment On Admission:
In Smt. Sudesh Madhok v. Paam Antibiotics Ltd. and Anr AIR 2011
SC 298 the Court said that where a claim is admitted, the court has
jurisdiction to enter a judgment for the plaintiff and to pass a decree on
admitted claim. The object of the Rule is to enable the party to obtain a
speedy judgment at least to the extent of the relief to which according to
the admission of the defendant, the plaintiff is entitled."
Again, in Raj Kumar Chawla v. Lucas Indian Services, AIR 2006
Delhi 266 the Division Bench states that there cannot be an inferential
admission it has to be unambiguous. In other terms, the Court should
not deduce an admission, as the result of an interpretive exercise.
Form of Admission:
On the face of it, Order XII, Rule 6 of the Code of Civil Procedure is
evidently clear that it is open to the Court to base a judgment on
admission on the pleadings or otherwise. The word "otherwise", in the
said provision clearly indicates that it is open to the Court to base the
judgment on statements made by a party not only in the pleadings but
also de hors the, pleadings. Such admissions may be made either

expressly

or

constructively.

Relief under Order XII Rule 6

The provision 'under Order XII Rule 6 of the Code is enabling,
discretionary and permissive and is neither mandatory nor it is
peremptory since the word "may" has been used. It is not incumbent on
the Courts to pass judgment on admissions and in order to succeed under
Order XII Rule 6 CPC; the admission of the other party has to be clear
and unequivocal.
Furthermore, there is no time limit specified for Court to grant relief on
its own or on application at any stage of the suit. The use of the
expression "any stage" in the said rule itself shows that the legislature's
intent is to give it widest possible meaning. Thus merely because issues
are framed cannot by itself deter the court to pass the judgment on
admission under O. XII R. 6, C.P.C.
Bare perusal of Order XII Rule 6 shows, that it confers very wide powers
on the court, to pronounce judgment on admission at any stage of the
proceedings. The admission may have been made either in pleadings, or
otherwise. The admission may have been made orally or in writing. The
court can act on such admission, either on an application of any party or
on its own motion without determining the other questions. This
provision is discretionary, which has to be exercised on well established
principles. Admission must be clear and unequivocal; it must be taken as
a whole and it is not permissible to rely on a part of the admission
ignoring the other part; even a constructive admission firmly made can
be

made

the

basis.

Can Judgment Be Given After Admission/Denial?

In Jal Board v Surendra P Malik, 104 (2003) DLT 151, the Court
held that it is essential that the admissions must be plain, unambiguous

and unequivocal and that when a defence is set up and it requires

evidence

for

determination

of

the

issues.

In Balraj Taneja and another v Sunil Madan, AIR 1998 SC 111, the
Supreme Court referred to Order VIII Rule 5 which deals with denials
and observed that sub-rule (1) of Rule 5 provides that any fact stated 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 treated as
admitted. It further observed that under Rule 3 of Order VIII it is
provided that the denial by the defendant in his written statement must
be specific with reference to each allegation of fact made in the plaint. A
general denial or an evasive denial is not treated as sufficient denial and,
therefore, the denial, if it is not definite, positive and unambiguous; the
allegations of facts made in the plaint shall be treated as admitted under
this Rule. The court is empowered under Order XII Rule 6 to pass
judgment and decree in respect of admitted claims pending adjudication
of the disputed claims in the suit.

SUMMONING AND ATTENDANCE

OF WITNESSES DETAINED:

(ORDER

XVI-A)

Where it appears to a court that the evidence of a person confined or

detained in prison within the State is material in a suit, the court may
make an order requiring the officer in charge of the prison to produce
that person before the court to give evidence: provided that, if the
distance from, the prison to the court-house is more than 25 kilometres,
no such order shall be made unless the court is satisfied that the
examination of such person on commission will not be adequate. (Order
XVI-A, Rule 2).
Before making an order under Rule 2, the court shall require the party at
whose instance or for whose benefit the order is to be issued to pay into
court such sum of moneys as be sufficient to defray the expenses of the
execution of the order, including the travelling and other expenses of the
escort provided for the witness. (Order XVI-A, Rule 3).
The State Government may, at any time, by general or special order,
direct that any person or class of persons shall not be removed from the
prison in which he or they may be confined or detained, and thereupon,
so long as the order remains in force, no order made under Rule 2 shall
have effect in respect of such person or class of persons. [Order XVI,
Rule 4(1)].
Before making an order under sub-rule (1), the State Government shall
have regard to (a) the nature of the offence for which the person or class
of persons have been ordered to be confined or detained in prison, (b) the
likelihood of the disturbance of public order if the person or class of
persons is allowed to be removed from the prison; and (c) the public
interest generally. [Order XVI-A, Rule 4(2)].
ADJOURNMENT:

(ORDER

XVII)

Adjournment refers to an instance where a particular case, is posted to

be heard on a further date. There are various aspects to it. Some are:
Procedure if parties fail to appear on day fixed:
Where on the adjourned date the parties or any of them fail to appear,
the court may proceed to dispose of the suit in one of the modes
mentioned in Order IX dealing with consequence of non-appearance of
parties; discussed earlier or make such order as it thinks fit. (Order XVII,
Rule 2).
The Explanation added to Rule 2 provides that where the evidence or a
substantial portion of the evidence of any party has already been
recorded and such party fails to appear on any day to which the hearing
of the suit is adjourned, the court may, in its discretion, proceed with the
case as if such party were present. Where the defendants husband who
was acting as her pairokar and her counsel, duly authorised to appear,
act and plead on her behalf were both present in court on the date of
hearing and the counsel reported no instructions, which means that he
refused to appear for the defendant-appellant, the defendant could not be
said to be present in court. The decree was technically passed ex parte.
Court may proceed notwithstanding either party fails to produce
evidence, etc:
Where any party to a suit to whom time has been granted fails to produce
his evidence, or to cause the attendance of his witnesses, or to perform
any other act necessary to the further progress of the suit for which time
has been allowed, the court may notwithstanding such default,(a) if the
parties are present, proceed to decide the suit forthwith; or (b) if the
parties are, or any of them is absent, proceed under Rule 2 above. (Order
XVII, Rule 3). To apply the procedure under Order XVII, Rule 3, C.P.C.
there should be presence of both the elements, viz., (1) the adjournment
must have been at the instance of a party, and (2) there must be
materials on the record for the court to proceed to decide the suit.

Right of party to prove its case by leading evidence:

Such right could not be taken away by Court save otherwise in case of
failure to produce evidence and such failure was required to be recorded
in the order leading to closure of evidence. It was only then that the
Court could proceed to decide suit after doing away with evidence of
party. Held, that Court by no stretch of imagination could decide suit
straightway discarding evidence of party though Courts enjoy such power
under C.P.C. Rule 6, Order XII where claim was admitted.
Rule 2 of Order XVII does not apply where no day has been fixed for the
hearing, but applies where the hearing of a suit has been adjourned and
on the adjourned date the parties or any of them fail to appear.
Rule 3 of Order XVTI applies only to cases where the parties are present
and have not satisfied the court as to the existence of any adequate
reason for their not having done what they were directed to do.
Rules 2 and 3 are mutually exclusive and where the pleader pleads no
instructions and the party is not prepared to go on rule 2 and not rule 3
applies. Rule 3 means that the court has discretion to decide the case on
the adjourned date or not, but if it does decide the suit, it will be a
decision on the merits and appearance on behalf of the defendant would
be assumed, whether he was in fact present or not and the decree cannot
be regarded as ex parte. Only an appeal and no revision lies against an
order under Order XVII, Rule 3.
In cases where on an adjourned date, a case is decided in the absence of
the defendant and the order is described as an ex parte one, it cannot be
said that merely because the court gave some reasons for its decision, it
becomes a decision on merits so as to take the case out of the provisions
of Order IX.
No Instructions to counselProper Procedure:

Where on the refusal of an application for adjournment the plaintiffs

pleader reports No instructions and the plaintiff though present during
the defendants argument asks for time to engage another pleader which
is refused, the trial judge should, in such circumstances, pass an order
dismissing the suit for default under Rule 2 and not purport to pass a
decree based on a finding on the merits against the plaintiff under Rule
3.
Different remedies against Order XVII, Rules 2 and 3:
The remedies in the case of the orders under Rule 2 and Rule 3, are
different. If a suit is dismissed under Order XVII, Rule 2, read with Order
IX, Rule 8 (i.e., where the defendant appears and the plaintiff does not
appear), the remedy is by application under Order IX, Rule 9, i.e., the
plaintiff is precluded from bringing a fresh suit in respect of the same
cause of action but he may apply for restoration of the suit. But if suit is
dismissed under Order XVII, Rule 3, the remedy is by way of an appeal.
In case of default under Rules 2 and 3 of Order XVII:
Where there is default under both the rules, i.e., the party having got an
adjournment not only fails to perform the act for which adjournment was
given but also fails to appear on the adjourned date, Rule 2 should be
applied; but if there are materials to justify a decision on merits, Rule 3
should be resorted to.
If the suit came to be disposed of on account of the non-appearance of
the plaintiff on a hearing day but it was not at the instance of the plaintiff
that the suit was adjourned for the day it came to be disposed of, the
court can proceed only under Order XVII, Rule 2 in one of the modes
prescribed by Order IX, presumably in the manner prescribed by Order
IX, Rule 8. An application under Order IX, Rule 9 by the plaintiff would
be maintainable in such a case.

The construction of Order XVII, Rule 2 should be such that where it is

permissible to treat an order as falling within the ambit of Rule 2, it must
be taken as being outside the ambit of Rule 3 for the obvious reason that
Rule 3 is a more stringent provision requiring a strict construction.
(Rama Rao v. Shantibai, AIR 1977 MP 222)
Application for setting aside dismissal of suit:
An application under Order IX, C.P.C. will lie for setting aside the
dismissal of a suit in the following circumstances and Order XVII, Rule 2
would alone be attracted: (a) where the plaintiff had not been asked to do
something and he did not appear when the case was called on for
hearing, or (b) where the plaintiff was asked to do something which he
did not do, nor did he appear when the case was called on for hearing.
Application for setting aside ex parte order Under Order 9 Rule
13:
In the following situations, the defendant can apply under Order IX, Rule
13, C.P.C. for setting aside an ex parte decree and Order XVII, Rule 2
would alone be attracted : (a) when the defendant had not been asked to
do something and he did not appear and the court decided the suit on the
basis of the existing material, without or after taking any further
evidence on record; (b) when the defendant had been asked to do
something which he did not do, nor appeared when the case was called
on for hearing and the court decided the suit on the existing material
without taking any further evidence for the plaintiff; (c) when he had
been asked to do something which he did not appear when the case was
called on for hearing and, therefore, on the same day, the Court took on
record ex parte evidence produced by the plaintiff; and (d) when he had
been asked to do something which he did not do, nor appeared when the
case was called on for hearing and the trial court adjourned the hearing
for recording plaintiffs evidence ex parte and on the next date after

recording plaintiffs ex parte evidence, passed an ex parte decree against

him.
In case of non-appearance on adjourned date of hearing and
remedy:
An instance in which the defendant obtains an adjournment on the date
of final hearing of the suit and fails to appear on the adjourned date is
covered by Rule 2 of Order XVII, and an application under Order IX, Rule
13 will lie even if the court proposes to act under Rule 3. Rule 3 applies
when a party is present, or is deemed to be present, and has defaulted in
doing the acts mentioned in Rule 3.
Where the Court on non-appearance of the defendant even if expressly
proceeded to decide the case under Order XVII, Rule 3 instead of
deciding it ex parte under Order XVII, Rule 2, the defendant was not
precluded from moving an application under Order IX, Rule 13, for
setting aside such decree.
When the defendant obtains adjournment of the suit but fails to appear
on the adjourned date, the matter is governed by Order XVII, Rule 2 and
not by Order XVII, Rule 3. Consequently, if the court wants to dispose of
the suit, it should dispose it of in accordance with the provisions of Order
IX that is ex parte, but should not decide it on merits.
Appeal against ex parte decreewhen on merits and when
grounds of non-appearance-circumstances:
In appeals against ex parte decree the appellant can only be heard on the
merits of the case. The appellate court cannot go into the question as to
why the appellant had not appeared on the date of final hearing before
the trial court. This is the scope of an application under Order IX, Rule
13, C.P.C. When the defendant is absent no proceedings under Rule 3 of
Order XVII can be taken. When any of the parties fails to appear on an
adjourned hearing of the suit the court can proceed either under Order

IX or to adjourn the suit but where substantial portion of evidence of a

party has already been recorded and such party fails to appear on the
adjourned date then only the court can proceed to decide the suit on
merits even under Rule 2 of Order XVII.
Where in a case neither any evidence had been recorded either on behalf
of the plaintiff or on behalf of the defendant by the date on which ex
parte decree was passed nor the defendant was physically present in
court on the date on which the decree was passed, application of Order
XVII, Rule 3 was clearly excluded and the only course open to the court
was to proceed under Order XVII, Rule 2. Therefore, the court would be
deemed to have acted illegally when it proceeded to decide the suit on
merits under Rule 3 after rejecting the defendants application for
adjournment. The court, hearing an appeal against an ex parte decree
passed under Order XVII, Rule 3, can go into the grounds of nonappearance of the defaulting party unless it be barred from doing so
either under the doctrine of res judicata or under other positive rule of
law. The court can also consider whether the defendant was prevented by
any sufficient cause in

Provisions regarding examination of party not mandatory

A close reading of the provision of Rule 3-A indicates that the insistence
of examination of a party as a first witness is not an inviolable rule and
the rule itself provides an exception. May be that the Court has to be
assign reasons for giving such permission. In the instant case there is a
breach of Rule 3-A, but at the time of examination of the plaintiff as PW
2, the defendant has not objected and the evidence has been recorded.
Thereby in the context of facts, it should be construed that there has
been an implied permission granted by the Court. The provisions of
Order XVII, Rule 3-A are not mandatory and does not necessarily visit

with the consequences rendering such evidence a nullity. [Order XVII,

Rule 3-A]
HEARING OF SUIT AND EXAMINATION OF PARTY:

(ORDER

XVIII)

The provisions of sections 27, 28 and 29 shall apply to summonses to give

evidence or to produce documents or other material objects. The rules
relating to service of summons issued to the defendant and proof of
service also apply to summonses to witnesses to give evidence or to
List of witnesses and summons to witnesses:
(1) On or before such date as the Court may appoint, and not later than
fifteen days after the date on which the issues are settled, the parties
shall present in Court a list of witnesses whom they propose to call either
to give evidence or to produce documents and obtain summonses to such
persons for their attendance in Court.
(2) A party desirous of obtaining any summons for the attendance of any
person shall file in Court an application stating therein the purpose for
which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call,
whether by summoning through Court or otherwise, any witness, other
than those whose names appear in the list referred to in sub-rule (1), if
such party shows sufficient cause for the omission to mention the name
of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in
this rule may be obtained by the parties on an application to the [Court
in this behalf within five days of presenting the list of witnesses under
sub-rule (1)]. (Order XVI, Rule 1).

1-A. Production of witnesses without summons

Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit
may, without applying for summons under rule 1, bring any witness to
give evidence or to produce documents.] (Order XVI, Rule 1-A).
(1) Expenses of witness to be paid into Court on applying for
summons:
The party applying for a summons shall, before the summons is granted
and within a period to be fixed [which shall not be later than seven days
from the date of making application under sub-rule (4) of Rule 1,] pay
into Court such sum of money as appears to the Court to be sufficient to
defray the travelling and other expenses of the person summoned in
passing to and from the Court in which he is required to attend, and for
one days attendance.
(2) Experts:
In determining the amount payable under this rule, the Court may, in the
case of any person summoned to give evidence as an expert, allow
reasonable remuneration for the time occupied both in giving evidence
and in performing any work of an expert character necessary for the
case.
(3) Scale of expenses:
Where the Court is subordinate to a High Court, regard shall be had, in
fixing the scale of such expenses, to any rules made in that behalf.
(4) Expenses to be directly paid to witnesses:
Where the summons is served directly by the party on a witness, the
expenses referred to in sub-rule (1) shall be paid to the witness by the
party or his agent. (Order XVI, Rule 2). Order XVI, Rules 1 and 1(A)
adumbrate that the witnesses at the trial court are to be produced for
examination by the parties by their filing the list, and omission thereof

prohibits them to avail the assistance of the court to secure their

assistance to give evidence or to produce documents on their behalf.
Order XVI, Rule 1(A) has been added to see that the undue delay should
not be caused in the trial of the suit by filing list of witnesses or the
documents at belated stage.
It lays down that on or before the date fixed by the court for settlement
of issues and later than 15 days after the date on which issues were
settled, the parties are to file the list of witnesses. On their failure to do
the same, Rule 1(A) says that they may without assistance of the court
bring witnesses to give evidence or to produce documents. Thus if they
fail to obtain the summons through court for attendance of witnesses
they are at liberty to have witnesses brought without assistance of the
court. The legislature did not put a total prohibition on the party to
produce the witnesses or the production of the documents for the proof
the respective case. Nonetheless, when they seek the assistance of the
court, they are enjoined to give reasons as to why they have not filed the
application within the tune prescribed under Rule 1, Order XVI.
Plaintiff failed to file list of witnesses within prescribed time. The plaintiff
filed an application enclosing the list of witnesses to issue summons to
them for adducing of evidence they prove the case. In the application
supported by affidavit it was stated that they were under the bona fide
impression that they already filed the list of witnesses along with the
documents and that the mistake of non-filing the list was discovered
when they were getting ready for the trial. It was stated that the failure
to file the list of witnesses was not intentional. The trial court dismissed
the application holding that there was no proper explanation for the
delay in filing the list of witnesses. On revision the High Court declined
to interfere with the order. The Supreme Court in special leave petition
found that the trial was yet to begin.
Scheme Under Order XVI, Rules 1, 1-A, and 6:

The scheme under Order XVI, Rules 1 and 1-A, C.P.C. is that after the
court frames issues and serves notice on the parties enabling them to
determine what evidence, oral and documentary, they would like to lead,
a party can act either in accordance with Rule 1 or Rule 2. Where the
party wants the assistance of the court to procure presence of a witness
on being summoned through the court, it is obligatory on the party to file
the list with the gist of evidence of the witness in the court as directed by
sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2)
of Rule 1.
However, in cases where the party would be in a position to produce its
witnesses without the assistance of the court, it can do so under Rule 1-A
of Order XVI irrespective of the fact whether the name of such witness is
mentioned in the list or not and the court has no jurisdiction to decline to
examine such witnesses. Sub-rule (3) of Rule 1 and Rule 1-A operate in
two different areas and cater to two different situations, and there is no
inner conflict between the two. Sub-rule (3) of Rule 1 confers a wider
jurisdiction on the court to cater to a situation where the party has failed
to name the witness in the list and yet the party is unable to produce him
or her on his own under Rule 1-A and in such a situation the party of
necessity has to seek the assistance of the court under sub-rule (3) to
procure the presence of the witness.
A person may also be summoned to produce a document without being
summoned to give evidence and that person will be deemed to have
complied with the summons if he causes such document to be produced
instead of attending personally to produce the same. (Order XVI, Rule 6)
JUDGEMENT AND DECREE:

(ORDER

XX)

Section. 2(9) of the Code of Civil Procedure states that a judgment

means the statement given by the judge on the grounds of a decree or
order. S. 33 of the CPC tells us that a Court, after the case has been

heard, shall pronounce judgment, and on such judgment a decree shall

follow. S.33 indicates that a decree follows a judgment.
From section 2(9), we understand that judgment is the statement of the
Court on the grounds for having arrived at a decision. Every judgment
delivered by a Court to which the CPC applies has to deliver a reasoned
judgment. A judgment must contain the following components:
1. brief statement of facts of the case;
2. issues for determination;
3. decision on such issues and finally
4. reasons for such a decision
A judgment is meant to be adhered to by those to whom it applies and
such people have a right to know the reasons of the Court for holding a
particular point of view. This also helps them challenge the decision and
the reasons for the decision in a higher forum. Again, when it goes to a
higher forum, the appellate forum too has to have an opportunity to know
the reasons for a decision which proves application of the mind by the
Judge concerned.
Section 2(2) defines decree to mean the formal expression of an
adjudication which, so far as the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary or final.
Formal expression means the recordation of the ruling of the Court on
the matter presented before it; so far as the Court expressing it alludes
to the fact that the same issue cannot be adjudicated by or before the
Court again but only before a higher forum i.e. an appellate forum. It is
the initiation of a suit from a plaint. Only a plaint may lead to a decree
unless otherwise required by certain statutes under which an application
is treated as a suit. Under Order XX Rule 6 a decree must be drawn
separately after a judgment. It must be understood that no matter what a
particular document is ostensibly referred to as, if it starts with a plaint
in a suit and fulfils the requirements of a decree, it shall be a decree.
The Code recognises certain categories of deemed decrees. A deemed
decree is one which, though not fulfilling the essential features of a

decree as required by the Code, has been expressly categorised as a

decree by the legislature. The rejection of a plaint and the determination
of questions under s.144 are deemed decrees. Only those rejections
which are authorised by the CPC may be termed as decrees. What this
means is an appeal may lie from the rejection of a plaint for a decree has
been passed. Alternately, the Code does not bar remedying the situation
by presenting a fresh plaint.
The difference between a preliminary and final decree though fairly
straightforward has been the subject matter of debate. A final decree
here means disposal of the suit; if a decree has been passed but the suit
has not been completely disposed off, then the decree is a preliminary
one. A preliminary decree is usually passed where the Court waits for the
situation to mature itself to a stage where a final decree may be passed.
It is usually passed in suits for possession and mesne profits, suits for
pre-emption etc.
Again section 2(14) defines order to mean the formal expression of any
decision of a Court which is not a decree. The starting point for an order
need not always be a plaint, it may be an application or petition. Though
being a formal expression, it follows that an order need not conclusively
determine the rights of parties on any matter in dispute. However, it may
relate to the matters in controversy. There may be a preliminary decree,
but not a preliminary order. Every decree is appealable but every order is
not. ( Shankar vs Chandrakant 1995 SCC (3) 413.) Again, a second
appeal lies to the High Court from a first appeal, but there is no second
appeal from appealable orders. ( Narayanan vs Laxmi Narayan AIR
1953 Assam 193.)
There was no time limit prescribed for the pronouncement of judgment
prior to the amendment in 1976 which led to a persistent demand all
over India for the imposition of a reasonable time frame for the
declaration of judgment after the hearing of the case gets over. (R.C.
Sharma v. Union of India, 1976 AIR 2037.)
The Civil Procedure Code does not provide a time limit for the period
between the hearing of arguments and the delivery of a judgment. At the

same time, an unreasonable delay between hearing of arguments and

delivery of a judgment, unless explained by exceptional or extraordinary
circumstances, is highly undesirable even when written arguments are
submitted. It is not unlikely that some points which the litigant considers
important may have escaped notice. Even what is more important is the
litigants must have complete confidence in the results of litigation. This
confidence tends to be shaken if there is excessive delay between hearing
of arguments and delivery of judgments. Justice, as we have often
observed, must not only be done but must manifestly appear to be done.
Accordingly amendment was introduced providing a time limit for the
declaration of the judgment. If it is not possible to pronounce the
judgment at once, it should be declared within thirty days from the day of
conclusion of the hearing and in case some extreme situation arises then
the provision is also there to extend this declaration of pronouncement
till the sixtieth day from the conclusion of hearing. Thus judge have a
discretionary power for the pronouncement of judgment for these sixty
days but after that declaration becomes mandatory on the part of the
judge. (Rai v. State of Bihar, Appeal (crl.) 389 of 1998.)
Alteration in Judgment:
Before the pronouncement of judgment, the judge has every right to
change his mind but the dilemma arises in the situation when judgment
has been declared in the open court and after that something strikes to
the judge which prompts him to alter the judgment. Hence, the question
arises as to whether the changed mind frame should be given prevalence
over the old decision or old should be preserved from the new one. Rule
3 of Order 20 of C.P.C. provides that a judgment once signed cannot be
amended or altered afterwards except to correct clerical or arithmetical
mistakes or errors due to accidental slips or omissions as mentioned in
section 152 of the C.P.C. or on review.
According to Allahabad High Court in Sangam Lal v. Rent Control and
Eviction Officer, AIR 1966 All 221, a judgment dictated in an open
court can be changed, even completely, before it is signed provided

notice is given to all parties concerned and they are heard before the
change is made. Reasoning given for this judgment was that they do not
want to construe the rules too technically as they are indeed rules to
further the ends of justice; so they should not be viewed too narrowly.
This view of the Allahabad High Court was also accepted by the Delhi
High Court in the case of Ram Ralaya v. The Official Receiver, AIR
1976 Delhi 172. But the Gujarat High Court disagreed with this view
and was of the opinion that once a judgment has been pronounced or
delivered in an open court, though formal corrections may be made
before the judge signs it, the core of it cannot be altered or changed so
as to modify the order or amend or even set it at naught. Basically
judgment is the final decision of the court intimated to the parties and to
the world at the large in an open court.
This declaration is the intention of the mindset of the court after going
through the tedious process of the wholesome hearing. The rules
regarding this differ but they do not form the essence of the matter and if
there is any irregularity in carrying them out it is curable. Thus, if a
judgment happens not to be signed and is inadvertently consequent on
acted on and executed, the proceedings consequent on it would be valid
because the judgment, if it can be shown to have been validly delivered,
would stand good despite defects in the mode of this subsequent
authentication. The court can do some formal corrections but the core of
it cannot be altered or changed so as to modify the order or amend or
even set at naught the same. (Ishwarbhai v. Vadilal, AIR 1968 Guj.
289). That can be done only by the Court in appeal or in revision. Even
with the consent or agreement of the parties also, a judgment cannot be
altered or amended.
Reasoning To Be Provided in the Judgment:
Before judging, it is essential to have entire facts before it and then take
out the relevant portions to make a concise statement of the case. Thus, a
judgment should inaugurate with the facts of the case in brief. Rule 4(2)
of Order 20 of C.P.C. states that apart from the judgment of Small Cause

Courts, judgments of all other Courts shall contain a concise statement of

the case, the points for determination, the decision thereon and the
reasons for such decision.
Hence, after laying down the facts, facts in issue should be settled by
bringing out the claims which are disputed between both the parties;
thus issues should be framed. Framing of issues should be done via Rule
1 of Order 14 of C.P.C. Now after issues are framed, points for
determination come into picture and for determining those points, need
for extra force is required. It is not possible to cruise through the
disputed facts in the absence of any peaceful land. In order to
satisfactorily reach on a judicial determination of a disputed claim where
substantial questions of law or fact arise, it has to be supported by the
most cogent reasons; (Subramania v. Corera, AIR 1925 Madras 457),
a mere order deciding the matter in dispute without any reasoning is no
judgment at all.
As per Rule 5 of Order 20 of C.P.C. court has to state its decision with
reasons on each issue separately unless the finding upon any one or more
of the issues is sufficient for the decision of the suit. But Rule 2 of Order
14 of C.P.C. requires that a court should decide on all issues even if the
case can be decided by settling few issues only except where a pure
question of law relating to jurisdiction or bar to suit is involved. Further
with the addition of an explanation to Rule 22 of Order 41 of C.P.C. which
empowers a respondent in appeal to file cross objection in respect of
findings against him in a decree notwithstanding that by reason of the
decision of the court on any other finding which is sufficient for the
decision of the suit the decree is wholly or in part in favour of the
respondent.
The intention of the legislature is clear that the court will now have to
decide and state its findings on all the issues even if it considers that
finding for one or only few issues is sufficient for the disposal of the case.
Thus in order to have a harmonious construction of all these rules, it
would be judicial to amend the Rule 5 of Order 20 of C.P.C. by omission of
the words unless the finding upon any one or more of the issues is

sufficient for the decision of the suit at the end . Moreover, principle of
res-judicata operates after the determination of the case; so in case if
judgment is not given by deciding all the issues then problem can erupt
in future whether the rule of res-judicata will operate or not for that
particular issue.
There is ambiguity whether recording of reasons for each issue is one of
the principle of natural justice or not but it is inevitable for providing
safeguard against possible injustice and arbitrariness and provides
protection to the person adversely affected.
The court must decide all the issues of fact, which arise between the
parties as if the appellate Court takes a different view; the parties are
saved from further harassment . Court has to refer in its judgment all the
submissions made before it and have to deal with it even if the court is of
the opinion that there is no substance in any of the submission; in those
extreme situations the Court may just refer to the same and say that
there is no substance.
In the absence of discussion in detail of the evidence by the parties, it
cannot be said that its judgment is no judgment in the eyes of law. All the
court has to do is to frame proper issues and to keep in mind all the
points involved in the case and has discussed all those points, though in
brief; thus giving full respect to the judgment. Problem arises where
there is absolutely no evidence on the record and the plaintiff is wholly
unable to proceed with the case; in that situation an order simply
dismissing the suit without a finding on every issue is not bad. It would
be a sheer formality to write a judgment on each issue in these scenarios.

RES JUDICATA
The doctrine of Res-judicata is enunciated in section (11) of C.P.C is in
the following words:
According to section (11), "No Court shall try any suit or issue in which
the matter' directly and substantially has been directly and substantially
in issue in a former suit between the same parties, or between parties

under whom they or any of them claim, litigating under the same title, in
a Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally
decided by such Court."
Meaning
Res-judicata technically means that a matter in issue which has already
been tried by competent Court, then trial between the same parties inrespect of the same matter shall not be allowed. Res-judicata is very
important doctrine of C.P.C, it emphasis that a subject matter of the suit
which has already been decided, is deemed to be decided forever, and
can't be reopened by the same parties. The rule of Res-judicata is based
upon the principle that no person should be vexed twice for the same
cause of action, and the interest of the State behind this principle is that,
there should be an end to litigation.
Object
The object of Res-judicata is to prevent a question which has already
been decided to be re-agitated. A question finally decided at one stage of
a proceeding cannot be re-agitated between the same parties or their
representatives at a subsequent stage.
Kinds
There are two kinds of Res Judicata:
1. Actual Res-judicata:
It means a matter actually resolved by Court, between the parties in
earlier suit cannot be reopened through subsequent suit. In-other words
an issue has been alleged by one party and either denied or admitted,
(expressly or impliedly) by other party in earlier suit, second suit in
respect of the same matter can not be filed, and if any is filed, the same
would be hit by actual Res-judicata.
2. Constructive Res-judicata:

It means a matter which might and ought to have been made ground of
claim or defense in a former suit, but a party ignores it, then that issue
shall be deemed to have been a matter directly and substantially in issue
in such suit. In other words if a party had an opportunity that he ought to
have taken a plea (as a plaintiff or defendant) if he fails to do so, and the
matter is decided, the decision will operate as Res-judicata in-respect of
all issues, which were taken, and which ought and might have taken/ and
second suit would not lie for such issue.
Essential conditions of res-judicata:
For applicability of Res-judicata the following conditions must be present:
1. A previous suit in which the matter in issue directly and substantially
should have been decided.
2. A competent Court of Civil jurisdiction should have decided it.
3. It should have been decided on merits and final decision should have
been made after hearing.
4. It should contain directly and substantially same matter in issue.
5. It should have been contested between the same parties or their legal
representatives, such parties are indulging litigation under the same
title, with respect to the same cause of action.
If these conditions are fulfilled then subsequently/further instituted suit
shall be liable to be dismissed by application of doctrine of Res-judicata.