CPC NOTES

Decree-holder.

The term “Decree – holder has been defined by section 2 , sub-section3 , of the Civil Procedure Code . According to this section  “Decree holder” means  any person in whose favour a decree has been  Passed or an order capable of execution has been made.

     The definition consists of two ingredients which are as follows :-

       1)  A person in whose favor a decree is passed and whose name

      is in the record of the suit and

     2) A person in whose favor an order capable of execution has been made.

Foreign Court.

The terms “ Foreign Court “ has been defined by section 2, sub-section 5, of the Civil Procedure Code . According to this section foreign court means a court which is situated outside India and not established or continued by the authority of the central Government.

 So the High  Courts  of  England , Japan, Burma ,Ceylon and other countries are Foreign Courts. The Privy Council which was not a foreign court prior to independence  is a foreign Court now

Movable Property.

 Movable Property is defined by section 2 , sub-section 13 of the Civil Procedure Code . According to section 2, sub-section13, of the CPC movable property includes growing crops. This definition is confined to the Code only. Standing timber which is attached to the earth ,capable of vegetation is immovable property but when it stops vegetation or dried up and severed from the earth it becomes movable property . The standing crops have been intended to be severed from the earth and so they are held to be movable properties.

Public Officer .

Section 2 , Sub-section 17  of the Civil Procedure Code defines Public Officer . According to this section public officer means a person falling under any of the following eight categories , namely ;
1) every Judge ;
2) every member of an all -India Service ;
3) every commissioned or gazetted officer in the military , naval or air force of the Union , while serving under the Government ;
4) every officer of a Court of Justice whose duty it is , as such officer , to investigate or report on any matter of law or fact , or to make , authenticate or keep any document , or to take charge or dispose of any property , or to execute any judicial process , or to administer any oath , or to interrupt , or to preserve order in the Court , and every person especially authorised by a Court of Justice to perform any of such duties ;
5) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement ;
6) every officer of the Government whose duty it is , as such officer , to prevent offences , to give information of offences , to bring offenders to justice , or to protect the public health , safety or convenience ;
7) every officer whose duty it is , as such officer , to take , receive , keep or expend any property on behalf of the Government or to make any survey , assessment or contract on behalf of the Government or to execute any revenue process , or to investigate , or to report any matter affecting the pecuniary interest of the Government , or to make , authenticate or keep any document relating to the pecuniary interests of the Government , or to prevent the infraction of any law  for the protection of the pecuniary interests of the Government ; and
8) every officer in the service and pay of the Government , or remunerated by fees or commission for the performance of any duty 

Q :- Distinguish between resjudicata and estoppel.

Q :- Distinguish between resjudicata and estoppel.

Answer :-

Some jurists have sometimes  said that the resjudicata is a part of the doctrine of estoppel . But the doctrine of resjudicata and the doctrine of estoppel  essentially differ from each other . Estoppel is the doctrine of law of evidence and prevents any party from blowing hot and cold at different occasions according to his sweet will . On the other hand , resjudicata prevents a person from harassing other by successive litigations on the same cause  . The points of difference may be better explained by the following tabular form .

Resjudicata	Estoppel
1. The principle of resjudicata is a part of law of procedure and is founded on the ground of public policy that there should be an end to the litigation. It is contained in section 11 of CPC.	On the other hand , the principle of estoppel is a part of law of Evidence and founded on the principle of equity that one should not be permitted to say different things at different occasions .It is contained in section 115 of the Indian Evidence Act .
2. The Doctrine of resjudicata is the        result of a decision of a Court of law .	Whereas doctrine of estoppel is the result of the act of parties .
3.  Resjudicata ousts the jurisdiction of Court and prohibits the Court from trying any matter or issue already finally decided.	Whereas estoppel is only a rule of evidence and prohibits a party from proving a different fact , other than what he stated earlier , by adducing evidence  .
4.The truth of the former decision  is conclusively presupposed by the plea of resjudicata.	The rule of estoppel prevents a person from denying what he once induced another to believe to be true and to act upon it.
5. Resjudicata  binds both the parties to a litigation .	Estoppel binds only that party who made the previous statement.
6. The doctrine of resjudicata aims at bringing an end to the litigation.	The doctrine of estoppel aims at keeping a party at only one point what he stated to be true and induced another to act upon such belief.
7. Resjudicata shuts the door of a person to open it for agitating the same cause in successive litigations .	On the other hand , estoppel shuts the mouth of a person to speak hot and cold at different occasions .

Q :- What is the suit of a civil nature ? What is the nature of the suit in which right to property or to an office is contested ? Will it make any difference if such right depends entirely on the decision of questions as to religious rights or ceremony

Q :- What is the suit of a civil nature ?

What is the nature of the suit in which right to property or to an office is contested ?

Will it make any difference if such right depends entirely on the decision of questions as to religious rites or ceremonies ?

Will a suit lie against an intruder for a declaration that the office of a religious order is vested in the plaintiff ?

Answer :-

Section 9 of the Civil Procedure Code confers jurisdiction on the civil courts .

Section 9 of CPC provides that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is expressly or impliedly barred.

What are the suits of civil nature has been explained by the Explanation I and II of section 9 .

According to the explanation I , a suit in which right to property or to an office is contested is a suit of civil nature  notwithstanding that such rights may depend entirely upon  the decision of question as to religious rites or ceremonies .

Explanation II says that for the purpose of this section , it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not  such office is attached to a particular place .

Therefore , it is clear from the Explanation I of section 9 that it will not make any difference if such right  to property or to an office  depends entirely on the decision of questions as to religious rites or ceremonies .

In the case of Vanamalia Ramanuja Jeer Vs. Shri Ranga Ramanuja Jeer , Hon’ble Supreme Court of India laid down that  the following principles are  to be borne in mind when deciding the question as to whether a right to a religious office would be a right of a civil nature :-

i) A declaratory suit simpliciter for religious honour and privileges is not a suit of a civil nature.

ii) A suit for a declaration and to establish one’s right to an office in a temple and to honours , privileges , remuneration or requisites attached to such an office , is a suit of civil nature .

iii)  In order to mean an office the holder of the office should be under a legal obligation to discharge the duties attached to the said office and for non-observance of  which penalties can be inflicted on him .

The general rule of law is that when a religious office is situated in a temple , shrine , etc. , the  right to such office is a right of a civil nature , even though no fees are attached to it but when such an office is not attached to any place the right will not be of a civil nature unless a fee is attached to the office .

The caste question is related to social privilege and so it is not a legal right but when it relates to the property of a caste , the civil court  will have jurisdiction to interfere .The suits for vindication of dignity attached to an office are not suits of a civil nature . The right to bury a corpse is a civil right , therefore , a suit to establish such right is a suit of civil nature .

By the words “suits expressly barred “ section 9 of CPC  means to say  that there are certain types of suits which are barred by the code itself , such as –

i) Section 11 of CPC or resjudicata barred the trial of a suit , in which the matter or issue of the parties has already been decided by a competent court .

ii) Section 47  barred the determination of all questions relating to execution , satisfaction , and discharge of decrees .

iii) Section 10 , Section 95 , Order 2 Rule 2 , Order 9 Rule 9 and Order 22 Rule 11 also barred to file fresh suit .

And by the words “Suits impliedly barred “  section 9 of CPC  means to say that there are certain types of suits which are ---

i) barred by general principles of law , and

ii) barred on the ground of public policy .

Some statutes also barred the jurisdiction of civil courts and conferred the jurisdiction on Tribunals.

Suit against intruder :-

According to the Explanation I of section 9 of CPC a suit in which the right to property or to an office is contested is a suit of a civil nature . An office may be either secular or religious . Fees may be or may not be attached to the religious office. Explanation II to section 9 of CPC says that it is immaterial whether or not i) any fees are attached to the office , or ii) such office is attached to any particular place . Therefore a suit , according to the explanations I and II of section 9 of the CPC ,   against an intruder for a declaration that the office of a religious order is vested in the plaintiff is a suit of civil nature and so such suit lies in the civil court .

Q :- What do you understand by the term decree ? What is order ? What is the difference between decree and order ? What are the deemed decrees ?

Answer :-

Definition of Decree :-

Section 2 , sub-section 2 , of the Civil Procedure Code defines the term decree . According to this section decree means  the formal expression of an adjudication which , so far as regards the court expressing it , conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final . It shall be deemed to include the rejection of a plaint and the determination of any question within section 144 , but shall not include ---

a) any adjudication from which an appeal lies as an appeal from an order , or

b) any order of dismissal for default .

 A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of . It is final when such adjudication completely disposes of the suit . It may be  partly preliminary and partly final .

The term decree does not , however include

1) any adjudication from which an appeal lies as an appeal from an order .

2) any order of dismissal for default .

The essential elements of a decree are as follows :-

1) There must be an adjudication ,i.e., a judicial determination of the matter in dispute . The administrate decision on any matter is not a decree .

2) The adjudication must have been given in a suit . Suit means a civil proceeding instituted by the presentation of a plaint .

3) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit .

4) Such a determination must be a conclusive determination . There should be a conclusive decision and not merely an interlocutory order .

5) There must be a formal expression of the adjudication .

Definition of Order :-

The term Order has been defined by section 2 , sub-section 14 , of the Civil Procedure Code as the formal expression of any decision of a Civil Court which is not a decree .

Orders are of two kinds , appealable orders and non-appealable orders .

The essential ingredients of an order are as follows :-

1)  It should be as the formal expression of any decision .

2) The decision should be pronounced by the Civil Court .

3) The formal expression should not be a decree .

Distinction between Decree and Order :-

The essence of the distinction between decree and order lies in the nature of the decision rather than manner of it’s expression . The main distinctions between the two are as follows :-

1) A decree can only originate from a suit commenced by presenting a plaint . But an order may originate from a suit , it generally arises from a proceeding commenced on an  application .

2) A  decree is an adjudication which conclusively determines the  rights of the parties with regard to any or all matters in controversy . On the other hand , an order may or may not finally determine the rights of the parties .

3) A decree may be preliminary or final but there is no such distinction in order.

4) Except in certain suits where two decrees , one preliminary and the other final , are passed  , in every suit , there is only one decree . On the other hand many orders can be passed in a single suit .

5) A first appeal always lies from a decree , unless otherwise expressly provided by section 96 of C.P.C . Appealability is the rule and non – appealability is the exception in the case of a decree . However , no appeal lies from an order , unless it is one of the appealable orders according to section 104 or Or. 43 of C.P.C .

6) In case of decree , an aggrieved party , has the right to second appeal on the grounds mentioned in section 100 of C.P.C . But in case of appealable order an aggrieved party does not have the right to second appeal. 

What are deemed decrees ?

According to the definition , the term decree shall be deemed to include the rejection of a plaint and the determination of any question within section 144. So when decrees are drawn up after passing of the –

i) order of rejection of plaint and

ii) order determining any question within section 144 ,

those decrees are called deemed decrees .

Q :- Under what conditions a civil court will stay the trial of a suit ? State in brief objects and conditions for applicability of section 10 of CPC .

Answer :-

The doctrine of res-subjudice aims to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations with respect to the same  cause of action , same subject matter and same relief claimed. This doctrine of res-subjudice is embodied in  section 10 of the Civil Procedure Code .

Section 10 of CPC lays down that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties , or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed , or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the Supreme Court of India.

Explanation to section 10 provides that the pendency of a suit in a foreign Court does not preclude the courts in India from trying a suit founded on the same cause of action .

The object of section 10 is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action , same subject matter and same relief

claimed . What is contemplated by section 10 is that institution of the second suit is not barred , only the trial thereof shall not be proceeded . Section 10 authorises a civil court to stay the subsequent suit and not to dismiss it . Policy of the law is to keep the plaintiff confined in one suit or litigation . This obviates multiplicity of suits as well as the possibility of contradictory verdicts by two or more courts with respect to the same cause action .

To attract the provisions of section 10 the following  conditions must remain present -----

1) There must be two suits , one instituted previously and the other subsequently .

2) The matter in issue in the subsequent suit must be directly and substantially the same as like that of  the previous suit .

3) The suits must be between the same parties or their successors or representatives in interest .

4) The  previously instituted suit must be pending in the same court or in any other court in India or in any court beyond the limits of India established or continued by the Central Government or before the Supreme Court .

5) The court in which  the previous suit is instituted should be competent to grant relief  in that suit as well as in the subsequent suit .

6) The parties must be litigating in both the suits under the same title .

When the above conditions are fulfilled the court shall not proceed with the subsequent suit . This provision is mandatory and not discretionary as the word used in the section 10 is “shall” and not “may” . The order of stay u/s 10 of CPC can be passed at any stage of the suit .

Q :- What is resjudicata ? Enumerate the conditions which must be satisfied in order to constitute a matter resjudicata .

 Answer :-

                        What is resjudicata ?

The maxim nemo debet bis vexari pro una at eadem causa means no one  should be vexed twice for the same cause . This maxim is popularly known as the doctrine of resjudicata . Doctrine of resjudicata , which is a latin term , is embodied in  section 11 of the Civil procedure Code aiming at  finality to  litigation.

This doctrine was recognized much earlier in the Hindu Jurisprudence as prang – nyaya in the Brihaspati Smriti by providing that if a person who has been defeated in a suit according to law , files his plaint once again , he must be told that he has been defeated already .

The rule intended to prevent new investigation as well as harassment of a person again and again in various litigations on the same cause . It is based  on the two grounds , 1) public policy and 2) hardship to an individual . The principle of resjudicata does not oust jurisdiction or cognizability of Civil Court but it bars retrial and decision once again on the matter what is concluded . The doctrine is founded on justice , equity and good conscience .

Section 11 of CPC provides that no Court shall try any suit or issue,  in which the matter directly and substantially in issue , has been directly and substantially in issue in a former suit between the same parties ,or between the parties under whom they or any of them claim litigating , under the same title , in a Court competent to try such subsequent suit , or the suit in which the issue has been subsequently raised , and has been heard and finally decided by such Court .

Section 11 also contains eight explanations to clarify the principle of resjudicata .

                     Conditions to constitute resjudicata :-

The following five conditions must remain present to constitute a matter resjudicata :-

1) Identity of matter in issue =The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue , either actually or constructively , in the former suit . The explanation iv of section 11 provides that any matter which might and ought to have been made a ground of defence or attack in such former suit is to be deemed to have been a matter directly and substantially in issue in such suit .

2) Identity of Parties = The former  suit must have been between the same parties or between the parties under whom the parties of subsequent suit or any of them claim . Explanation vi clarifies by providing that where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others , all persons interested in such right are , for the purposes of this section , to be deemed to claim under the persons so litigating.

3) Same title = In the former suit , the parties must have litigated under the same title as like that of the subsequent suit .

4) Concurrence of Jurisdiction = The Court which have decided the former suit must have been a Court which is competent to try the subsequent suit . Explanation 2 also clarifies the matter by laying down that for the purpose of this section , the competence of a Court is to be determined irrespective of any provisions as to a right of appeal from the decision of such court .

5) Final decision = The matter which is directly and substantially in issue in the  subsequent suit must have been heard and finally decided by the Court in the former suit . Explanation v also says that any relief claimed in the plaint , which is not expressly granted by the decree , is , for the purposes of this section , to be deemed to have been refused .

Q:- What is constructive resjudicata ? When can a matter be a resjudicata in between the co-defendants ?

Answer :-

The doctrine of resjudicata lays down that no Court shall try any suit or issue, in which the matter is directly and substantially in issue , has been finally decided by a competent Court in a former suit between the same parties litigating under the same title . Resjudicata deals with the matter which is directly and substantially in issue . But circumstances may arise when the matter is constructively in issue . It may happen that in the former suit the plaintiff or defendant could take a ground of attack or defence but did not do it and being failed in the former suit they again come with a new ground of attack  or defence . This taking of new ground of attack or defence , subsequently , is barred by constructive resjudicata , on the ground that he ought to have taken this ground of defence or attack in the former suit . The constructive resjudicata deems , in that event , that the matter was directly and substantially in issue in the former suit. The scope of constructive resjudicata , therefore , is more wide that resjudicata .

Explanation iv to section 11 of CPC provides the doctrine of constructive resjudicata.

It says that any matter which might and ought to have been made a ground of defence or attack in such former suit is to be deemed  to have been a matter directly and substantially in issue in such suit .

Let us suppose that A filed a suit against B , praying for a declaration of his title upon a land , on the ground that he is co-owner . The competent court having jurisdiction decided the suit negatively and dismissed the prayer of declaration of title of A over the land . Subsequently , A again files a suit , against B  , praying for a declaration of his title upon the same land , on the ground of adverse possession . The subsequent suit is barred by the principle of constructive resjudicata . The doctrine of constructive resjudicata , here deems , that the matter of adverse possession was directly and substantially  in issue in the former suit .

Resjudicata in between co-defendants.

Like resjudicata between the plaintiff and defendant , a matter may be resjudicata in between the co-defendants . Three conditions are essential for a matter to be resjudicata between the co-defendants . These three conditions are as follows :-

1) There must be a conflict of interest between the co-defendants in the former suit.

2) It must be necessary that the Court decided that conflict in order to give an appropriate relief to the plaintiff which the plaintiff claimed in the former suit .

3) The conflict between the defendants must have been finally decided by a Court of competent jurisdiction.

Where all these conditions are present , the decision of former suit operates as resjudicata in the subsequent suit against the co-defendants .

Q :- What do you mean by the term pleadings ? What are the general rules as to pleadings ?

Answer :-

Definition of pleadings :-

Order 6 , Rule 1 , of the C.P.C defines pleading to mean a plaint or a written statement .

 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 . Written statement is the statement of the defendant  , in writing and filed by the defendant , in  which he deals with every material facts alleged by the plaintiff in plaint and also states  any new fact  which may be in his favour adding such legal objections as he wishes . A plaintiff’s pleading may also be his written statement , as where the defendant , in his written statement , pleads a  set –off or a counter claim . In such a case , the plaintiff has to file his written statement in answer thereto . Thus , an application to sue as pauper is not a pleading , in as much as it becomes a plaint only after the application is granted .

General rules as to pleadings :-

The following are the rules which have to be borne in mind while drafting pleadings :-

1) Pleading must state the facts and not law.

2) It must state only material facts on which the party relies for his claim or defense.

3) The facts must be in the form of a concise statement but in aiming conciseness precision should not be sacrificed. The pleadings when necessary, shall be divided into paragraph numbered  consecutively. Dates, sums any figures shall be expressed in figures.

4) Pleading must contain only the facts on which the party pleading relies for his claim or defence, and  not evidence by which the party relies for his claim or defense.which they are to be proved.

5) Performance of condition precedent being implied, it need not be alleged. The opponent must specify the conditions, the performance or occurrence of which he intends to contest.

6) Where the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof, are material.

 7) Allegations in anticipation of the opponent’s answer should not be made. The pleading should be confined to what is material at present stage of the suit.

8) Facts necessary for the enforcement of a legal right or duty must be mentioned. Thus, in a suit for breach of contract on account of the negligence of the defendant, it has to be stated specially what kind of duty the defendant owed to the plaintiff and how was he negligent.

9) Legal pleas such as estoppels, limitation and res-judicata may be pleaded.

10) In cases where the party pleading relies on any misrepresentation ,fraud, breach of trust willful default or undue influence, particulars shall be stated in the plaint.

11) Facts which the law presumes need not be pleaded.

12) The party should not plead conclusions of law. The pious obligation of a Hindu son to pay his father’s debts need not to be pleaded. But foreign law and certain customs and usages are not judicially taken notice of by court and must be pleaded as facts.