CODE OF CIVIL PROCEDURE
- General PrinciplesSalem Advocates Bar Association (II) v. Union of India, AIR 2005 SC 3353
The Preamble of the Code states that the object of the Code is two fold; (1) to consolidate and (2) to amend the laws relating to the procedure to be followed in civil courts. It is a procedure designed to facilitate justice and further its ends, not a penal enactment for punishment and penalties.
- Mahohar Lal v. Seth Hiralal, AIR 1962 SC 527
Code is exhaustive on the matters specifically dealt in it. However, the legislature is incapable of contemplating all possible circumstances that may arise in civil litigation therefore, with regard to those circumstances the court has inherent powers to act according to principles of justice, equity and good conscience. Such inherent powers of the court is saved under Section 151 of the Code.
Jurisdiction and Suits of Civil Nature
- Kiran Singh v. Chaman Paswan, AIR 1954 SC 340
Defect of jurisdiction goes to the root of the decree or order. A decree passed without jurisdiction is a nullity. Supreme Court held that a decree passed without jurisdiction is a nullity. A defect of jurisdiction strikes at the very authority of the court and it cannot be cured even by the consent of the parties.
- Dhulabhai v. State of M.P., AIR 1969 SC 78, Kamla Mills v. State of Bombay, AIR 1965 SC 1942
Every presumption is made in favour of jurisdiction of the court. Provision of exclusion of jurisdiction of the courts must be strictly construed. In case of doubt as to jurisdiction the courts will lean in favour of jurisdiction.
- Hakam Singh v. Gammon (India) Ltd., AIR 1971 SC 740
When two or more courts have jurisdiction to entertain a suit, an agreement by the parties to submit to the jurisdiction of any one of such courts to the exclusion of other is valid and binding.
- Shashi Prakash Khemka (Dead) through LRs. v. NEPC Micon (Now called NEPC India Ltd.) & Ors., (2019) SCC Online SC 223 70 (IBC)01/2019
The Supreme Court observed that the jurisdiction of the civil court is completely barred in matters in respect of which power has been conferred on the National Company Law Tribunal.
- Most Rev. P.M.A. Metropolitan v. Moran Mat Marthom, AIR 1995 SC 2001
The words ‘civil nature’ are wider than the words ‘civil proceedings’. Section 9 would be available in every case where the dispute has the characteristics of affecting one’s rights which are not only civil but of civil nature.
- Om Prakash Agrawal v. Vishan Dayal Rajpoot, (2019) 14 SCC 526
The policy underlying Section 21 of the Code of Civil Procedure is that when the case has been tried by a court on merits and the judgment has been rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in failure of justice. If the objections as to territorial or pecuniary jurisdictions are not taken at the earliest possible opportunity then it cannot be allowed to be taken at a subsequent stage.
- Hiralal v. Kalinath, AIR 1962 SC 199
There is a difference between inherent lack of jurisdiction and mere lack of territorial or pecuniary jurisdiction. Inherent lack of jurisdiction goes to the root of the matter. An objection regarding the lack of territorial or pecuniary jurisdiction is merely technical and does not go to the root of the matter.
Res Sub Judice and Res Judicata
- Indian Bank v. Maharashtra State Coop. Marketing Federation, (1998) 5 SCC 69
Since rule under Section 10 applies to the trial of the suit and not the institution it does not preclude the courts from passing interim orders such as grant of injunction, appointment of receiver etc.
- Pukhraj D. Jain v. G. Gopal, AIR 2004 SC 3504
The object of Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The decree passed in contravention of this section is not a nullity as it enacts a mere rule of procedure.
- Satyadhyan Ghosal v. Deorijin Debi, AIR 1960 SC 941
The principle of res judicata is based on the need of giving finality to judicial decisions. Primarily it applies between past litigation and future litigation.
- Workmen v. Board of Trustees, Cochin Port Trust, AIR 1978 SC 1283
Where any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made then such a matter is deemed to have been constructively in issue to avoid multiplicity of litigation.
- Iftikar Ahmed v. Syed Meharban Ali, AIR 1974 SC 749
A matter may be res judicata between co-plaintiffs and co-defendants also if the following conditions are satisfied.
- There must be a conflict of interest between co-plaintiffs and co-defendants;
- It must be necessary to decide such conflict in order to give relief to the plaintiff;
- The questions between co-defendants and co-plaintiffs must be finally decided;
- Co-defendants/plaintiffs were necessary or proper parties in the former suit.
- Sheodhan Singh v. Daryo Kumar, AIR 1966 SC 1332
Decision on the former suit must have been on merits and so matter cannot be said to be finally decided when the former suit was dismissed by trial court for want of jurisdiction or for default of plaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties etc.
- Gulam Abbas v. State of Uttar Pradesh, AIR 1981 SC 2198
Section 11 is not exhaustive. Rules of res judicata enacted in Section 11 have some technical aspects. The general doctrine is founded on considerations of high public policy to achieve objectives i.e., there must be finality to litigation and that individual should not be harassed twice over with the same kind of litigation.
- Sardar Maloji, Nar Singh Roa v. Sankar Saran, AIR 1962 SC 1767
Rules laid down in Section 13 are rules of substantive law and not merely procedural law.
Parties to Suit
- Swapna Mohanty v. State of Odisha,(2018) 17 SCC 621
Globe Ground (India) Employees Union v. Lufthansa German Airlines, (2019) 15 SCC 273
Necessary party is a person whose presence is necessary in order to effectually and completely adjudicate upon and settle all issues raised in a dispute. It is a party in absence of whom no effective order can be made. A proper party is one in whose absence effective order can be made, but whose presence is necessary for complete and final decision.
- Aliyathammuda Beethathebiyyappura Pookoya v. Pattakal Cheriyakoya and Ors (2019), (2019) 16 SCC 1
Supreme Court held that a compromise decree in a representative suit obtained without the leave of the court and without issuing notice to the parties interested would be void.
Order 2 Rule 2
- Kewal Singh v. Lajwanti, AIR 1980 SC 161
Before the bar of Order 2. Rule 2 is invoked the following three questions are to be asked:
- Whether the cause of action in the previous suit and subsequent suit is identical?
- Whether the relief claimed in the subsequent suit could have been given in a previous suit on the basis of pleadings made in a plaint?
- Whether the plaintiff omitted to sue for a particular relief on the cause of action which was disclosed in the previous suit?
- Ganesh Trading Co. v. Moji Ram, AIR 1979 SC 484
Provision relating to pleadings in civil cases are meant to give each party an intimation of the case of the other so that it may enable the court to determine the real issue between the parties.
- M. Revanna v. Anjanamma (2019) (2019) 4 SCC 332
Supreme Court, held that while considering the amendment application after commencement of trial the courts have to consider whether it is bona fide or mala fide and whether it causes such prejudice to the other side which cannot be compensated adequately in terms of money.
- Usha Devi v. Rijwan Ahmad, (2008) 3 SCC 717
The merits of the amendment sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment.
- Varun Pahwa v. Renu Chaudhary, (2019) 15 SCC 628
Amendment of plaint to rectify inadvertent procedural mistake by advocate describing parties in cause title of suit/ memo of parties is permissible. Rules of procedure cannot defeat substantive rights of parties.
- Shaukat Hussain Mohd. Patel v. Khatunben Mohmmedbhai Polara, (2019) 10 SCC 226
While dealing with the application for rejection of plaint, entirety of plaint averments has to be taken into consideration.
- Colonel Shrawan Kumar Jaipuriyar @Sarwan Kumar Jaipuriyar v. Krishna Nandan Singh and another (2019) Civil Appeal No. 6760 of 2019 on 02.09.2019
The Supreme Court has observed that a plaint can be rejected Order VII Rule 11 of the Code of Civil Procedure, when it is manifestly vexatious, meritless and groundless, in the sense that it does not disclose a clear right to sue. A mere contemplation or possibility that a right may be infringed without any legitimate basis for that right, would not be sufficient to hold that the plaint discloses a cause of action.
- Ashok Kumar Kalra v. Wing Cdr Surendra Agnihotri and others, (2019) Supreme SC 1280
The Supreme Court has held that a Court can exercise its discretion and permit the filing of a counter-claim after the written statement, till the stage of framing of the issues of the trial. Order VIII Rule 6A of the CPC does not pose an embargo on filing the counter-claim after filing the written statement.
Appearance and Non-Appearance of Parties
- G.P. Srivastava v. R.K. Raizada, AIR 2000 SC 1221
The words ‘sufficient cause’ must be liberally construed to enable the court to exercise powers ex debito justitae. ‘Sufficient cause” for the purpose of O.9 R.13 has to be construed as elastic expression for which no hard or fast rule can be laid down. The material date for deciding the ‘sufficient cause’ for non-appearance by the defendant is the date on which ex parte decree was passed and not his previous negligence or past defaults.
- Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993
There is no material difference between facts established for satisfying the two tests of ‘good cause’ under O. 9 R.7 and ‘sufficient cause’ under O. 9 R.13. There cannot be a good cause’ which is not ‘sufficient’.
- Sneh Latha Goel v. Pushplata, (2019) 3 SCC 594
The Supreme Court observed that an executing court has no jurisdiction to decide whether the court which passed the decree had territorial jurisdiction. An objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit.
- Kiran Singh v. Chaman Paswan, AIR 1954 SC 340
A court executing a decree cannot go behind the decree and must execute it as it stands. It has no power to entertain any objection as to the validity, legality or correctness of the decree. In case of inherent lack of jurisdiction, the decree of the court is a nullity and its invalidity can be enforced, whether in execution or collateral proceedings.
- Sushil Thomas Abraham v. M/s Skyline Builders, (2019) 3 SCC 415
The Supreme Court has held that rejection of application by a plaintiff under Order 33 Rule 1 of the Code of Civil Procedure (seeking permission to institute the suit as an indigent person) by the trial court in the earlier round of litigation is not a bar against the plaintiff to file an application/appeal under Order 44 Rule 1 of the Code and seek permission from the appellate court to allow him to file an appeal as an indigent person.
- Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225
Supreme Court laid down following factors which must guide the court before granting ex parte interim injunction:
- Whether the refusal of ex parte interim injunction would involve a greater injustice than the grant of it would involve;
- The court would expect utmost good faith from the party applying for grant of ex parte interim injunction;
- Whether irreparable and serious mischief will ensue to the plaintiff;\
- General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court;
- Even if ex parte interim injunction is granted it would be for a limited period.
- Samir Narayan Bhojwani v. Aurora Properties and Investment, (2018) 17 SCC 203
Interim mandatory injunction can only be granted in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties and the interest of the justice demands that thestatus quo ante be restored. The moulding of relief can be considered at the time of consideration of final relief and not at the interlocutory stage.
- Manohar Shankar Nale v. Jaipalsing Shivlalsing Rajput,
Where a review petition is dismissed, the doctrine of merger will have no application whatsoever. It is one thing to say that the judgment debtor was entitled to file an application for review in terms of S. 114 read with O. 47, R.1 of C.P.C. but another thing to say that the decree passed in favour of the decree holder merged with the order dismissing the review application.
- Narayana Gramani v. Mariammal, (2018) 18 SCC 645
Exercise of power by High Court in Second Appeal:
- Second appeal can be entertained only when the High Court is satisfied that the case involves ‘substantial question of law’.
- Once the High Court is satisfied that there is ‘substantial question of law’, it shall frame it and then issue notice to the respondents.
- Jurisdiction of the High Court is restricted only to decision on such ‘substantial question of law’.
- Any finding on issue without framing the substantial question of law on that issue would render it without jurisdiction.
- Generally, the ‘substantial question of law’ is framed in the absence of the respondent. He is given the liberty to urge that the case does not involve substantial question of law.
- Sital Prasad v. Kishori Lal, AIR 1967 SC 1236
The object of section 97 is to prevent preliminary questions being raised in the form of appeal after a case has been decided on merits. Since passing of preliminary decree is only a stage prior to the passing of final decree, if an appeal is preferred against a preliminary decree succeeds, the final decree automatically falls to the ground.
- Chunnilal Mehta v. Century Spinning and Mgf. Co. Ltd., AIR 1962 SC 1314
Supreme Court laid down the following principles regarding ‘substantial question of law.
- If the question is of general public importance, or it directly and substantially affects the rights of the parties.
- It is an open question, that is to say it is not finally settled by Supreme Court or Privy Council or Federal Court.
- Bansidhar Sharma(Since Deceased) v. The State of Rajasthan, 2019 (14) SCALE 658
The Supreme Court has observed that the provisions of Section 144 of the Code of Civil Procedure will not be attracted when there is no variation or reversal of a decree or order. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost.
- Tushar Kanti v. Savitri Devi, AIR 1996 SC 2752
The report of the Commissioner would furnish prima facie evidence of the facts and data collected by the Commissioner. It will constitute an important piece of evidence and cannot be rejected except on sufficient ground. It would be open to the court to consider what weight is to be attached to the data collected by the Commissioner.
- Barwari Lal v. Chando Devi, AIR 1993 SC 1139
A court passing a compromise decree performs a judicial act and not a ministerial act. Therefore, the court must satisfy itself that the agreement is lawful and it can pass a decree in accordance with it and that such decree can be enforced against all the parties to the compromise.
- Afcons Infrastructure Ltd. v. Cherian Varkey Constructions Co. (P) Ltd., (2010) 8 SCC 24
Court enumerated the case in which ADR processes can be resorted to:
- All cases relating to trade, commerce and contracts.
- All cases arising from strained relationship, such as matrimonial cases.
- All cases where there is need for continuance of pre-existing relationships
- All cases relating to tortious liability, including motor accidents claims.
- All consumer disputes.
Civil courts should invariably refer cases falling in above category to ADR processes. Only in certain recognized excluded categories the court need not refer to ADR process.