CPC-notes(Code of Civil procedure notes ), Lecture notes for Law

CPC-notes(Code of Civil procedure notes ), Lecture notes for Law

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M. S. RAMA RAO B.Sc., M.A., M.L.

Class-room live lectures edited, enlarged

and updated


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[with Amendments of 1999 & 2002]

By M. S. RAMA RAO B.Sc.,M.A.,M.L

Text and Reference Books :

Mulla Civil Procedure CodeSarkar : Code of Civil ProcedureMulla : Key to Indian Practice C. P. C.

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Substantive and procedural laws are two branches of law from jurisprudential stand-point, and the Civil Procedure Code belongs to the latter. Civil Procedure, in contradistinction to Criminal Procedure, deals with the steps that the parties-plaintiff & the defendant- should take from the time of commencement of the Civil proceeding until its conclusion. Amendments to CPC in 1999 and 2002 [operative from 1st July 2002] aim at meeting the problem of inordinate delay in civil Courts. Justice delayed is Justice denied. It is hoped that these changes help solving the procedural delays to a great extent. One of the remarkable features of the C.P.C. is that each party to a dispute is provided with an equal and fair opportunity to present his case before the Court.

The volume of the subject (Sns. 1 to 158 read with Order 1 Rule 1 to Order 51 Rule 1), is formidable and presents much difficulty to the student inasmuch as, without practical exposure to the courts, he-finds himself traversing in the strange land of imagination and inferences. He must take active and practical steps to learn these procedures and participate in the moot- courts, and, attend the Civil courts ..

No amount of observing and reading literature will convert a person a swimmer, until he gets into water and starts his maiden-attempt! Where accommodative advocates are available it would be profitable to take instructions and guidelines on procedures-forms, rules, devices governing Civil proceedings and also to attend actively the civil courts and make productive use of his time


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3 CONTENTS Chapters

Introduction & Question Bank1. Suits of a Civil Nature 7 2. Res Subjudice & Res Judicata

1 .Res subjudice (Stay of suit) 102. Res Judicata 3. Constructive 4. Res Judicata & estoppel

3. Suits against the Govt. 15 4. Indigent Person

1. Informa pauperis 2. Papuper Appeals

5. Preliminary Topics 181. Pleadings

a) Plaint b) Written Statements

2. Parties to suit 4 Framing of Suit and procedure 5 Summons –issue and delivery 5 .1Recording of evidence 5a) Suit by Minor Non appearance of parties

6 Setting aside exparte decree

.Suit dismissed for default 7. Court appoint of Guardian 8. Death of a party 9. Transfer of suit 10. "Cost follow the event" 11. Rateable distribution 12. Subsistence allowance 12.1 Out of court settlement

6. Temporary injunction 39 7. Attachment & Arrest 41

1. Grounds for attachment & . .

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4 Properties exempted 362. Arrest & Procedure to arrest

8. Commissions 43 9. Receiver 44 10. Judgment decree and order 45

1. Judgment & decree 2. Order 3. Order & decree

11. General 471. Substituted Service 2. Remand 3. Restitution 4. Caveat 5. Representative Suit 6. Next friend 7. Legal Representative 8. Interrogatories

9 Foreign Judgment

10. Public Nuisance 11. Mesne Profits 12. Garnishee 13. Precept 14. Inter-pleader Suit

12. Reference, Review & Revision 551. Reference 2. Review 3. Revision .

13.Appeal to Supreme Court 5714. Miscellaneous 58

1. Abatement of Suit 2. Withdrawal 3. Consent-decree 4. Compensatory Costs 5. Place of suing 6. Parties to Suit

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5 7. Frame of Suit 8. Inherent powers of the Court

15. Appeal, Execution etc 621. Appeal from original decree 2. Second Appeals REFERENCE SECTION 64

QUESTIONS BANK1 Explain, with illustrations, suits of a Civil Nature.

2 Discuss the doctrine of Res Judicata'

3 Explain the procedure to be followed to file a case against the Government.

4 What is informa pauparis ? Detail the Procedure provided for in the C.P.C. to file a suit by an indigent person.

5 Foreign judgement operates as a Res Judicata between the parties in India. Explain. Refer to exceptions.

6 Explain the provisions that enable the courts to grant Temporary Injunctions.

7 (1) What are the grounds for attachment & state properties which cannot be attached (2) Explain 'Arrest before judgement'3.Detail issue & service of Summons.

8 How & for what purpose is a Commission appointed, Explain its powers & functions 9 .1) Define & distinguish an order from a decree. (2) Explain Reference, Review, Revision

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6 10.(1) Discuss the doctrine of Restitution. (2) Write a note on interpleader suit. 11 Explain how appeals are made to the Supreme Court from Civil Proceedings 12 Detail the provisions relating to the place of suing and joinder of parties.2.Explain Alternate Dispute Resolution [Out of Court Settlement]

3 Explain:(i) Res subjudice (ii) Constructive Res judicata

.(iii) Caveat (iv) Remand (v) Next friend (vi) Garnishee(vii) Precept (viii) Consent-decree.

14 Write Short notes on : • (i) Public Nuisance (ii) Mense Profits (iii) Interrogatories (iv) Substituted service (v) Representative suit (vi) Legal Representative (vii) Abatement of suit (viii) Withdrawal of the suit, (ix) Compensatory costs.

15. What is a Plaint ? What are its contents? When is it rejected or returned.

16. What defenses can be taken in written Statements. 17. Detail the procedure to be followed for issue and service of summons under C P C 1999.

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SUITS OF A CIVIL NATURE Ch.1 Suit of a Civil Nature:

Civil Suits are divided into : i) Suits of a civil nature and ii) Suits not of a civil nature.The Civil courts have jurisdiction to try suits of a

Civil nature. They have no jurisdiction to try suits not of a Civil-nature. This principle is laid down in Sn.9 of C.RC. It says that the Civil Courts have jurisdiction to try all suits of a Civil nature excepting those that are expressly or impliedly barred.

The C.P.C. 1976 has added two explanations.i) A suit in which the right to property or to an

office is contested, is a suit of a Civil nature, even though such a right is connected with a religious right or with religious ceremony,

ii) It is immaterial whether or not any fees had been attached to an office or such an office was attached to a particular place or not,

Eg.: i) Suits of Civil nature: Matters relating to Easement, Adoption, Marriage, title to property, to run a customary bull race,, right to burial.

ii) Suits not of a civil nature: Suit for claiming dakshina for worship at a temple by the pujari (worshipper), politicalquestions etc.

Suits expressly barred: Remedy of a workman against termination order, is barred as the remedy is in the Industrial Disputes Act. Suits dealing with Act of State & public policy are barred.

The cardinal rule is therefore that the Civil Courts can entertain only suits of a civil nature. But, vexed problems do come before the courts with mixed rights civil & religious. The courts are guided by certain procedural principles in such circumstances.

i) If the main question or the only question is in respect of caste or religious right or ceremonies it is not of a civil nature but, if the religious right is only a subsidiary question, then it is of a civil nature. Further, if

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8 the main question cannot be decided without deciding the religious or caste question then, the matter is of a civil nature and the courts have jurisdiction.

Expulsion from caste (Excommunication). This will deprive a person of his legal right which forms part of his status. Hence, suit will lie. However, excluding a member from invitation to caste dinners or ceremonies will deprive him a social privilege, and hence no civil suit can be filed.

Similarly a) No civil suit can be filed to compel a pujari to adorn an idol at a certain season.

b) Suit in respect of a mere dignity attached to an office is not of the civil nature. The suit of a swamiji ,that he should be carried on the high road in a palanquin is not a suit of a civil nature as it is .only a religious honour.

ii) If the main question is a civil or a legal right, it is a civil nature. Therefore, a right to an office is a suit of a civil nature. Office may be secular or religious.

A religious office may be of two kinds :a) Those offices to which fees are attached as of ight.Eg. Khaji, Aya of a Mutt, Joshi of a village, or

pujari of a temple, Upadayaya of a Caste.b) Those offices to which no fees is attached.

Hence, the officer may be receiving an ex gratia. No civil suit can be filed to recover ex gratia amounts

.The Bombay High Court had maintained a distinction between (1) an office attached to a sacred place (2) office not so attached. It allowed cases under (1) and not under (2)

To override this new C.P.C. provides that whether any fees is attached or not and whether the office is attached to any religious place or not, it is a suit of a civil nature.

iii) Interference with temple properties. Eg.: Removing the name or other religious mark is of civil nature. Right to worship at a certain place is of a civil nature. Right of burial is a civil right. Carrying religious procession on the highway is a civil right. Hence, a civil suit may be filed.

iv) Examples:

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9 1. Right of an elected person to act as such 2. Right to vote or stand for election 3. Suit for dissolution of marriage 4. Right of a club or Association member to

continue as member

5. Suit for rent contribution, mesne profits, etc.

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RES SUBJUDICE & RES JUDICATACh. 2.1 Res-Subjudice: Sn .10 CP.C.

This means 'a right under judicial consideration'.

In order to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue, provisions are made in Sn.10 C.P.C.

Such a matter is said to be 'Res Subjudice' if the matter previously instituted is pending in another court of competent jurisdiction.

What is barred is the second suit instituted. The second court should not proceed with the trial of the suit if:

i) The matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties.

ii) The previously instituted suit must be (a) in the same court in which the second, suit is brought or (b) in any other court original or appellate.

iii) The previously instituted case must be pending in any of the courts as above or Supreme Court competent to grant the relief.

E.g.: B residing in Calcutta, has an agent A at Mysore to sell goods. A sues B in Mysore for balance due on account. During the pendency of the suit B institutes a suit against A, in Calcutta. The Calcutta court must not proceed as the matter is re-subjudice in Mysore Court. The suit must be stayed.

Exception: If a suit is pending in a Foreign Court, the suit is not barred in India and hence, a suit may be filed.

The provisions in Sn 10 are mandatory. It also applies to proceedings under Art 226 of the Constitution.

Ch.2.2. Res Judicata : Sn. 11 C.P.C.

Res Judicata means 'right decided’. This means 'the matter is adjudicated' and hence, the competent court has already decided the matter. The rule is that the second trial should be barred to prevent multiplicity of proceedings. This rule was laid down in the Duchess of Kingstone's case by Sir William de Gray, Judge. However, several conditions are to be fulfilled to bar the jurisdiction of the second court.Conditions

i) The matter directly & substantially in issue in the subsequent

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suit must be the same matter which was directly and substantially in issue either directly or constructively in the former suit. Former suit is a suit which has been decided prior to the suit in question.

a) A sues B for breach of contract. The suit is dismissed. A subsequently sues B for damages for breach of contract orl the same contract. This-is barred under Re Judicata.

b) A sues B for rent due for the year 1995. The defense is that the rent has been paid and that there are no dues. Hence, the claim for rent is the matter directly and substantially in issue.

ii) The former suit must have been between the same parties or between their representatives.

iii) The parties to the suit must have litigated under the same title in the former suit,; same title means the same capacity.

Eg.: A a mahnt of a Hindu mutt, dies. His heir B sues 'S' to recover mutt property from him. The suit is dismissed on the ground that the heir had not taken out succession certificate. But later B is appointed duly as the manager of the mutt. He can sue 'S' and there is no res Judicata.

iv) The court which decided the former suit should have been a court competent to try the subsequent suit.

If the first court had exclusive jurisdiction, then that court's jurisdiction will act as res Judicata to bar any subsequent suit.

If the first court had concurrent jurisdiction then that court is competent hence res judicata operates.

Hence, if the first court had neither exclusive nor concurrent jurisdiction, it has no jurisdiction at all. Hence res judicata will not apply. The suit may be initiated.

v) The matter directly and substantially in issue in the subse- quent suit must have been heard and finally decided by the court in the suit.

There must be final decision, the matter is heard and finally decided in any one of the following ways:

(a) Ex Parte (b) Dismissal (c) Decree (d) Dismissal due to plaintiffs failure to produce evidence.

Explanation :- Sn 11 has 8 explanations : According to themi) The matter in the former suit should have been alleged by one

party and admitted or denied by the otherii) Competence of court is decided irrespective of a provision

to an appeal in the earlier suit,iii) "Matter" which might'or ought to have been agitated or

defended in the earlier suit shall be the matter directly or substantially in issue.

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iv) Relief, if not, granted in earlier suit shall be constructed as rejected. Amendments of C.P.C. 1976.

i) To avoid multiplicity of proceedings it is provided that the District court may try the suit or transfer it to a court with competent jurisdiction if the court finds that the case involves a question which a court of limited jurisdiction would be incompetent to try.

ii) Before the new C.P.C. under res judicata the successful party was barred in respect of adverse findings of the court. Now, it is not barred, and he may file an appeal against such adverse findings.

iii) The doctrine is now extended to independent proceedings and also to execution proceedings.

Ch.2-3. Constructive res judicata.According to Sn.ll, Explanation iv: a matter may be actually

or constructively in issue. Matters may be directly in issue. These are clear from the pleadings in the plaint and the

written statement. However, there may be matters 'might have been' or 'ought to have been' made by the parties (the plaintiff in his averment or the defendant in his written statement).

If the parties have failed in the previous suit to bring out these, then under the rule of res judicata, the matter is deemed to have been in issue directly and substantially, and it is also deemed to have been heard and decided. The result is that in such cases, the suit is barred under res Judicata.

Eg.: A sues B to recover certain property belonging to the estate of C. The ground was that C & D were brothers; on the death of C, the property came to me survivor D and that D had adopted 'A'. D, died and the property had come to B. A claimed as adopted son. The suit was dismissed as adoption was not proved. Later A sued B alleging that he was a 'bandhu' of C and hence was entitled. This is barred by constructive res Judicata. B ought to have pleaded that he was a 'bandhu' in the earlier suit. Suit dismissed

Ch. 2.4. Res judicata and estoppel Distinguished:

Though res judicata is sometimes treated as part of the doctrine of estoppel, still they are essentially different.

Res judicata Estoppel1. Res judicata under Sn.ll, is Estoppel as per Sn.115 ofbased on public policy. It is the Evidence Act is byessentially procedural. Based conduct of parties, oron "Nemo dabet bix vexari" (No agreement or estoppel in

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one should be vexed twice) to pais.put an end to litigous tendency. This is essentially aWhat is barred in the second suit rule of evidence. It ison the same cause of action based on the rule that if

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14 between the same parties and subject to other conditions of Sn.ll.

2. Res judicata ousts the juris diction of the court in the second suit. 3. Deals with jurisdiction of the second court itself and bars it from exercising jurisdiction.

a person induces another to alter his situation, he cannot take advantage of such altered situation. He will not be allowed to contradict himself.Estoppel shuts the mouth of the party from blowing hot and cold in the same breath.This is by a party and hence he is prevented from going back on his earlier statement.

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SUITS AGAINST GOVT.Ch.3 Sns 79 & 80 Suits against Government

Suits may be (i) General or (ii) of a particular kind.

In respect of suits in general it is not necessary to give notice to the defendant before filing a civil suit. However, in respect of suits against the Government, it is essential that notice under Sn. 80 C.P.C. must be served. The object is to provide an opportunity to the Govt. to reconsider the legal position, and to amend or settle the claim without any litigation. The Central Government shall be called the Union of India and the State Government shall be called the State, e.g. state of Karnataka for the purpose of serving notice. Period of notice: Two months Notice is essential, as per sn.80

In respect of suits, against the Central Government notice must be given to the Secretary to the Government. (If it relates to the rail- way, notice must be given to the General Manager of the railways).

In respect of suits against State the cause of action Govern- ment notice must be given to the Secretary to that Govt. or the Collector of the District, as the case may be.

The notice must be in writing, state the name and description and place of residence of the plaintiff and also the relief which he claims.

In case of a public officer, notice under Sn.80 must be delivered to him or left at this office.Plaint

The plaint shall contain a statement stating that notice under Sn.80 has been so delivered or left in the office of the person so

concerned. If notice has not been so served, then the suit is to be dismissed.

The new C.P.C. Sn.80(2) provides that when a suit to obtain an urgent or immediate relief is to be filed then no notice is necessary if the court so permits. The court in such circumstances shall give the Govt. or the Officer, reasonable opportunity of showing cause. The court also, decides whether there is urgency or not.

No suit under Sn.80 shall be dismissed merely on technical grounds of error or defect in the notice.

If there is no urgency to grant relief, the Court returns the plaint for presentation after giving notice .It must identify the cause of action and reliefs claimed, in the notice and in the plaint.

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INDIGENT PERSONCh. 4.1 Informa Pauperis

(Suits by indigent person)Provisions are made in C.P.C. to enable a pauper to file a suit

subject to certain conditions. 0.33rr. 1 to 16 provide for this.A person is a pauper when he is not possessed of sufficient

means to pay the court fee to institute a suit. Where no such fee is prescribed, the person is a pauper when his entire property is below Rs.1000/- value excluding his necessary wearing apparel and of course the matter of the suit.Suit

0.33 provides for the procedure to file a suit informa pauperis. Every application for leave (permission) to sue informa pauperis must contain the particulars as required in a plaint. Also a schedule of any movable or immovable property with estimated value should be annexed. The plaint should be duly signed and verified.Presentation

The application should be presented to the Court by the appli- cant or agent capable of answering material questions put to him by thecourt.Examination

The applicant is examined, if the application is proper and duly presented and if the court thinks fit to examine. The examination relates to the merits of the claim and property of the applicant.Rejection

The court rejects the application:i) If it is not framed and presented in the prescribed manner.

I ii) If the applicant is newfound to be a pauper.iii) If the applicant has fraudulently disposed of his property within two months next before instituting the suit.iv) If there is no cause of action.

v) If there is a transfer of interest in the subject matter of the proposed suit, to some other person.

HearingIf there is no reason to reject the application, the court shall fix

a day for receiving the evidence by the applicant to prove his pauper- ism. Evidence to disprove pauperism may be allowed. (Notice to the

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opposite party and Govt. pleader necessary). On the day fixed the court shall examine the witnesses produced by either party and may examine the applicant and make a memorandum thereof. Thereupon the court may give its decision allowing the application or its refusal.

Admission of application: If the application is granted it should be numbered and registered. It shall be deemed to be a plaint and the suit shall proceed of course without payment of Court fees.Dispaupering

i) If the plaintiff is guilty of vexatious or improper conduct in the course of the suit.

ii) If his means are more than a pauper.iii) If the plaintiff transfers his interest in the subject matter,The court may dis-pauper him. Under the new C.P.C. the court

is empowered to assign a pleader to an indigent person who is not represented by a pleader Order 33, Rule 18 also provides for free legal services to such persons.Costs

Where the plaintiff succeeds, the court shall calculate the amount of court fees and recover the same from the plaintiff.

Ch. 4.2.: Pauper AppealsA pauper who is entitled to go for an appeal but who is unable

to pay the fees is allowed to appeal as a pauper subject to the same provisions as provided above.

The court entertains the appeal if, the lower court's decision is contrary to law usage or is erroneous or unjust.

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PRELIMINARY TOPICSCh. 5.1. Pleadings :

i) Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial, and giving all such details as his opponent to know, in order to prepare his case in answer (P.C. Mogha).

There are two pleadings : The 'Plaint' & the 'Written Statement'.

The C.P.C. defines pleadings (O.VI R.2) Every pleading shall contain, and contain only a statement in a concise form of the material facts, on which the party pleading relies for his claim or defense, as the case may be, but not the evidence by which they are to be proved.

According to Sri. P.C Mogha :Drafting of pleading is an art, it requires a good

knowledge of law and the skill of sorting out material facts from the whole bundle of facts and circumstances brought to the knowledge of the Advocate.

ii) Essentials :a) Every pleading must state facts and not law :Eg : The deft, is in possession of the mortgaged property and

'is liable to render accounts of income and expenditure'. (There is a statutory duty and hence, need not be pleaded)

b) Pleadings should have only material factsThe party must plead all material facts on which he intends to

rely and must plead material facts only. These are 'facta probenda' (Facts to be proved).

1. In a claim on a Promissory note, it is unnecessary to plead, that money was given because of the honesty of the promisor.

2. In denying, the receipt of any money taken as a loan, it is unnecessary to plead that the defendant is a very rich man and that he had never taken any loan from any body.

c) Pleadings should not contain the evidence, but only facts :Eg: An Insurance company was defending the claims made by

a party. The term of the policy was that it would become void if the insurer-died by his own hand'.

In the written statement the Company had stated that policy

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holder was a moody fellow, that he had bought a pistol from a shop a few days before his death and that he had also written to his wife that he would kill himself. The court held that all this was evidence and hence should not be included in the pleadings (Written Statement). It was sufficient to say that "the policy holder died by his own hand".

d) Facts must be pleaded with simplicity, brevity and precision.This rule is more easily said than done. As P.C. Mogha, points

out, precision and brevity can be attained by experience and careful observation.

1. Simple words and short sentences should be used. Facts must be stated plainly and with precision. Use of pronouns must be avoided. The said defendant or the said plaintiff may be used often to avoid ambiguity. Similarly 'the said deed', the First-schedule property' etc may be used.

2. Dates, sums, numbers must be expressed in figures. 3. Chronological order must be followed. 4. Legal effects of documents must be briefly stated, without reproducing the document or quoting from it.

5. Intention, malice, knowledge etc., must be stated as a fact without setting out the circumstances.

6. The pleading should be signed by the parties and his advocates. It shall be verified at the foot to testify the sanctity of the fact stated.

7. Ch. 5.1.1. Plaint (0.7, R.1) CP.C.

The plaint is the foundation of the Civil Case. Before drafting it 4 essentials are to be noted 1) Period of limitation (ii) Pecuniary or territorial jurisdiction of the court (iii) Statutory formalities before filing a suit (iv) Impleading all necessary parties.Contents :

1) Headings : The name of the Court (Space for fixing Court - fee - stamps) 2) Title : Description of Plaintiff and Defendant 3) Body : States the material facts divided into paragraphs and numbered consecutively. 4) Relief - Claims or Amounts sued for 5) Valuation, court fee - paid 6) Jurisdiction of court, within period of limitation, etc..

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7) List of documents, annexure 8) Signature and Verification

PLAINT (Proforma)In the court of....... at ........Original Suit (O.S.) No......... of 2012A S/o, B, aged 40, residingat No....... Street ....... Place . Plaintiff


C/S/o D, aged 45, residing at No. ........ Street ..... Place DefendantThe above named plaintiff states as follows : 1 ............ .........2......... ............3 ..... . ...............

4. The Cause of action arose on..... ........when the defendant ..............5. The defendant is resident in.. .......... andwithin the jurisdiction of this Honorable court6. The value of the subject matter of the suit for the purpose of court fee and jurisdiction is Rs ....... 7. The suit is filed within the period of limitation 8. The plaintiff claims 9.

Signature of Advocate (of the Plaintiff) Signature of Plaintiff VERIFICATION

I, ........... (Plaintiff) ...... declare that the facts stated above inparagraphs 1 to ....... above are true to my knowledge, informationand belief in token whereof affix my signature at ..... on the .... dayof..... (month) 2012. '

Signature of the Plaintiff

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Affidavit: According to the new Sn 26, the C P C Amendment Act of 1999 it is mandatory that all the facts mentioned in the plaint are proved by way of an affidavit. Hence, an affidavit is a must.

[Sn 26(2) says In every plaint, facts shall be proved by affidavit." ] Summons to Defendants : Section 27 C P C provides for the issue of summons to the defendants in a suit to appear and answer the claim within 30 days of the institution of the suit. Earlier, the section did not provide any time limit for the plaintiff to serve the summons on the defendants. That resulted in long delays.

Ch.5.1.2. WRITTEN STATEMENTDefence available to defendant in a Civil Suit (Essentials of W.S.)

The written statement can be conveniently divided into following heads

1. The heading and title or formal portion 2. The body of the W.S.

. \a) Admission and Denial part b) Additional pleas

c) Objection in point of law

d) Special defences and avoidance ^Verifications

1. The heading and the title :The heading of the W.S. should be the same as that of the

plaint. Then there should be the number of the suit. Title also should be the same as that of the plaint with the difference that if there are several plaintiffs, the name of the first plaintiff should only, be written with the addition of words 'and another' or 'and others'. After the title, the person on whose behalf the W.S. is filed should be shown. In some places, the words "The defendant states as follows" are used before the various paragraphs of the W.S., but this is not necessary.

The rules about signature and verification of the W.S. should be carefully observed.

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Eg : In the court of .......... Munsiff, MysoreO.S. No.118 of 2012Kannapa and others..... ...... PlaintiffsVersusKrishnappa and others .........Defendants.Written statement under Order VIII Rl C.P.C. First Defendant begs to state as follows :

1 that



Verification signature of Defendant

2. The body of the W.S. a) Admissions and Denials :The defendant should take each fact in the same order in

which it is alleged in the plaint and it should be either admitted or denied, or when the defendant has no knowledge of it, he may refuse to admit. General denial is not sufficient. A denial may be total or partial. When the denial is total, i.e., when the defendant totally and categorically denies the allegations in the plaint, the defence is said to be in form"traverse".

•. . ' . ' .i) Dilatory pleas :

. Dilatory pleas are those which merely delay trial of suit on merits. But, pleas which go to the very root of the case are called peremptory plea, or pleas in bar.

ii) Objection in point of Law :It is an objection which a defendant takes to the legal

inference which is drawn by the plaintiff in his favour in the plaint. Ordinarily this is heard and decided at the time of trial, but the court should try that objection before proceeding with trial of other issues, if the case (or any part there of) can be disposed of on the decision of such objection.

iii) Special defence :«•

Order 8, Rule 2 contains the rule : which says that the defendant must rise, by his pleading, all matters which show the suit not maintainable, or that the transaction is void, or

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voidable in point of : law, and all such grounds of defence, as for instance, fraud, limitation, release, payments, performance, or facts showing illegality etc.

In a suit by a firm, if the defendant wants to plead its non-maintainability on the ground of the firm's non- registration, it will not be sufficient to say that plaint does not allege that the firm is registered.

2. Pecuniary (Sns. 6 & 15) :

The civil courts have different grades to try suits of a civil nature. Small causes courts have Jurisdiction upto a fixed amount. However, High courts, District and Civil judge courts have unlimited pecuniary jurisdiction. 3. Subject matter:

The jurisdiction in civil matters is based on the subject matter as well.

i) Generally, money suits are confined to small causes courts upto a fixed amount. Matrimonial matters are to be initiated at the District Judges court. Various acts prescribe which court has jurisdic tion. ;

ii) The suit is to be instituted where subject matter i.e., immov- able property is situated.

The general rule is that parties cannot create or oust the juris- diction of the courts.

Ch. 5.2.2. Suit by or against a partnership FIRM order 30 Rules 1 to 10 C.P.C. deal with provisions to file a suit by or against a firm. Partnership firms1. Partners may sue or be sued in the name of the firm:

According to 0.30 R.I, any two or more persons claiming (or being liable) as partners, and carrying on business in India, may sue or be sued in the name of the firm. These persons should be partners of the firm at the time of accrual of the "cause of action". Further, any party to the suit, may apply to the court for a statement of names and addresses of the persons who were partners (at that time of accrual of cause of action) in such firm and this is to be furnished by the party and verified in such manner as the court may direct.

All pleadings (plaint, written statement etc) may be verified or signed by any such person (partner).

The suit is not affected, if there is a minor in the firm, or one who is not capable of suing or be used.

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2. Partners' name and addresses:When the suit is filed in the name of the firm, the defendant may

in writing demand the names and addresses of all the partners and the plaintiff shall furnish the same to the court.

If the plaintiff fails to so furnish, the court may stay all proceedings on such terms as it may direct. However, if the names and addresses are declared, the suit shall proceed, with the partners arrayed in the plaint. The proceedings continue in the name of the firm, but the names are to be entered in the decree of the court.3. Summons : .

Provisions are made for service of summons. If persons are named in the cause title, the summons shall be served on any partner or partners or at the place of business as directed by the court. This is good service of summons.

However, if the plaintiff has knowledge, at the time of filing the suit that the partnership firm has been dissolved summons will have to be served on every such partner of the said dissolved firm.

Appearance is necessary, if the person is a partner. Otherwise, he may enter appearance under protest (Rule 8), stating that he was never a partner at any material time. The court decides whether that person was a partner or not.

When the partners are sued in the name of their firm, they should make appearance, in their names but subsequent proceedings shall be in the name of the firm.

Death : In case of death of a partner, it is not necessary to join the legal representative. But a legal representative has a right to apply to the court to be made a party.Suits between partners:

R.9 provides for suits between partners of the same firm. Similarly, in case of two or more common partners in two firms, suits by one firm against the other may be filed.

5.2.3. Suit by a minor : (0.32 Rl to 16)

A minor or infant is regarded by law as of immature intelligence and discretion. Due to want of capacity and judgment, he is disabled from binding himself, except for his,»,own benefit. Order 32 is therefore specially made to protect the interests of minors. These provisions apply to persons of unsound mind. The objective is to see that a minor or unsound person is represented by a qualified person, to act on his behalf.Suit:

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