code of civil procedure, 1908

THECODE OF CIVIL

PROCEDURE, 1908[Amended by Act No. 46 of 1999 &

Act No. 22 of 2002]

By

Justice P.S. NarayanaJudge, High Court of A.P.

Assisted by

P. Jagadish Chandra PrasadAdvocate, High Court of A.P.

Opp. High Court, Hyd-2, Ph. 24526212, 24566212 Fax : 24564007

Opp. I.O.B., Bank Street, Hyderabad-95 Ph. 24742324, 24608000

E-mail : [email protected] www.asialawhouse.com

ASIA LAW HOUSE

3rd Edition

1. Subs. for sub-section (3) by Act 104 of 1976, w.e.f. 1-2-1977.

THE CODE OF CIVIL PROCEDURE, 1908[Act 5 of 1908]

[21st March, 1908]

An Act to consolidate and amend the laws relating to the procedureof the Courts of Civil Judicature.

Whereas it is expedient to consolidate and amend the laws relatingto the procedure of the Courts of Civil Judicature ; it is hereby enactedas follows:

Preliminary

1. Short title, commencement and extent: (1) This Act maybe cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January, 1909.

(a) the State of Jammu and Kashmir;1[(3) It extends to the whole of India except,

(a) the State of Jammu and Kashmir;

(b) the State of Nagaland and the tribal areas:

Provided that the State Government concerned may, bynotification in the Official Gazette, extend the provisions ofthis Code or any of them to the whole or part of the Stateof Nagaland or such tribal areas, as the case may be, withsuch supplemental, incidental or consequential modificationsas may be specified in the notification.

Explanation: In this clause, "tribal areas" means the territorieswhich, immediately before the 21st day of January, 1972, were includedin the tribal areas of Assam as referred to in paragraph 20 of the SixthSchedule to the Constitution.

(4) In relation to the Amindivi Islands, and the East Godavari,West Godavari and Visakhapatnam Agencies in the State of AndhraPradesh and the Union Territory of Lakshadweep, the application ofthis Code shall be without prejudice to the application of any rule or

1CPC1

The Code of Civil Procedure, 19082

regulation for the time being in force in such Islands, Agencies or suchUnion Territory, as the case may be, relating to the application of thisCode.]

CASE LAW

Section 1 of the CPC deals with the aspect of short title, commencementand extent.

Consent or waiver or acquiescence can confer jurisdiction upon a Court.AIR 1966 SC 634.

A right to worship is a civil right. AIR 1971 SC 2540.

Civil Court cannot entertain a suit which is not of a civil nature. AIR 1961SC 1720.

A suit for demarcation of boundary relating to property is a dispute of civilnature. AIR 1987 SC 2137.

The exclusion of the jurisdiction of the Civil Courts must either be explicitlyexpressed or clearly implied. AIR 1971 SC 71.

Where the Revenue Tribunal is conferred with jurisdiction to deal withcertain matters, the jurisdiction of the Civil Court is barred to deal with suchmatters. AIR 1997 SC 3082.

The essential conditions of a decree are

1. the adjudication must be given in a suit ;

2. the suit must commence with a plaint and culminate in a decree ;

3. the adjudication must be formal and final and it must be given by acivil or a revenue Court. AIR 1976 SC 1503. See AIR 1987 Pat 33 ; AIR 1986Ker 49 ; AIR 1986 All 9 ; AIR 1980 MP 114.

Where decree is ambiguous it has to be interpreted in the light of judgmentand pleadings. AIR 1951 SC 189.

An order under Section 47 CPC is not a decree in view of CPC AmendingAct, 1976. AIR 1990 MP 317 ; AIR 1983 Ori 127 ; AIR 1983 Raj 145 ; AIR1980 AP 208; AIR 1980 Gau 3 ; AIR 1978 Ker 201 ; AIR 1978 Ori 129;AIR 1978 Raj 127 ; AIR 1988 AP 226 ; AIR 1987 Pat 33.

An order rejecting plaint under Order 7 Rule 11 CPC is a decree. AIR1975 MP 74.

An order relating to probate or letters of administration is not a decree.AIR 1984 Cal 16 = 1983 (2) Cal H.N. 156.

Order passed in execution may not amount to decree. AIR 1988 AP 226.

[Sec. 1

3Modification of partition decree also affects rights of the parties and hencea decree. AIR 1984 Pat 344.

Return of plaint to be presented to proper Court is not a decree. AIR 1967Pat 338.

An order of Tribunal under the Displaced Persons Act is not a decree.AIR 1976 SC 1503 = 1976 (2) SCC 800.

The mere withdrawal of suit may not be termed as decree as it does notdecide the controversy between the parties. AIR 1969 Ker 78 ; AIR 1982 GoaDaman Diu 25. See AIR 1997 SC 1686

Granting a decree without judgment on the basis of plaint is illegal. AIR1969 SC 1167.

There is fundamental distinction between a proceeding which is collusiveand one which is fraudulent. Collusion in judicial proceedings is a secretarrangement between two persons that the one should institute a suit against theother in order to obtain the decision of a judicial tribunal for some sinister purpose.AIR 1956 SC 593.

Where a decree is passed in a suit barred by time it is only illegal butnot a nullity. AIR 1964 SC 907.

A decree passed by a Court without jurisdiction is a nullity. AIR 1954SC 340.

Judgment is final decision of the Court intimating the parties and to theworld at large but formal pronouncement or delivery in open Court. AIR 1954SC 194; For delivery of judgment ; See AIR 1976 SC 2037 = 1976 (3) SCC574 ; AIR 1966 All 221; AIR 1964 SC 993; AIR 1981 SC 2085 ; AIR 1984SC 1268.

A Judge shall pronounce judgment written but not pronounced by hispredecessor. AIR 1960 MP 18 ; AIR 1953 Ori 298; AIR 1976 Raj 239.

Unnecessary derogatory remarks should not be made in judgment. AIR 1990SC 1737 = 1990 (2) SCC 533 = 1990 (1) J T 545.

Order 20 Rule 3 requires the judgment to be dated and signed by the Judgein the open Court. AIR 1957 All 67.

When judgment is pronounced in open Court, non signing is only anirregularity and not fatal to judgment. AIR 1976 Raj 239.

Judgment of Small Cause Courts need not contain more than the pointsfor determination and decision thereon. AIR 1934 Pat 243 ; AIR 1943 Nag 117;AIR 1922 Lah 122.

Judgment of other Courts shall contain :

Sec. 1] Preliminary


1. a concise statement of the case,

2. the points for determination

3. the decision thereon

4. the reasons for such decision. AIR 1953 SC 235; AIR 1987 SC 1436;AIR 1973 Mad 110; AIR 1969 SC 1167.

Ex parte judgment also must satisfy all the requirements of law under Order20 Rule 4 CPC. 1995 (1) CCC 465 (All).

Where an observation was made in a judgment against a party against whomno relief was sought, such observation will not be binding on such person. AIR1987 Mad 173 = 1986 Mad L.W. 655.

Order 10 Rule 5 CPC specifies that Court shall state its decision on eachissue. AIR 1993 MP 194 ; AIR 1986 Ori 104; AIR 1985 SC 736; AIR 1986All 215; AIR 1965 Ker 189 ; AIR 1948 Mad 488.

Judgment not to be altered or added to save as provided by Section 152or on review. AIR 1966 All 221 ; AIR 1977 Kar. 203 ; AIR 1967 SC 1440;AIR 1992 All 50 ; AIR 1992 Ker. 26 ; AIR 1988 SC 371.

The law of procedure is based on principles of Natural Justice. AIR 1958SC 321.

CPC had been extended to Pondicherry under Pondicherry (Extention ofLaws) Act, 1968 on 5-9-1968. AIR 1982 Mad. 436.

CPC consolidates and amends the law of procedure of Civil Courts. AIR1955 SC 425 ; AIR 1964 Raj. 140.

Provisions of CPC are not applicable to writ proceedings. AIR 1977 AP250; AIR 1979 All. 128.

Provisions of CPC are not applicable to controller of Patents. AIR 1934Cal. 725 or income tax proceedings. AIR 1967 Mad.337.

For meaning of Scheduled Districts see : AIR 1958 Pat. 603.

Provisions of CPC are not applicable to proceedings under Special Enactments.AIR 1990 Del. 186 ; AIR 1987 Ker. 126.

Act 46 of 1999 and Act 22 of 2002 valid AIR 2003 SC 189.

Distinction between Court and Tribunal AIR 2004 Kar 1;

Suit for rendition of accounts and pecuniary jurisdiction . AIR 2004HP 11.

Warrant of attachment and Bombay High Court (original side) Rules, 1980 AIR 2004 Bom 1.

[Sec. 1

5Suit for partition compromise decree. 2003 (1) An W R 66 Sec AIR2001 SC 2790; 2003 (7) SCC 452.

Decree substance not form. AIR 2003 SC 2434.

Object of procedural law is to shorten litigation. 1993 Punj.L.J. 745.

Code not exhaustive. AIR 1962 SC 527; AIR 1975 Cal. 377; 1978 (2)An.WR 308; AIR 1978 Pat. 318; AIR 1951 Hyd. 124; AIR 1930 Bom. 216;AIR 1930 All. 875.

Judicial discretion be guided by Judicial principles, Justice and equity. AIR1924 Bom. 1.

Unless contrary intention is expressed by the Legislature procedural Lawwould be retrospective. 2006 (1) SCC 141.

The Code deals with procedural matters. AIR 1964 Raj. 140.

Scope and ambit of the Code See: AIR 1930 All. 875; AIR 1962 SC527; 1978 (2) An.W.R. 308; AIR 1978 Pat. 318; AIR 1975 Cal. 377;

Rules under Sections 122 and 128. AIR 1980 Ker. 180; AIR 1979 Del.217.

Code and Rules AIR 1992 Mad. 40.

Section 9 CPC and Section 7(5) of the Wakf Act, 1995 AIR 2007 SC1447.

2. Definitions: In this Act, unless there is anything repugnant in thesubject or context,

(1) "Code" includes rules;

(2) Decree means the formal expression of an adjudication which,so far as regards the Court expressing it, conclusively determines the rightsof the parties with regard to all or any of the matters in controversy inthe suit and may be either preliminary or final. It shall be deemed to includethe rejection of a plaint and the determination of any question within 1[xx x] Section 144, but shall not include

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

(b) any order of dismissal for default.

Explanation: A decree is preliminary when further proceedings haveto be taken before the suit can be completely disposed of. It is finalwhen such adjudication completely disposes of the suit. It may be partlypreliminary and partly final;

Sec. 2] Preliminary

1. The words and figures "Section 47 or", omitted by the Code of Civil Procedure (Amendment)Act, 1976, S. 3, w.e.f. 1-2-1977.


(3) decree-holder means any person in whose favour a decree hasbeen passed or an order capable of execution has been made;

(4) district means the local limits of the jurisdiction of a principalCivil Court of original jurisdiction (hereinafter called a District Court), andincludes the local limits of the ordinary original civil jurisdiction of a HighCourt;

1[(5) foreign Court means a Court situate outside India and notestablished or continued by the authority of the Central Government;]

(6) foreign judgment means the judgment of a foreign Court;(7) Government Pleader includes any officer appointed by the State

Government to perform all or any of the functions expressly imposed bythis Code on the Government Pleader and also any pleader acting underthe directions of the Government Pleader;

2[(7-A) High Court in relation to the Andaman and Nicobar Islands,means the High Court in Calcutta;

(7-B) India, except in Sections 1, 29, 43,44, 3[44-A,] 78, 79, 82,83 and 87-A, means the territory of India excluding the State of Jammuand Kashmir;]

(8) Judge means the presiding officer of a Civil Court;(9) Judgment means the statement given by the Judge on the grounds

of a decree or order;(10) judgment-debtor means any person against whom a decree

has been passed or an order capable of execution has been made ;(11) legal representative means a person who in law represents

the estate of a deceased person, and includes any person who intermeddleswith the estate of the deceased and where a party sues or is sued in arepresentative character the person on whom the estate devolves on thedeath of the party so suing or sued;

(12) mesne profits of property means those profits which the personin wrongful possession of such property actually received or might withordinary diligence have received therefrom, together with interest on suchprofits, but shall not include profits due to improvements made by the personin wrongful possession;

(13) Movable property includes growing crops;

(14) order means the formal expression of any decision of a CivilCourt which is not a decree;

[Sec. 2

1. Subs. by Act 2 of 1951.2. Inserted by Act 2 of 1951, Sec. 4.3. Inserted by Act 42 of 1953, Section 4 and Schedule III.

7(15) pleader means any person entitled to appear and plead foranother in Court, and includes an advocate, a vakil and an attorneyof a High Court;

(16) prescribed means prescribed by rules;

(17) public officer means a person falling under any of the followingdescriptions, namely:

(a) every Judge:

(b) every member of 1[an All-India Service]:

(c) every commissioned or gazetted officer in the military 2[naval orair] forces of 3[the Union] 4[x x x] while serving under theGovernment;

(d) 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 disposeof any property, or to execute any judicial process, or to administerany oath, or to interpret, or to preserve order, in the Court, andevery person especially authorised by a Court of Justice to performany of such duties;

(e) every person who holds any office by virtue of which he isempowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as suchofficer, to prevent offences, to give information of offences,to bring offenders to justice, or to protect the public health,safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive,keep or expend any property on behalf of the Government, orto make any survey, assessment or contract on behalf of theGovernment, or to execute any revenue process, or toinvestigate, or to report on, any matter affecting the pecuniary

Sec. 2] Preliminary

1. Subs. for "the Indian Civil Service" by Act 104 of 1976, w.e.f. 1-2-1977, Sec. 3.2. Subs. for "or naval" by Act 35 of 1934, Section 2 and Schedule.3. Subs. for "His Majesty" by the A.O. 1950.4. The words "including His Majesty's Indian Marine Service" omitted by Act 35 of 1934,

Section 2 and Schedule.


interests of the Government, or to make, authenticate or keep anydocument relating to the pecuniary interests of the Government,or to prevent the infraction of any law for the protection of thepecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remuneratedby fees or commission for the performance of any public duty;

(18) rules means rules and forms contained in the First Scheduleor made under Section 122 or Section 125;

(19) share in a corporation shall be deemed to include stock,debenture stock, debentures or bonds; and

(20) signed, save in the case of a judgment or decree, includesstamped.

1[xxx]

CASE LAW

Collusion in judicial proceedings is a secret arrangement between twopersons that the one should institute a suit against the other in order to obtainthe decision of a judicial tribunal for some sinister purpose.

The mere fact that the defendant agrees with the plaintiff that if a suitis brought he would not defend it, would not necessary prove collusion. Itis only if this agreement is done improperly in the sense that a dishonest purposeis intended to be achieved that they can be said to have colluded. AIR 1964SC 1889.

Under Section 2(12) of the Civil Procedure Code which contains thedefinition of mesne profits, interest in an integral part of mesne profits andhas, therefore, to be allowed in the computation of mesne profits itself. Thatproceeds on the theory that the person in wrongful possession appropriatingincome from the property himself gets the benefit of the interest on whichincome. AIR 1965 SC 1231.

Section 2(18) defines rules as rules means rules and forms contained inthe First Schedule or made under Section 122 or Section 125. AIR 1992Mad. 40.

Succession Certificate is not a decree. AIR 1986 Kar. 167. Intermeddleris a legal representative. AIR 1971 Mys. 141. Definition of legal representative

[Sec. 2

1. Clause (21) Inserted by the A.O. 1950, omitted by Act 2 of 1951, Section 4.

9is very wide. AIR 1976 H.P. 74. See : AIR 1957 Raj. 283 ; AIR 1981 HP87 ; AIR 1987 Pat. 239 ; AIR 1978 AP 173 ; AIR 1976 Mad. 303 ; AIR1952 Pat. 380; AIR 1965 MP 72 ; AIR 1989 SC 1589 ; AIR 1979 P & H194.

For definition of order, see : AIR 1985 Ker. 98 ; AIR 1964 AP 216 ;AIR 1986 Kar. 167 ; AIR 1976 Cal. 415 ; AIR 1987 SC 180 ; AIR 1957All. 505. For mesne profits, see : AIR 1973 Del. 186 ; AIR 1966 SC 470; AIR 1992 Cal. 216 ; AIR 1975 AP 208 ; AIR 1961 Ori. 111 ; AIR 1986Cal. 393 ; AIR 1979 SC 1214 ; AIR 1980 Pat. 106. Compromise decree isa decree. AIR 1986 Ker. 49 ; AIR 1922 Cal. 358.

Decree can be preliminary or final or partly preliminary and partly final.AIR 1977 Kar. 60 ; AIR 1981 Ori. 1 ; AIR 1963 SC 992.

Essential elements of decree stated. 1999 (4) SCC 89. An order passedin winding up proceeding has the force of law, AIR 1970 Bom. 271.

A decree is preliminary where further proceedings have to be taken forcomplete disposal of the suit, AIR 1951 Mad. 938 ; AIR 1955 All. 552 ; AIR1930 All. 779.

Section 2(4) of CPC defines District Court and not District. AIR 2000Bom. 356. Where direction is given for mesne profits, it is a substantive rightand hence it is a decree. AIR 2000 Cal. 244. For crucial features of judgment,see 1999 (8) SCC 396. Decree to be drawn in accordance with judgment. 2002(1) Civil LJ 30.

In a suit for partition more than one preliminary decree can be passed.AIR 2001 Ker. 305. Decree to be drawn in accordance with judgment. 2002(1) Civil LJ 30.

The whole object of widening the scope of the expression legal representativewhich the present defintion is intended to achieve would be frustrated if it isheld that legatees of different portions of the estate of a deceased do not fallwithin its purview. Logically it is difficult to understand how such a contentionis consistent with the admitted position that persons who intermeddle with apart of the estate are legal representatives. AIR 1962 SC 232.

While dealing with whether a compromise decree is preliminary or finaland factors to be considered in this regard in Rachakonda Venkat Rao andothers v. R. Satya Bai (Dead) by L.R. and another,, 2003 (7) SCC 452, itwas held:

A bare reading of the definition of the word decree shows that:

(a) a decree conclusively determines the rights of the parties with regardto all or any of the matters in controversy in the suit; and

PreliminarySec. 2]


(b) a decree may be preliminary or final.

The explanation to the sub-section makes it clear that a decree is preliminarywhen further proceedings have to be taken before the suit can be completelydisposed of. It is final when such adjudication completely disposes of the suit.A decree may be partly preliminary and partly final.

It is settled law that there can be more than one preliminary decrees ina suit. Similarly, there can be more than one final decrees in a suit.

The essential conditions of a decree are

1. the adjudication must be given in a suit ;

2. the suit must commence with a plaint and culminate in a decree ;

3. the adjudication must be formal and final and it must be given by acivil or a revenue Court. AIR 1976 SC 1503. See AIR 1987 Pat 33 ; AIR 1986Ker 49 ; AIR 1986 All 9 ; AIR 1980 MP 114.

Where decree is ambiguous it has to be interpreted in the light of judgmentand pleadings. AIR 1951 SC 189.

An order under Section 47 CPC is not a decree in view of CPC AmendingAct, 1976. AIR 1990 MP 317 ; AIR 1983 Ori 127 ; AIR 1983 Raj 145 ; AIR1980 AP 208; AIR 1980 Gau 3 ; AIR 1978 Ker 201 ; AIR 1978 Ori 129;AIR 1978 Raj 127 ; AIR 1988 AP 226 ; AIR 1987 Pat 33.

An order rejecting plaint under Order 7 Rule 11 CPC is a decree. AIR1975 MP 74.

An order relating to probate or letters of administration is not a decree.AIR 1984 Cal 16 = 1983 (2) Cal H.N. 156.

Order passed in execution may not amount to decree. AIR 1988 AP 226.

Modification of partition decree also affects rights of the parties and hencea decree. AIR 1984 Pat 344.

Return of plaint to be presented to proper Court is not a decree. AIR 1967Pat 338.

An order of Tribunal under the Displaced Persons Act is not a decree.AIR 1976 SC 1503 = 1976 (2) SCC 800.

The mere withdrawal of suit may not be termed as decree as it doesnot decide the controversy between the parties. AIR 1969 Ker 78 ; AIR 1982Goa Daman Diu 25. See AIR 1997 SC 1686

[Sec. 2

11

Granting a decree without judgment on the basis of plaint is illegal. AIR1969 SC 1167.

There is fundamental distinction between a proceeding which is collusiveand one which is fraudulent. Collusion in judicial proceedings is a secretarrangement between two persons that the one should institute a suit againstthe other in order to obtain the decision of a judicial tribunal for some sinisterpurpose. AIR 1956 SC 593.

Where a decree is passed in a suit barred by time it is only illegal butnot a nullity. AIR 1964 SC 907.

A decree passed by a Court without jurisdiction is a nullity. AIR 1954SC 340.

Judgment is final decision of the Court intimating the parties and to theworld at large but formal pronouncement or delivery in open Court. AIR 1954SC 194; For delivery of judgment ; See AIR 1976 SC 2037 = 1976 (3) SCC574 ; AIR 1966 All 221; AIR 1964 SC 993; AIR 1981 SC 2085 ; AIR 1984SC 1268.

A Judge shall pronounce judgment written but not pronounced by hispredecessor. AIR 1960 MP 18 ; AIR 1953 Ori 298; AIR 1976 Raj 239.

Unnecessary derogatory remarks should not be made in judgment. AIR 1990SC 1737 = 1990 (2) SCC 533 = 1990 (1) J T 545.

Order 20 Rule 3 requires the judgment to be dated and signed by theJudge in the open Court. AIR 1957 All 67.

When judgment is pronounced in open Court, non signing is only anirregularity and not fatal to judgment. AIR 1976 Raj 239.

Judgment of Small Cause Courts need not contain more than the pointsfor determination and decision thereon. AIR 1934 Pat 243 ; AIR 1943 Nag 117;AIR 1922 Lah 122.

Judgment of other Courts shall contain :

1. a concise statement of the case,

2. the points for determination

3. the decision thereon

4. the reasons for such decision. AIR 1953 SC 235; AIR 1987 SC 1436;AIR 1973 Mad 110; AIR 1969 SC 1167.

Ex parte judgment also must satisfy all the requirements of law underOrder 20 Rule 4 CPC. 1995 (1) CCC 465 (All).

PreliminarySec. 2]


Where an observation was made in a judgment against a party againstwhom no relief was sought, such observation will not be binding on such person.AIR 1987 Mad 173 = 1986 Mad L.W. 655.

Order 10 Rule 5 CPC specifies that Court shall state its decision oneach issue. AIR 1993 MP 194 ; AIR 1986 Ori 104; AIR 1985 SC 736; AIR1986 All 215; AIR 1965 Ker 189 ; AIR 1948 Mad 488.

Judgment not to be altered or added to save as provided by Section 152or on review. AIR 1966 All 221 ; AIR 1977 Kar. 203 ; AIR 1967 SC 1440;AIR 1992 All 50 ; AIR 1992 Ker. 26 ; AIR 1988 SC 371.

Public Officers See: AIR 1958 Pat. 235; AIR 1933 Mad. 105; AIR 1931Cal. 503; AIR 1930 Cal. 737; AIR 1939 Nag. 232; AIR 1934 Nag. 201; AIR1990 SC 648; AIR 1939 Nag. 70; AIR 1970 Cal. 539; AIR 1980 Bom. 380;AIR 1980 P&H 146.

Test for determination of decree AIR 2009 SC 1089.

Award under Arbitration and Conciliation Act not a decree for the purposeof Section 9(2) of the Presidency Towns Act. AIR 2007 SC 168.

Without final decree there cannot be auction sale in suit for partition. AIR2007 SC 1077.

Mere withdrawal without liberty to file fresh suit being without adjudication,not a decree. AIR 2007 SC 1575.

Dismissal of suit for non prosecution Not appealable It can be restored.AIR 2006 SC 2759.

Mesne Profits Reduction or modification. AIR 2009 SC 1972.

3. Subordination of Courts: For the purposes of this Code, theDistrict Court is subordinate to the High Court, and every Civil Court ofa grade inferior to that of a District Court and every Court of Small Causesis subordinate to the High Court and District Court.

CASE LAW

Section 3 is not exhaustive. AIR 1963 AP 37. Motor Accident ClaimsTribunal is not a Civil Court. AIR 1985 SC 263. See : 1983 ACJ 123 ; AIR1985 Kar. 208.

Election Court is not a Civil Court. AIR 1972 AP 120.

Collector under Bombay Mamlatdars Act is subordinate to High Court.ILR 37 Bom. 114.

[Sec. 3

13

Sub-Collector under Act IV of 1938 Madras is a Civil Court. AIR1944 Mad. 139.

Expression Civil Court. AIR 1963 AP 37; AIR 1966 Mys. 5.

Land Acquisition Judge not subordinate to District Judge but to High Court.AIR 2007 SC 137.

4. Savings: (1) In the absence of any specific provision to thecontrary, nothing in this Code shall be deemed to limit or otherwise affectany special or local law now in force or any special jurisdiction or powerconferred, or any special form of procedure prescribed, by or under anyother law for the time being in force.

(2) In particular and without prejudice to the generality of the propositioncontained in sub-section (1), nothing in this Code shall be deemed to limitor otherwise affect any remedy which a landholder or landlord may haveunder any law for the time being in force for the recovery of rent ofagricultural land from the produce of such land.

CASE LAW

Section 4 CPC deals with savings. AIR 1954 Cal. 347 ; AIR 1985 Cal.169; AIR 1981 Punj. 301 ; AIR 1985 Punj. 214 ; AIR 1962 Ker. 343 ; AIR1973 Raj. 219; AIR 1965 Pat. 472 ; AIR 1963 All. 549.

CPC is applicable to admiralty jurisdiction too. AIR 2000 SC 2826.

Order 22 CPC and Rajasthan High Court ordinance. AIR 1973 Raj. 219.

Findings by Single Judge and Letters patent appeal. AIR 1965 Pat. 472.

Section 92 CPC and Section 55 Wakf Act 1954. AIR 1962 Ker. 343.

Special or local law silent. AIR 1954 Cal. 347; AIR 1985 Cal. 169.

Special Procedure. AIR 1963 All. 549; AIR 1962 All. 543; AIR 1981 SC1786; AIR 1933 Nag. 211; AIR 1933 All. 861; AIR 1968 Cal. 234.

5. Application of the Code to Revenue Courts: (1) Where anyRevenue Courts are governed by the provisions of this Code in those mattersof procedure upon which any special enactment applicable to them is silent,the State Government 1[xxx] may, by notification in the Official Gazette,declare that any portions of those provisions which are not expressly made

PreliminarySec. 5]

1. The words "with the previous sanction of the G.G in C", omitted by Act 38 of 1920,Section 2 and Schedule I, Pt. I.


applicable by this Code shall not apply to those Courts, or shall only applyto them with such modifications as the State Government 1[xxx] mayprescribe.

(2) Revenue Court in sub-section (1) means a Court having jurisdictionunder any local law to entertain suits or other proceedings relating to therent, revenue or profits of land used for agricultural purposes, but doesnot include a Civil Court having original jurisdiction under this Code to trysuch suits or proceedings as being suits or proceedings of a civil nature.

CASE LAW

Where Tenancy Act provides for notice to quit, notice under Section 106T.P. Act is not necessary. AIR 1979 SC 1745.

Notice to quit and Tenancy Act. AIR 1982 SC 783; AIR 1981 Del. 199;AIR 1981 Cal. 381.

U.P. Consolidation of Holdings Act Authorities under the Act Notrevenue Courts. AIR 1970 All. 241.

6. Pecuniary jurisdiction: Save in so far as is otherwise expresslyprovided, nothing herein contained shall operate to give any Court jurisdictionover suits the amount or value of the subject-matter of which exceeds thepecuniary limits (if any) of its ordinary jurisdiction.

CASE LAW

Valuation of suit Appellate forum. AIR 1989 Bom. 303.

Suit for accounts. AIR 1979 SC 989; AIR 1978 All. 21.

Pre-emption suit. AIR 1960 Punj. 434.

Proceeding under Land Acquisition Act not a suit. AIR 1970 Ker. 30.

Reference to Civil Court not a suit. AIR 1965 All. 442; AIR 1958 Pat.307.

7. Provincial Small Cause Courts: The following provisions shallnot extend to Courts constituted under the Provincial Small Cause CourtsAct, 1887 (9 of 1887) 2[or under the Berar Small Cause Courts Law, 1905],

[Sec. 7

1. The words "with the sanction aforesaid", omitted by Act 38 of 1920, Section 2 and ScheduleI, Pt. I.

2. Inserted by Act 4 of 1941, Section 2 and Schedule III.

15

or to Courts exercising the jurisdiction of a Court of Small Causes 1[underthe said Act or Law], 2[or to Courts in 3[any part of India to which thesaid Act does not extend] exercising a corresponding jurisdiction] that isto say,

(a) so much of the body of the Code as relates to

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property; and

(b) the following sections, that is to say,

Section 9,

Sections 91 and 92,

Sections 94 and 95 4[so far as they authorize or relate to,

(i) orders for the attachment of immovable property:

(ii) injunctions;

(iii) the appointment of a receiver of immovable property, or

(iv) the interlocutory orders referred to in clause (e) of Section 94],and

Sections 96 to 112 and 115.CASE LAW

Decree of Small Causes Court Execution against immovable property Transfer to ordinary side. AIR 1951 Mad. 491. See 1960 All.LJ 352; 1975Mah. LJ 97.

Attachment before Judgment. 1958 An.L.T. 557; AIR 1970 All. 544; AIR1973 All. 542.

The Provincial Small Cause Courts Act, 1887 (9 of 1887) included inAppendices.

8. Presidency Small Cause Courts: Save as provided in Sections24, 38 to 41, 75, clauses (a), (b) and (c) 76, 5[77, 157 and 158], andby the Presidency Small Cause Courts Act, 1882 (15 of 1882) the provisions

PreliminarySec. 8]

1. Subs. for "under that Act" by Act 4 of 1941, Section 2 and Schedule III.2. Inserted by Act 2 of 1951, Section 5.3. Subs. for "Part B States" by the Adaptation of Laws (No. 2) Order, 1956.4. Subs. for "so far as they relate to injunctions and interlocutory orders" by Act 1 of 1926,

Section 3.5. Subs. for "77 and 155 to 158" by Act 104 of 1976, Section 4, w.e.f. 1-2-1977.


in the body of this Code shall not extend to any suit or proceeding in anyCourt of Small Causes established in the towns of Calcutta, Madras andBombay:

1[Provided that,

(1) the High Courts of Judicature at Fort William, Madras and Bombay,as the case may be, may from time to time, by notification in the OfficialGazette, direct2 that any such provisions not inconsistent with the expressprovisions of the Presidency Small Cause Courts Act, 1882, (15 of 1882)and with such modifications and adaptations as may be specified in thenotification, shall extend to suits or proceedings or any class of suits orproceedings in such Court;

(2) all rules heretofore made by any of the said High Courts underSection 9 of the Presidency Small Cause Courts Act, 1882 (15 of 1882)shall be deemed to have been validly made.]

State Amendment: Gujarat: In its application to the city of Ahmedabad, inSection 8 in the opening para, after the words Calcutta, Madras and Bombay insertedthe words and in the City of Ahmedabad. [Vide Gujarat Acts 19 of 1961 and 32of 1961, Section 21 and the Schedule (w.e.f. 1-11-1961)].

CASE LAW

Ex parte order Setting aside thereof. AIR 1957 Mad. 353.

Section 104 and Presidency Small Cause Courts. AIR 1967 Bom. 361.

The Presidency Small Causes Courts Act, 1882 (15 of 1882) included inAppendices.

PART I

SUITS IN GENERALJurisdiction of the Courts and Res-judicata

9. Courts to try all civil suits unless barred: The Courts shall(subject to the provisions herein contained) have jurisdiction to try all suitsof a civil nature excepting suits of which their cognizance is either expresslyor impliedly barred.

3[Explanation I]: A suit in which the right to property or to anoffice is contested is a suit of a civil nature, notwithstanding that such right

[Sec. 9

1. Added by Act 1 of 1914, Section 2.2. For instance of such direction, see Calcutta Gazette, 1910, Part I, Page 814.3. Explanation renumbered as Explanation I by Act 104 of 1976, Sec. 5, w.e.f. 1.2.1977.

17

may depend entirely on the decision of questions as to religious rites orceremonies.

1[Explanation II: For the purposes of this section, it is immaterialwhether or not any fees are attached to the office referred to in ExplanationI or whether or not such office is attached to a particular place.]

State Amendment: Maharashtra: In its application to the State of Maharashtra,the new S. 9-A shall be inserted as follows:

"9-A. Where at the hearing of application relating to interim relief in a suit,objection to jurisdiction is taken, such issue to be decided by the Court as apreliminary issue: (1) Notwithstanding anything contained in this Code or any otherlaw for the time being in force, if, at the hearing of any application for granting orsetting aside an order granting any interim relief, whether by way of stay, injunction,appointment of a receiver or otherwise, made in any suit, an objection to the jurisdictionof the Court to entertain such a suit is taken by any of the parties to the suit, theCourt shall proceed to determine at the hearing of such application the issue as tothe jurisdiction as a preliminary issue before granting or setting aside the order grantingthe interim relief. Any such application shall be heard and disposed of by the Courtas expeditiously as possible and shall not in any case be adjourned to the hearingof the suit.

(2) Notwithstanding anything contained in sub-section (1), at the hearing of anysuch application, the Court may grant such interim relief as it may consider necessary,pending determination by it of the preliminary issue as to the jurisdiction." MaharashtraAct (65 of 1977) (w.e.f. 19-12-1977).

CASE LAW

The declaration by President of India, under Articles 341 and 342 of theConstitution, with respect of lists of the Scheduled Castes and Scheduled Tribesin relation to a State, that a particular caste or tribe is defined in Article 366(24)or (25) respectively is conclusive subject to an amendment by the Parliamentunder Article 341(12) and 342(2) of the Constitution. By necessary implication,the jurisdiction of the Civil Court to take cognizance stands prohibited. AIR1997 SC 1199.

When a legal right is infringed, a suit would lie unless there is a bar againstentertainment of such civil suit and the Civil Courts would take cognizance ofit. Therefore, the normal rule of law is that Civil Courts have jurisdiction totry all suits of civil nature except those of which cognizance is either expresslyor by necessary implication excluded. The Rule of construction being that everypresumption would be made in favour of the existence of a right and remedyin a democratic set up governed by rule of law and jurisdiction of the civil

Suits in GeneralSec. 9]

CPC2

1. Inserted by Act 104 of 1976, Section 5, w.e.f. 1-2-1977.

The Code of Civil Procedure, 190818 [Sec. 9

Court is assumed. The exclusion would, therefore, normally be an exception.Courts generally construe the provisions strictly when jurisdiction of civil courtsis claimed to be excluded. However, in the development of civil adjudicationof civil disputes, due to pendency of adjudications and abnormal delay athierarchical stages, statutes intervene and provide alternative made of resolutionof disputes with less expensive but expeditious disposal. It is settled legal positionthat if a Tribunal with limited jurisdiction cannot assume jurisdiction and decidefor itself the dispute conclusively, in such a situation, it is the Court that isrequired to decide whether the Tribunal with limited jurisdiction has correctlyassumed jurisdiction and decided the dispute within its limits. It is also equallysettled that when jurisdiction is conferred on a Tribunal, the Courts examinewhether the essential principles of jurisdiction have been followed and decidedby the Tribunals leaving the decision on merits to the Tribunal. It is also equallysettled legal position that where a statute gives finality to the orders of the specialTribunal, the civil courts jurisdiction must be held to be excluded, if there isadequate remedy to do what the civil Court would normally do in a suit. AIR1997 SC 3082.

The normal rule of law is that civil Courts have jurisdiction to try all suitsof civil nature except those of which cognizance is either expressly or bynecessary implication excluded. It is settled law that when jurisdiction isconferred on a Tribunal, the Courts examine whether the essential principlesof jurisdiction have been followed and decided by the Tribunals leaving thedecision on merits to the Tribunal. It is also equally settled legal position thatwhere a statute gives finality to the orders of special Tribunal, the civil courtsjurisdiction must be held to be excluded, if there is adequate remedy to dowhat the civil Court would normally do in a suit. Such a provision, however,does not exclude those cases where the provisions of the particular Act havenot been complied with or the statutory Tribunal has not acted in conformitywith the fundamental principles of judicial procedure. 1997 (6) SCC 143.

Section 9 of the Code of Civil Procedure deals with the aspect of Courtsto try all civil suits unless barred. AIR 1998 SC 1808 ; AIR 1996 SC 523;AIR 1997 SC 2364 ; AIR 1997 SC 3082 ; AIR 1987 SC 2043 ; AIR 1991SC 1546 ; AIR 1992 Bom. 283 ; AIR 1992 MP 61 ; AIR 1991 All. 239.

Under Section 9 of the Code of Civil Procedure the Court shall havejurisdiction to try all suits of civil nature excepting suits of which cognizanceis either expressly or impliedly barred. A statute, therefore, expressly or bynecessary implication, can bar the jurisdiction of civil Courts in respect of aparticular matter. The mere conferment of special jurisdiction on a tribunalin respect of the said matter does not in itself exclude the jurisdiction of CivilCourts. AIR 1963 SC 1547.

It is clear that even where the statute has given finality to the orders ofthe special tribunal the civil Courts jurisdiction can be regarded as having been

19

excluded if there is adequate remedy to do what the civil Court would normallydo in a suit. In other words, even where finality is accorded to the orderspassed by the special tribunal one will have to see whether such special tribunalhas powers to grant reliefs which Civil Court would normally grant in a suitand if the answer is in the negative it would be difficult to imply or infer exclusionof Civil Courts jurisdiction. AIR 1986 SC 794.

A party seeking to oust jurisdiction of an ordinary civil court shall establishthe right to do so. Section 93 of the Act does not impose a total bar onthe maintainability of a suit in a civil Court. It states that a suit of the naturementioned therein can be instituted only in conformity with the provisions ofthe Act ; that is to say, a suit or other legal proceeding relating to mattersmentioned therein. Now, what are those matters? They are : (1) administrationor management of religious institutions ; and (2) any other matter or disputefor determining or deciding which provision is made in the Act. The clausedetermining or deciding which a provision is made in this Act, on a reasonableconstruction, cannot be made to qualify the administration or management butmust be confined only to any other matter or dispute. Even so, the expressionadministration or management cannot be construed widely so as to take inany matter however remotely connected with the administration or management.AIR 1967 SC 781.

In the case of refund of tax illegally collected the following principles areto be considered :

(1) Where the statute gives a finality to the orders of the special tribunalsthe civil courts jurisdiction must be held to be excluded if there is adequateremedy to do what the civil courts would normally do in a suit. Such provision,however, does not exclude those cases where the provisions of the particularAct have not been complied with or the statutory tribunal has not acted inconformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, anexamination of the scheme of the particular Act to find the adequacy or thesufficiency of the remedies provided may be relevant but is not decisive tosustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies andthe scheme of the particular Act to find out the intendment becomes necessaryand the result of the inquiry may be decisive. In he latter case it is necessaryto see if the statute creates a special right or a liability and provides for thedetermination of the right or liability and further lays down that all questionsabout the said right and liability shall be determined by the tribunals so constituted,and whether remedies normally associated with actions in civil courts areprescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannotbe brought before Tribunals constituted under that Act. Even the High Court



cannot go into that question on a revision or reference from the decision ofthe Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionalityof any provision is to be challenged, a suit is open. A writ of certiorari mayinclude a direction for refund if the claim is clearly within the time prescribedby the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of taxcollected in excess of constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from itsconstitutionality are for the decision of the authorities and a civil suit does notlie if the orders of the authorities are declared to be final or there is an expressprohibition in the particular Act. In either case the scheme of the particularAct must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the civil court is not readily tobe inferred unless the conditions above set down apply. AIR 1969 SC 78.

The exclusion of the jurisdiction of the Civil Courts must either be explicitlyexpressed or clearly implied. Further even if the jurisdiction is so excludedthe Civil Courts have jurisdiction to examine into the cases where the provisionsof the Act have not been complied with or the statutory Tribunal has not actedin conformity with the fundamental principles of judicial procedure. AIR 1971SC 71.

When an inferior Court or Tribunal or body, which has to exercise thepower of deciding facts, is first established by Act of Parliament, the Legislaturehas to consider what powers it will give that tribunal or body. It may in effectsay that, if a certain state of facts exists and is shown to such tribunal orbody before it proceeds to do certain things, it shall have jurisdiction to dosuch things, but not otherwise. There it is not for them conclusively to decidewhether that state of facts exist and if they exercise the jurisdiction withoutits existence, what they do may be questioned and it will be held that theyhave acted without jurisdiction. AIR 1951 SC 115.

The term act of State has many uses and meanings. In France andsome Continental countries the acts of the State and its officers acting in theirofficial capacity are not cognizable by the ordinary law of the land. The reasonof the rule is stated to be that the State as the fount of all law cannot besubordinate to it. In our system of law which is inherited from EnglishJurisprudence this is not accepted and save some acts must be justified as havinga legal foundation. In this sense act of State means not all governmentalacts as it does in the French and Continental Systems but only some of them.The term is next used to designate immunities and prohibitions sometimes createdby statutes. The term is also extended to include certain prerogatives and specialimmunities enjoyed by the sovereign and its agents in the business of internal

[Sec. 9

21

government. The term is even used to indicate all acts into which, by reasonthat they are official in character, the Courts may not inquire, or in respectof which an official declaration, is binding on the Courts. AIR 1959 SC 1383.

When a territory is acquired by a sovereign State for the first time thatis an act of State. It matters not how the acquisition has been brought about.It may be by conquest, it may be by cession following on treaty, it may beby occupation of territory hitherto unoccupied by a recognised ruler. In allcases the result is the same. Any inhabitant of the territory can make goodin the municipal Courts established by the new sovereign only such rights asthat sovereign has, though his officers, recognised. AIR 1957 SC 286.

A Court cannot entertain a suit which is not of a civil nature. Primafacie suits raising questions of religious rites and ceremonies only are notmaintainable in a civil court, for they do not deal with legal rights of parties.But the explanation to the section accepting the said undoubted position saysthat a suit in which the right to property or to an officer is contested is asuit of civil nature notwithstanding that such right may depend entirely on thedecision of a question as to religious rites or ceremonies. AIR 1961 SC 1720.

Where the passing off action is based on tort, a suit in Munsif's Courtin maintainable. 2000 (1) Civil LJ 157 (Ker.).

A vested right in the landlord to maintain eviction suit will not be affectedby subsequent event 2001 (2) Civil LJ 41.

In the case of Promissory Note where cause of action in enturety aroseat a different place, court at another place cannot entertain the suit. AIR 2001Mad. 346.

The findings recorded in a departmental enquiry can be interfered withwhere the findings are based on no evidence or such findings are perverse.2002 (1) Civil LJ 142.

Applications under different provisions of various statutes cannot be treatedas suits or plaints. 1999 (7) SCC 39.

While deciding implied bar Court has to examine whether Act providesright and remedy and if the procedure provided therein is conclusive givingfinality, jurisdiction of Civil Court is excluded. AIR 1999 SC 3071.

Where the relief of mandatory injunction challenging the Land Acquisitionwas filed against the State it was held that such suit is not maintainable. AIR1987 SC 2076.

Where a party pleads that the Civil Court has no jurisdiction, the burdenis on such party to prove the same. AIR 1966 SC 1718.

The principles applicable to the jurisdiction of the Civil Court in relationto an industrial dispute may be stated thus :



(1) If the dispute is not an industrial dispute, nor does it relate toenforcement of any other right under the Act the remedy lies only in the civilCourt.

(2) If the dispute is an industrial dispute arising out of a right or liabilityunder the general or common law and not under the Act, the jurisdiction ofthe civil Court is alternative, leaving it to the election of the suitor concernedto choose his remedy for the relief which is competent to be granted in aparticular remedy.

(3) If the industrial dispute relates to the enforcement of a right or anobligation created under the Act, then the only remedy available to the suitoris to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created underthe Act such as Chapter V-A then the remedy for its enforcement is eitherSection 33-C or the raising of an industrial dispute, as the case may be. AIR1975 SC 2238.

The dispute of making religious disclosure in vernacular in a mosque isof civil nature. AIR 2000 Ker. 329.

A suit challenging Land Acquisition proceedings is not maintainable. 1999(1) Civil LJ 692 (Guj.).

Where there is violation of fundamental rights or enforcement of publicduties and public functionaries are involved, remedy under public law is availabledespite the fact that a suit can be filed for damages. AIR 2000 SC 988.

A suit for declaration that imposition of excise duty and penalty is illegaland for refund, can be maintained in a Civil Court. 2000 (1) Civil LJ 220(AP).

Exclusion of jurisdiction of Civil Court cannot be readily inferred. AIR2000 SC 2220.

Where civil rights are agitated by a party, Civil Courts jurisdiction is notbarred in spite of a provision in the statute expressly ousting its jurisdiction.1999 (5) ALT 225.

Jurisdiction of Civil Court regarding property of religious endowment underTamilnadu Act 22 of 1959, is ousted. AIR 2002 SC 2171.

While dealing with maintainability of civil suit and implied bar under theprovisions of Punjab Municipal Act 1911 in NDMC v. Satish Chand (deceased)by L.R. Ram Chand, 2003 (10) SCC 38 = AIR 2003 SC 3187 it was held:

It will be noticed from the provisions contained in Section 9 of the Codeof Civil Procedure that a bar to file a civil suit may be express or implied.An express bar is where a Statute itself contains a provision that the jurisdictionof a Civil Court is barred e.g., the bar contained in Section 293 of the Income-tax Act, 1961. An implied bar may raise when a Statute provide a special

[Sec. 9

23

remedy to an aggrieved party like a right of appeal as contained in the PunjabMunicipal Act which is the subject-matter of the present case. Section 86 ofthe Act restrains a party from challenging assessment and levy of tax in anymanner other than as provided under the Act. A provision like this is the impliedbar envisaged in Section 9, C.P.C. against filing a civil suit. In Raja RamKumar Bhargava (dead) by L.Rs. v. Union of India, (AIR 1988 SC 752) thisCourt observed:

Generally speaking, the broad guiding considerations are that wherevera right, not pre-existing, in common-law, is created by a statute and that statuteitself provided a machinery for the enforcement of the right, both the rightand the remedy having been created uno flatu and a finality is intended to theresult of the statutory proceedings, then even in the absence of an exclusionaryprovision the Civil Courts jurisdiction is impliedly barred. If, however, a rightpre-existing in common law is recognised by the Statute and a new statutoryremedy for its enforcement provided, without expressly excluding the CivilCourts jurisdiction, then both the common-law and the statutory remedies mightbecome concurrent remedies leaving upon an element of election to the personsof inherence. To what extent, and on what areas and under what circumstancesand conditions, the Civil Courts jurisdiction is preserved even where there isan express cause excluding their jurisdiction, are considered in Dhulabhais case(AIR 1969 SC 78).

Munshi Ram and others v. Municipal Committee, Chheharta, 1979 (3) SCR463 : AIR 1979 SC 1250: 1979 Tax LR 463, was a case under the PunjabMunicipal Act itself. The Court was considering the question of bar createdunder Sections 84 and 86 of the Act regarding hearing and determination ofobjections to levy of provisional tax under the Act. In this connection it wasobserved:

From a conjoint reading of Sections 84 and 86, it is plain that the MunicipalAct, gives a special and particular remedy for the person aggrieved by anassessment of tax under the Act, irrespective of whether the grievance relatesto the rate or quantum of tax or the principles of assessment. The Act furtherprovides a particular forum and a specific mode of having this remedy whichanalogous to that provided in Section 66(2) of the Indian Income-tax Act, 1922.Section 86 forbids in clear terms the person aggrieved by an assessment fromseeking his remedy in any other forum or in any other manner than that providedin the Municipal Act.

It is well recognised that where a Revenue Statute provides for a personaggrieved by an assessment thereunder, a particular remedy to be sought ina particular forum in a particular way, it must be sought in that forum andin that manner, and all other forum and modes of seeking it are excluded.Construed in the light of this principles, it is clear that Sections 84 and 86of the Municipal Act bar, by inevitable implication, the jurisdiction of the Civil

Sec. 9] Suits in General


Court where the grievance of the party relates to an assessment or the principleof assessment under this Act.

The Court upheld the objection regarding maintainability of the civil suit.

A Division Bench of the Delhi High Court in Sobha Singh and Sons (P)Ltd. v. New Delhi Municipal Committee, (34 (1988) Delhi Law Times 91) hadan occasion to consider the question of maintainability of a civil suit challengingthe assessment and levy of property tax by the NDMC, Sections 84 and 86of the Act came in for consideration. It was held that the provision of appealcontained in Section 84(1) of the Act provided a complete remedy to a partyaggrieved against the assessment and levy of tax. Section 86 provides thatthe remedy of appeal is the only remedy to a party to challenge assessmentfor purposes of property tax. No other remedy was available to a party insuch circumstances. It follows that the remedy of civil suit is barred.

In view of the aforesaid position in law, we are of the considered viewthat the civil suit filed by respondent challenging the assessment and demandof property tax by the appellant was clearly barred. The judgments of thelower appellate Court and the High Court are, therefore, set aside and the judgmentof the trial Court is hereby restored. The civil suit filed by respondent is dismissedas not maintainable. The appeal is allowed. There will be no order as tocosts.

In Dhruv Green Field Ltd. v. Hukum Singh, 2002 (6) SCC 416 = AIR2002 SC 2841 it was held:

The jurisdiction of the Courts to try all suits of civil nature is veryexpansive as is evident from the plain language of Section 9 of the Code ofCivil Procedure. (9. Courts to try all civil suits unless barred: The Courtsshall (subject to the provisions herein contained) have jurisdiction to try all suitsof civil nature excepting suits of which their cognizance is either expressly orimpliedly barred. Explanation: I. A suit in which the right to property orto an office is contested is a suit of a civil nature, notwithstanding that suchright may depend entirely on the decision of questions as to religious rites orceremonies. Explanation: II. For the purposes of this section, it is immaterialwhether or not any fees are attached to the office referred to in ExplanationI or whether or not such office is attached to a particular place.) This isbecause of the principle ubi jus ibi remedium. (Where there is a right thereis a remedy.) It is only where cognizance of a specified type of suit is barredby a statute either expressly or impliedly that the jurisdiction of the civil Courtwould be ousted to entertain such a suit. The general principle is that a statuteexcluding the jurisdiction of civil Courts should be construed strictly.

Jurisdiction of civil courts: 2003 (1) CCC 472; 2003 (3) ALT 114; 2003(3) Supreme 13; 2003 (3) ALT 210; 2003 (6) SCC 151; 2003 (7) SCC 350;2003 (10) SCC 38; 2003 (7) SCC 546; 2003 (6) SCC 220; 2003 (6) SCC659; AIR 2004 A P 66; AIR 2004 P & H 53; AIR 2004 SC 1373.

[Sec. 9

25Suits in General

Section 9 CPC and Section 7(5) of the Wakf Act, 1995 AIR 2007 SC1447.

In Sudhir G. Angur v. M. Sanjeev, 2006 (1) SCC 141, it was observedthat it is the law on the date of trial of the suit which is to be applied.

Suit for damages relating to accident on railway platform, not barred. AIR2006 Pat. 117. Rights and obligations by I.D. Act Decree of Civil Court anullity. AIR 2006 SC 2473. Notification for acquisition of land under BDA Act1976 Civil Court has no jurisdiction. AIR 2006 SC 3379. Recovery of DowryArticles by Muslim Woman Civil Courts jurisdiction not ousted by theprovisions of Section 3 of Muslim Women (Protection of Rights on Divorce)Act, 1986. AIR 2006 Bom. 302. Serious allegations of fraud and forgery Mismanagement of trust property Bar of jurisdiction of civil court not applicable.AIR 2006 SC 351. Mere sale of goods Would not attract carry on business.AIR 2006 SC 730.

Jurisdiction of Civil Court Equity jurisdiction. AIR 2008 SC 171.

Employee on work charged basis Termination of Services Jurisdictionof Civil Court barred. AIR 2008 SC 1315.

Service Matters Exclusion of jurisdiction not total. AIR 2008 SC 2553.

Distinction between jurisdictional fact and adjudicatory fact. AIR 2008 SC 187.

Section 9A as introduced in State of Maharashtra Preliminary issue. AIR2006 SC 1556.

10. Stay of suit: No Court shall proceed with the trial of any suitin which the matter in issue is also directly and substantially in issue in apreviously instituted suit between the same parties, or between parties underwhom they or any of them claim litigating under the same title where suchsuit is pending in the same or any other Court in 1[India] having jurisdictionto grant the relief claimed, or in any Court beyond the limits of 1[India]established or continued by 2[the Central Government] 3[x x x] and havinglike jurisdiction, or before 4[the Supreme Court].

Explanation: The pendency of a suit in a foreign Court does notpreclude the Courts in 1[India] from trying a suit founded on the same causeof action.

Sec. 10]

1. Subs. for "the States" by Act 2 of 1951, Section 3.2. Subs. for "the G.G. in C" by the A.O. 1937.3. The words "or the Crown Representative" omitted by the A.O. 1948.4. Subs. for "His Majesty in Council" by the A.O. 1950.


CASE LAW

Where Section 10 of C.P.C. is not applicable Section 151 of C.P.C. cannotbe invoked. 1996(1) ALT 177.

Section 10 of C.P.C. is referable only to a suit in a Civil Court and isnot applicable to any other proceedings under statute. AIR 1995 Guj. 220.

As a general principle it cannot be stated that wherever there is a criminalproceeding, the civil proceeding has to be stayed. AIR 1998 MP 191.

Section 10 is not applicable to summary suits. AIR 1998 SC 1952.

Provisions of Section 10 CPC are mandatory. AIR 1932 Cal. 751.

Object of Section 10 CPC is to prevent Courts of concurrent jurisdictionfrom simultaneously entertaining and adjudicating upon parallel litigation. AIR1981 Del. 332.

Though requirements of Section 10 CPC are not satisfied, to prevent abuseof process of the Court, recourse to Section 151 CPC can be sought. AIR1987, Gau.73.

For scope and ambit of Section 10, see : AIR 1987 All. 335 ; AIR 1994All. 81 ; AIR 1984 Pat. 248 ; AIR 1992 P & H 217 ; AIR 1985 SC 111; AIR 1991 All. 216 ; AIR 1992 Del. 87 ; AIR 1990 Del. 139 ; AIR 1984Pat. 7 ; AIR 1978 Del. 221 ; AIR 1990 Ori. 127 ; AIR 1992 Bom. 286.

Sections 10 and 25 CPC :

Stay rejected under Sec 10 CPC. Even then Supreme Court can exercisepower of Transfer AIR 2004 SC 1687.

Validity of agreement common question in both suits. AIR 2006 Cal. 206.

11. Res judicata: No Court shall try any suit or issue in which thematter directly and substantially in issue has been directly and substantiallyin issue in a former suit between the same parties, or between parties underwhom they or any of them claim, litigating under the same title, in a Courtcompetent to try such subsequent suit or the suit in which such issue hasbeen subsequently raised, and has been heard and finally decided by suchCourt.

Explanation I: The expression "former suit" shall denote a suit whichhas been decided prior to the suit in question whether or not it was institutedprior thereto.

Explanation II: For the purposes of this section, the competenceof a Court shall be determined irrespective of any provisions as to a rightof appeal from the decision of such Court.

[Sec. 11

27

Explanation III: The matter above referred to must in the formersuit have been alleged by one party and either denied or admitted, expresslyor impliedly, by the other.

Explanation IV: Any matter which might and ought to have beenmade ground of defence or attack in such former suit shall be deemed tohave been a matter directly and substantially in issue in such suit.

Explanation V: Any relief claimed in the plaint, which is not expresslygranted by the decree, shall, for the purposes of this section, be deemedto have been refused.

Explanation VI: Where persons litigate bona fide in respect of apublic right or of a private right claimed in common for themselves andothers, all persons interested in such right shall, for the purposes of thissection, be deemed to claim under the persons so litigating.

1[Explanation VII]: The provisions of this section shall apply to aproceeding for the execution of a decree and references in this section toany suit, issue or former suit shall be construed as references, respectively,to a proceeding for the execution of the decree, question arising in suchproceeding and a former proceeding for the execution of that decree.

Explanation VIII: An issue heard and finally decided by a Courtof limited jurisdiction, competent to decide such issue, shall operate as resjudicata in a subsequent suit, notwithstanding that such Court of limitedjurisdiction was not competent to try such subsequent suit or the suit inwhich such issue has been subsequently raised].

CASE LAW

On general considerations of public policy there seems to be no reasonwhy the rule of res judicata should be treated as inadmissible or irrelevant indealing with petitions filed under Art. 32 of the Constitution. It is true thatthe general rule can be invoked only in cases where a dispute between theparties has been referred to a court of competent jurisdiction, there has beena contest between the parties before the court, a fair opportunity has been givento both of them to prove their case, and at the end of court has pronouncedits judgment or decision. Such a decision pronounced by a court of competentjurisdiction in binding between the parties unless it is modified or reversed byadopting a procedure prescribed by the Constitution. AIR 1961 SC 1457.

If the Civil Court which rendered the first decision was competent toentertain the suit or other proceeding, and had therefore competency to decide


1. Inserted by Act 104 of 1976, Section 6, w.e.f. 1-2-1977.


the issues or matter, the circumstance that it is a tribunal of exclusive jurisdictionor one from whose decision no appeal lay would not by themselves negativethe finding on the issue by it being res judicata in later proceedings. Similarly,as stated already, though Section 11 of the Civil Procedure Code clearlycontemplates the existence of two suits and the findings in the first being resjudicata in the later suit, it is well established that the principle underlying itis equally applicable to the case of decisions rendered of successive stages ofthe same suit or proceeding. AIR 1964 SC 993.

A finding on the relationship of landlord and tenant by a Rent ControlAuthority operates as res-judicata in a civil suit for recovery of possession. 1998(6) SCC 207.

A finding as to title to immovable property rendered by a court of smallcauses cannot be pleaded as a bar in a subsequent regular civil suit since it wasonly collaterally or incidentally in issue and not one which is directly andsubstantialy in issue. AIR 1982 SC 20 at 23.

For applying doctrine of res judicata, existence of decision finally decidinga right or claim between the parties is necessary. AIR 2001 SC 2134.

Where question of title was not gone into in a prior suit for injunction,the earlier decision cannot be said to be binding on question of title. 2000(7)SCC 543.

A mere finding on any incidental question to reach the decision on issuemay not operate as resjudicate. 1999 (4) SCC 243.

Where party acquired right drawng pendency of perious suit, suit by himon the strength of such right acquired in miantainable. AIR 1998 Cal. 333.

Principles of res judicata are applicable to execution proceedings. AIR 1970SC 1525.

Expression might and ought explained. 2002 (3) SCC 258.

Scope of res judicata as enshrined in Section 11 C.P.C. is not exhaustive.AIR 2000 SC 2301.

Where protection of Rent Act was refused in a suit for declaration oftitle and possession and the said finding became final, such objection cannotbe raised in execution. AIR 2000 SC 2688.

A finding in a remand order is not binding on a higher court. AIR 2000SC 2907.

Constructive res judicata Seniority list plea of carry forward of vacanciesnot an issue before tribunal. Raising such plea in Supreme Court barred byconstructive res judicata. AIR 2000 SC 622.

[Sec. 11

29

Test to determine whether an issue is directly and substantially in issueor collaterally or incidentally in issue. AIR 2000 SC 1238.

Finding on question directly and substantially in issue in prior suit, operatesas res judicata in subsequent suit. AIR 2000 Raj. 228.

Where the claims are contrary to findings in a previous suit, they are barredby res judicata. 1999 (3) SCC 91.

Matters directing and substantially in issue and matters collaterally andincidentally in issue Explained. 2000 (3) SCC 350.

Where an earlier eviction proceeding was based on lease and the decreefor eviction was not executed in time, a subsequent suit for recovery of possessionon the strength of title is not barried either by Section 11 or by Section 47CPC. AIR 2000 SC 212.

The principle of res judicata is not applicable where the decision is onpure question of law. 2002 (1) Civil LJ 54.

Findings recorded in proceedings for grant of succession certificate regardingWill, cannot operate as res judicata in a subsequent suit for mandatory injunctionfor supply of locker number. AIR 2002 P&H 5.

Plea of res judicata is a mixed question of fact and law. 2002 AIR SCW242.

In C.V. Rajendran and another v. N.M. Muhammed Kunhi, 2002 (7) SCC447, it was held:

We may add that Section 105 of the Code of Civil Procedure, 1908specifically provides that any error, defect or irregularity in any order affectingthe decision of the case may be set forth as a ground of objection in thememorandum of appeal which may be preferred against the original decree; ordersin the nature of amendment of pleadings; late admission of documents at a laterstage; admission of additional evidence and the like are orders interlocutory innature which can be challenged by raising a ground of objection in the memorandumof appeal which may be preferred against the original decree. Sub-section (2)of Section 105 CPC deals with an order of remand and provides that notwithstandingthe provisions of sub-section (1), where any party aggrieved by an order of remandfrom which an appeal lies does not appeal therefrom, he shall thereafter beprecluded from disputing its correctness. Here what is sought to be reagitatedis not really the order of remand but the order deciding a germane issue whichwas allowed to become final at an earlier stage of the same suit. The principleof res judicata applies as between two stages in the same litigation so that ifan issue has been decided at an earlier stage against a party, it cannot be allowedto be reagitated by him at a subsequent stage in the same suit or proceedings.This position is laid down in Hope Plantations Ltd. v. Taluk Land Board, (1999)5 SCC 590 to which one of us (Syed Shah Mohammed Quadri, J.) was aparty.



In the light of the above discussion we hold that as the question whetherSection 15 of the Act bars the present eviction petition, was decided againstthe appellants by the Appellate Authority at the earlier stage of the suit and itwas allowed to become final, it is not open to the appellants to reagitate thesame at the subsequent stage of the suit. In this view of the matter, we donot find any illegality in the order under appeal to warrant any interference.

Resjudicata : 2003 (1) An.W. R 669; 2002 (1) Supreme 368; 2003 (1)ALT 83; 2003 (2) An.W. R 14; 2003 (3) ALT 716; 2003 (5) ALT 298; 2003(6) ALT 792; AIR 2003 SC 3349; 2003 (4) SCC 166; AIR 2003 S C 4701;2002 (10) SCC 207; 2003 (6) SCC 423; 2003 (11) SCC 614; 2003 (8) SCC319; 2003 (8) SCC 263; 2003 (2) SCC 464; 2003 (10) SCC 578; AIR 2004A P 66; AIR 2004 P & H 93; AIR 2004 MP 51; AIR 2004 Gau. 83; AIR2004 Bom 108; AIR 2004 Raj 67; AIR 2004 Raj 107; AIR 2004 Gau. 66; AIR2004 SC 1738.

In Ramadhar Shrivas v. Bhagwan Das, 2005 (13) SCC 1, it was held:

The principle underlying Explanation IV is that where the parties have hadan opportunity of controverting a matter, that should be taken to be the samething as if the matter had been actually controverted and decided. The objectof Explanation IV is to compel the plaintiff or the defendant to take all thegrounds of attack or defence in one and the same suit. (Vide Nirmal EnemHoro v. Jahan Ara Jaipal Singh, (1973) 2 SCC 189 : AIR 1973 SC 1406,SCC at p. 192 : AIR at p. 1409; Jaswant Singh v. Custodian of Evacuee Property,(1985) 3 SCC 648 : AIR 1985 SC 1096 : 1985 Supp. (1) SCR 331; ForwardConstruction Co. v. Prabhat Mandal (Regd.), (1986) 1 SCC 100 : AIR 1986SC 391 : 1985 Supp. (3) SCR 766; Direct Recruit Class II Engg. OfficersAssn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339: (1990) 13 ATC 348 : AIR 1990 SC 1607 and Vijayan v. Kamalakshi, (1994)4 SCC 53).

PIL and Resjudicata. AIR 2006 SC 1846. Order not on merits No resjudicata. AIR 2006 All. 238. Application to send document to expert dismissed Another application to send it to security press to obtain opinion, barred byres judicata. AIR 2006 AP 315. Application of mortgagor to deposit amountunder Section 83 T.P. Act Entertaining Court Not court of limited jurisdiction.AIR 2006 SC 2965.

Question Hindu Temple or Jain Temple Prior decision of Supreme Court Res judicata. AIR 2007 SC 767.

Purchaser though not party in former suit, ex parte decree would operateas res judicata in subsequent suit. AIR 2007 SC 3067.

Observations of Supreme Court AIR 2008 SC 2187.

Principles analogous to res judicata Criminal matters. AIR 2008 SC 2392.

[Sec. 11

31Suits in General

Execution Objection at a subsequent stage Res judicata. AIR 2008SC 1272.

Principles Scope and ambit. See: AIR 2008 SC 1139; AIR 2008 SC1553.

Promissory estoppel negatived in writ petitions SLPs dismissed with libertyto approach Civil Court Plaintiffs again cannot rely on promissory estoppel.AIR 2007 SC 2917.

Plea by FCI as to escalation clause in contract rejected Such plea notto be permitted again. AIR 2007 SC 829.

12. Bar to further suit: Where a plaintiff is precluded by rules frominstituting a further suit in respect of any particular cause of action, he shallnot be entitled to institute a suit in respect of such cause of action in anyCourt to which this Code applies.

CASE LAW

Rules Meaning. AIR 1978 All. 312. Fresh suit on same cause of actionagainst LRs barred. AIR 1928 Pat. 362.

13. When foreign judgment not conclusive: A foreign judgmentshall be conclusive as to any matter thereby directly adjudicated uponbetween the same parties or between parties under whom they or any ofthem claim litigating under the same title except:

(a) where it has not been pronounced by a Court of competentjurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be foundedon an incorrect view of international law or a refusal torecognise the law of 1[India] in cases in which such law isapplicable;

(d) where the proceedings in which the judgment was obtained areopposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in forcein 1[India].

Sec. 13]

1. Subs. for "the States" by Act 2 of 1951, Section 3.


CASE LAW

Section 13(a) of the Code of Civil Procedure, 1908 makes a foreignjudgment conclusive as to any matter thereby directly adjudicated upon exceptwhere it has not been pronounced by a court of competent jurisdiction. Learnedcounsel for the respondent urged that this provision occurring in the CivilProcedure Code cannot govern criminal proceedings and therefore the want ofjurisdiction in the Nevada Court to pass the decree of divorce can be no answerto an application for maintenance under Section 488, Criminal Procedure Code.This argument is misconceived. The judgment of the Nevada Court was renderedin a civil proceeding and therefore its validity in India must be determined onthe terms of Section 13. It is beside the point that the validity of that judgmentis questioned in a criminal court and not in a civil court. If the judgment fallsunder any of the clauses (a) to (e) of Section 13, it will cease to be conclusiveas to any matter thereby adjudicated upon. The judgment will then be opento a collateral attack on the grounds mentioned in the five clauses of Section13.

Under Section 13(e), Civil Procedure Code, the foreign judgment is opento challenge where it has been obtained by fraud. Fraud as to the merits ofthe respondents case may be ignored and his allegation that he and his wifehave lived separate and apart for more than three (3) consecutive years withoutcohabitation and that there is no possibility of a reconciliation may be assumedto be true. But fraud as to the jurisdiction of the Nevada Court is a vitalconsideration in the recognition of the decree passed by that court. It is therefore,relevant that the respondent successfully invoked the jurisdiction of the NevadaCourt by lying to it on jurisdictional of facts. AIR 1975 SC 105.

There is no scope for the application of the rule of private internationallaw to a case where the suit as initially filed was competent and the Court beforewhich it was filed had jurisdiction to try it. In such a case if one of the defendantsdies and his legal representative happen to be non-resident foreigners the proceduralstep taken to bring them on the record is intended to enable them to defendthe suit in their character as legal representatives and on behalf of the deceaseddefendant and so the jurisdiction of the Court continues unaffected and thecompetence of the suit as originally filed remains unimpaired. In form it is apersonal action against the legal representatives but in substance it is an actioncontinued against them as legal representatives in which the extent of their liabilityis ultimately decided by the extent of the assets of the deceased as held by them.AIR 1962 SC 232.

The language of Section 13 of the Code of Civil Procedure, 1908, is explicit:a foreign judgment is made thereby conclusive between the parties as to anymatter directly adjudicated and it is not predicated of the judgment that it mustbe delivered before the suit in which it is set up was instituted. Section 13

[Sec. 13

33

incorporates a branch of the principle of res judicata, and extends it withincertain limits to judgments of foreign Courts if competent in an internationalsense to decide the dispute between the parties. The rule of res judicata appliesto all adjudications in a former suit, which expression by the Explanation1 to Section 11 of the Code of Civil Procedure denotes a suit which has beendecided prior to the suit in question whether or not it was instituted prior thereto.AIR 1963 SC 1.

It is a well established principle of private international law that if a foreignjudgment was obtained by fraud, or if the proceedings in which it was obtainedwere opposed to natural justice, it will not operate as res judicata.

Though a judgment would be res judicata and not impeachable from within,it might be impeachable from without. In other words, though it is not permissibleto show that the Court was mistaken, it might be shown that it was misled. Thereis an essential distinction between mistakes and trickery. The clear implicationof the distinction is that an action to set aside a judgment cannot be broughton the ground that it has been decided wrongly, namely that on the merits thedecision was one which should not have been rendered, but that it can be setaside if the Court was imposed upon or tricked into giving the judgment. AIR1974 SC 1764. The recognition of decree of divorce granted by U.S. Court isgoverned by private International law. AIR 1975 SC 105.

For jurisdiction for foreign courts, see : AIR 1969 Guj. 23 ; AIR 1975SC 105 ; AIR 1984 SC 1224 ; AIR 1962 SC 1737; AIR 1967 SC 739.

For foreign judgment and res judicata, see : AIR 1928 Mad. 327 ; AIR1964 SC 538 ; AIR 1958 Ker. 100 ; 1958 (1) MLJ 194; AIR 1962 Raj. 231.Probate by a Foreign Court. AIR 1992 Mad. 136.

Decree by a Court of Jammu & Kashmir in 1948 not a decree of ForeignCourt. AIR 1981 Del. 121. Foreign Judgment in divorce proceeding. AIR 1975SC 105 ; AIR 1985 Guj. 187.

Money decree of Pakistan Court. AIR 1975 SC 824. Decree by SingaporeHigh Court. AIR 1981 Mad. 118.

Documents and evidence of plaintiff not considered in a foreign judgment,it is not on merits. AIR 2000 P&H 182.

In International Woollen Mills v. Standard Wool (U.K.) Ltd., 2001 (5) SCC265, it was held:

In support of the contention that the abovementioned decree is on meritsreliance has been placed upon the case of Sk. Abdul Rahim v. Mohd. Din,AIR 1943 Cal. 42: 75 CLJ 271. In this case it has been held by the CalcuttaHigh Court that a person asserting that the judgment was not on merits becauseno evidence was given must prove the same as there is a presumption in Section


CPC3


114 of the Evidence Act that judicial acts have been regularly performed. Onthis principle the Calcutta High Court has held that even though a decree wasgiven ex parte the same must be presumed to be on merits. In our view thelaw laid down in this case cannot be said to be the correct law. Section 114merely raises the presumption, under Illustration (e) thereof, that judicial actshave been regularly performed. To say that a decree has been passed regularlyis completely different from saying that the decree has been passed on merits.An ex parte decree passed without consideration of merits may be a decree passedregular if permitted by the rules of that court. Such a decree would be validin that country in which it is passed unless set aside by a court of appeal.However, even though it may be a valid and enforceable decree in that country,it would not be enforceable in India if it has not been passed on merits. Thereforefor a decision on the question whether a decree has been passed on merits ornot, the presumption under Section 114 would be of no help at all. It mustbe mentioned that in support of the submission that it must be presumed thatall formalities were complied with and the decree passed regularly reliance wasalso placed on cases of Krishna Kumari v. State of Haryana, (1999) 1 SCC338: AIR 1999 SC 854 and CIT v. M. Chandra Sekhar, (1985) 1 SCC 283:1985 SCC (Tax.) 85: AIR 1985 SC 114. In our view these authorities are ofno help in deciding the question under consideration. Even if we presume thatall formalities were complied with and the decree was passed regularly it stillwould not lead to the conclusion that it was passed on merits.

14. Presumption as to foreign Judgments: The Court shallpresume, upon the production of any document purporting to be acertified copy of a foreign judgment, that such judgment was pronouncedby a Court of competent jurisdiction, unless the contrary appears onthe record; but such presumption may be displaced by proving wantof jurisdiction.

CASE LAW

Foreign judgment onus. AIR 1942 Bom. 199; AIR 1928 Pat. 375; AIR1927 All. 510. Decree of foreign Court Reciprocating territory. AIR 1977Mad. 199. Foreign Judgment Effect thereof. AIR 1976 Del. 115; AIR 1952Cal. 116; AIR 1966 Goa 38; AIR 1958 Raj. 189.

Fraud AIR 1985 Guj. 187; AIR 1975 SC 105; AIR 1970 Mad. 510; AIR1964 Ker. 244; AIR 1947 PC 192; AIR 1974 SC 1764; AIR 1985 Mad. 379.

Place of suing

15. Courts in which Suits to be instituted: Every suit shall beinstituted in the Court of the lowest grade competent to try it.

[Sec. 15

35

CASE LAW

Where the valuation is not fanciful return of plaint is not justified. AIR1987 SC 1947.

Institution of suit in a Court of higher grade is only an irregularity. 1989(2)CCC 689.

For place of suing see: AIR 1992 Mad. 282 ; AIR 1990 Guj. 142 ; AIR1992 Del. 153 ; AIR 1991 Gau. 96 ; AIR 1990 AP 97 ; AIR 1992 Mad. 332; AIR 1991 Del. 285 ; AIR 1991 Mad. 277 ; AIR 1991 Ker. 41 ; AIR 1991AP 53 ; AIR 1992 HP 17 ; AIR 1990 Ker. 86 ; AIR 1989 AP 206 ; AIR1971 Goa 34 ; AIR 1965 Mys. 248 ; AIR 1977 HP 90 ; AIR 1958 Cal. 700; AIR 1952 Bom. 365.

Where part of cause of action arose within the limits of a court suchcourt has Junsdiction to recover balance of amount on contract. AIR 1998 Del.404; See AIR 1998 AP 381.

Objection to the place of suing can be entertained by appellate or revisionalCourt. AIR 1986 Cal. 330. Section 15 prescribes rule of procedure but doesnot deprive Court of higher grade to entertain the suit. AIR 1977 HP 90.

For Court of lowest grade. See : AIR 1967 Mad. 91; AIR 1970 AP 124;AIR 1980 All. 117. This provision lays down rule of procedure. AIR 1944 All.1, AIR 1962 Mad. 450. Court of higher grade exercising Jurisdiction a mereirregularity. ILR 13 Mad. 145.

16. Suits to be instituted where subject-matter situate: Subjectto the pecuniary or other limitations prescribed by any law, suits,

(a) for the recovery of immovable property with or without rentor profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgageof or charge upon immovable property,

(d) for the determination of any other right to or interest in immovableproperty,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint orattachment,

shall be instituted in the Court within the local limits of whose jurisdictionthe property is situate :



Provided that a suit to obtain relief respecting, or compensation forwrong to, immovable property held by or on behalf of the defendant may,where the relief sought can be entirely obtained through his personal obediencebe instituted either in the Court within the local limits of whose jurisdictionthe property is situate, or in the Court within the local limits of whosejurisdiction the defendant actually and voluntarily resides, or carries onbusiness, or personally works for gain.

Explanation: In this section "property" means property situate in1[India].

CASE LAW

A suit for recovery by way of sale of mortgaged property, has to beinstituted only at the place where immovable property is situate. AIR 2001 Del.139.

Suit for maintenance. AIR 1970 All. 185.

Immovable property. AIR 1958 SC 532; AIR 1992 Kar. 163; AIR 1978Cal. 133; AIR 1992 Del. 153. Territorial jurisdiction. AIR 1983 Pat. 274; AIR1955 Bom. 55; AIR 1969 Guj. 308; AIR 1984 Cal. 412; AIR 1986 Del. 305;AIR 1980 Del. 103.

17. Suits for immovable property situate within jurisdiction ofdifferent Courts: Where a suit is to obtain relief respecting, orcompensation for wrong to, immovable property situate within thejurisdiction of different Courts, the suit may be instituted in any Courtwithin the local limits of whose jurisdiction any portion of the propertyis situate:

Provided that, in respect of the value of the subject-matter of thesuit, the entire claim is cognizable by such Court.

CASE LAW

Causes of action. AIR 1932 PC 172; AIR 1972 Del. 90; AIR 1985 SC1289; AIR 1933 Mad. 622.

Meaning of Courts. AIR 1936 PC 189; AIR 1981 Del. 262; AIR 1938Bom. 121; AIR 1955 Cal. 159.

18. Place of institution of suit where local limits of Jurisdictionof Courts are uncertain: (1) Where it is alleged to be uncertain withinthe local limits of the jurisdiction of which of two or more Courts any

[Sec. 18

1. Subs. for "the States" by Act 2 of 1951, Section 3.

37

immovable property is situate, any one of those Courts may, if satisfied thatthere is ground for the alleged uncertainty, record a statement to that effectand thereupon proceed to entertain and dispose of any suit relating to thatproperty, and its decree in the suit shall have the same effect as if the propertywere situate within the local limits of its jurisdiction:

Provided that the suit is one with respect to which the Court iscompetent as regards the nature and value of the suit to exercisejurisdiction.

(2) Where a statement has not been recorded under sub-section (1),and an objection is taken before an Appellate or Revisional Court that adecree or order in a suit relating to such property was made by a Courtnot having jurisdiction where the property is situate, the Appellate orRevisional Court shall not allow the objection unless in its opinion there was,at the time of the institution of the suit, no reasonable ground for uncertaintyas to the Court having jurisdiction with respect thereto and there has beena consequent failure of justice.

CASE LAW

Wrong done AIR 1975 Bom. 197. Suits for recovery of compensationfor wrongs to persons or movables. AIR 1977 Mad. 258.

19. Suits for compensation for wrongs to person or movables:Where a suit is for compensation for wrong done to the person or tomovable property, if the wrong was done within the local limits of thejurisdiction of one Court and the defendant resides or carries on business,or personally works for gain, within the local limits of the jurisdictionof another Court, the suit may be instituted at the option of the plaintiffin either of the said Courts.

Illustrations

(a) A, residing in Delhi, beats B in Calcutta, B may sue A either in Calcuttaor in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. Bmay sue A either in Calcutta or in Delhi.

CASE LAW

Claim of damages for malicious prosecution. AIR 1965 Bom. 109. Wrongfuldetention of immovable property Section 19 not applicable. AIR 1978 All.234. Cause of action. AIR 1925 PC 88.



20. Other suits to be instituted where defendants reside or causeof action arises: Subject to the limitations aforesaid, every suit shall beinstituted in a Court within the local limits of whose jurisdiction,

(a) the defendant, or each of the defendants where there are morethan one, at the time of the commencement of the suit, actuallyand voluntarily resides, or carries on business, or personally worksfor gain; or

(b) any of the defendants, where ther

code of civil procedure, 1908

Documents

civil courts

civil right

civil nature

courts of civil judicature

high court of

revenue court

state of nagaland

state of jammu