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Topic Keywords Order Brief
Parties to suit
Joinder Order 1, Rules 1, 2 and 3 Court may order separate trials or may join together P/D. This is to be read with Section 11. Order 1, Rule 4 Res Judicata may apply against plaintiff or defendants. P filing application Order 1, Rule 7 If in doubt, implead. Proper and necessary party Order 1, Rule 9 This states the consequence of not adding a necessary or proper party Misjoinder and non-joinder of suit Order 1, Rule 10 Basically states that a court may order substitution or adding of plaintiff in case of bonafide mistake. Thus either striking out or adding parties at any stage of the proceedings. However, when defendant added, plaint to be amended Representative suits Order 1, Rule 8 Numerous persons having same interest in one suit - then one or more parties may sue or be sued on behalf of, or for benefit of all persons — with prior permission from court. Must give notice to all persons Any person on whose behalf such a suit if filed can apply to be a party — interveners interested in substantial Q of law. No agreement, compromise, withdrawal or abandonment of suit can be reached without notice to all interested persons Decree passed will be binding on all persons John Doe orders and Super injunctions
Plaint
Particulars Order 7, Rule 1 Speaks of the information the plaint is supposed to contain — Name of the Court; Name, Description and Residence of P; Name, Description and Residence of D; facts concerning the cause of action; jurisdiction; relief; valuation of court fees Money suit Order 7, Rule 2 Money suit will set out precise amount claimed. If mesne profits, unsettled accounts, movables or debts of whose value he can't ascertain even after 'reasonable diligence’ -- then approx Immovablele property Order 7, Rule 3 For immovable property, the plaint will contain a description of property sufficient to identify it. D’s interest Order 7, Rule 5 Plaint must show that D is interested or claims interest in the subject matter, and liable to be called. Reliefs Relief claimed may be — monetary; specific performance or permanent injunction; declaratory reliefs; misc (appointment of receiver) Order 7, Rule 7 This relief to be specifically stated Suit to include whole claim Order 2, Rule 2 P who omits, except with leave of the Court, to sue for any relief which he may be entitled to sue for with regard to the same cause of action, will not be allowed to sue for any such committed relief. Several/Alternative grounds Order 7, Rule 8 Relief can be claimed on several different and distinct claims or causes of action. To be stated separately and distinctly. Ajay Goyal v. Bhadari Order 7, Rule 9 After examining reliefs claimed and cause of action — Court may return or reject the plaint. Or after such exam, under O.7R.9, may admit the plaint and issue summons Return of plaint Order 7, Rule 10 Rule 10A lays down procedure for return of the plaint; but Rule 10 essentially just states that at any point of the trial, upon giving notice to the P, the court may return the plaint. This is even after stage of appeals/revision. This is to be returned and presented to Court where suit should have been instituted. Rejection of plaint Order 7, Rule 11
- Must take into account only the facts pleaded in the plaint
- Cannot go into veracity of facts, as this is to be proved by evidence.
- Written statement of D not to be considered
- May be rejected at any stage, even before admitting it.
- Circumstances for rejection set out in O. 7, R. 11.
- O. 6 R. 16 — striking out pleadings relates to specific matter in pleading, not rejection. Order 7, Rule 13 Rejection of plaint doesn’t preclude filing of fresh plaint.
Summons
Summons Order 5, Rule 1 Suit been duly instituted — summons may be issued to D to appear and answer claim — and to file written statement within 30 days of service of summons. Won’t be issued when a D has appeared at presentation of plaint and admitted P’s claim. Where D doesn’t’ file written statement within 30 days — may be allowed to file later — reasons in writing — no longer than 90 d. Court to order personal appearance Order 5, Rule 3 Personal appearance of P/D specified in summons Make personal appearance if resident in local limits Order 5, Rule 4
- within local limits of courts ordinary jurisdiction
- without such limits but at — based on certain transport considerations re. distance from court house Summons — settle issues or final disposal Order 5, Rule 5 While issuing summons, Court to determine if it’s for settling issues, or for final disposal of the suit. Rest marked in bare-act.
Written
Written statement Order 8, Rule 1 D shall, within 30 days from service of summons, file a written statement of defence. [With reasons recorded — no later than 90 days] Produce documents Order 8, Rule 1A D bases his defence on document; or relies on doc in his possession; he shall enter such document in list and shall produce it. Shall enter such document and produce it in Court when written statement is presented Specifically plead new facts // lay cards on table. Order 8, Rule 2
- D must raise all objections as to the jurisdiction and merits in the pleading so not not take the other party by surprise.
- New facts from defense, specifically pleaded.
- Preliminary objections -- res judicata, res subjudice, limitation, special law bars the suit -- objections related to maintainability or jurisdiction.
- Preliminary submissions -- your side of the facts // how one sees the fact. Dif. Narrative. [Objective to pur facts straight] If this prelim. Submission is not given, the factual matter you depend upon may be barred from being raised, as it would defraud the other side. Topic
Written
statement
[Conform to O. 6 and O.8]
Deny specifically points of substance Order 8, Rule 3 Defendant must deal specifically with each allegation of fact which he rebuts re. truth; except damages. If not X, you may have received part of X. All points of substance have to be denied. Evasive denial Order 8, Rule 4
- (^) Where D denies an allegation of fact in plaint, must not do so evasively. Must answer the point of substance.
- (^) Money example in section itself Specific denial -- consequences of admission Order 8, Rule 5
- (^) Every fact in plaint, if not denied specifically or by necessary implication, or admitted in pleading, shall be taken to be admitted except as against person under disability.
- (^) I.e. not denying will constitute admission.
- (^) If D doesn’t file written statement, then Court can proceed with facts on record. Exception re. discretion in proviso. Set off particulars in written statement Order 8, Rule 6
- Must be for recovery of money
- Must be for particular, ascertained sum
- Such sum must be legally recoverable
- Need not be recoverably from same transaction
- Mustn’t exceed pecuniary limits of jurisdiction
- Both parties fill same character as they fill in P’s suit
- Claim must be recoverably by defendant to by all defendants
- Must be recoverably from P or all Ps.
Set off
Equitable set off Court may de-hors the provision of the Code allow equitable set off.
- (^) Equitable remedy
- (^) This may be for unascertained sum
- (^) Must arise of the the same transaction with P
- (^) Unlike legal set off, which is a matter of right; this is a discretionary relief which can’t be demanded as a right.
- (^) Cannot go behind equity with unclean hands
- (^) Has a much greater scope than O8 R6.
Counter
Claim
Counter claim by defendant Order 8, Rule 6A
Counterclaim is a claim made to rebut accusations against you.
If you are sued for breaching a contract and you, in turn, also file suit
against the plaintiff and claim that he was really the one who breached
the contract, your claim against the original plaintiff is an example of a
counterclaim.
Essentially erect a right, claim in respect to a cause of action
accusing to defendant against the plaintiff [Thus need not be monetary
claim]— before/after filing the suit.
Object is to ensure -- trial of all issues between same parties in one suit
and at one time
Must be before defence by D is rendered
Will have same effect as a cross-suit
P may file written statement in response to this
Counter claim to be treated as plaint (O. 7 applies)
Counter claim to be stated Order 8, Rule 6B State in written statement that he replies on any ground by way of counter claim Exclusion fo counter claim Order 8, Rule 6C P says such counter claim filed by D isn't to be in such character, but to be in an independent suit — then before issues are settled — P may apply to Court for such order of exlusion Discontinuance of suit Order 8, Rule 6D Suit of P stayed/discontinued — counter claim still may proceed Default of P to reply to counter claim Order 8, Rule 6E If P defaults then court proceeds to even make judgment against him Relief to D when counter claim succeeds Order 8, Rule 6F Set-off or counter-claim established as a defence against P’s case — and balance is found -- then judgement to party entitled to such balance/ Written statement to apply: Rules Order 8, Rule 6G Rules of written statement apply
Appearance
of parties
Order 9, Rule 1 parties appear on day fixed for summons. Suit to be heard unless adjourned. Order 9, Rule 2 Dismissal of suit where summons not served in consequence of P’s failure to pay cost Order 9, Rule 3 Where neither party appears, court may dismiss the suit Order 9, Rule 4 Where suit dismissed under R 2/3 — then P may (subject to law of limitation) bring a fresh suit Or may apply for order to set dismissal aside if shows sufficient cause for failure to attend (R.2) Order 9, Rule 5
- (^) After summons has been issued to D
- (^) Returns unserved
- (^) P fails for 7 days to apply for fresh issue of summons
- (^) Court to make order to dismiss suit
- (^) Exceptions/unless — failed to discover residence (using best endeavours); D is avoiding being served: any other “sufficient cause” Order 9, Rule 6 When only P appears; and not D (1) If summons duly served — Court may make an ex parte order (2) When summons not duly served — Then Court may direct second summons to be issued an served (3) When summons served but not in due time — Court shall postpone the hearing If P’s fault for failure to deliver summons — then P to pay cost Order 9, Rule 7 D appears on day of adjourned hearing and gives good cause Court adjourned the hearing of the suit ex party, and D assigns good cause, he may direct as to costs or otherwise. Order 9, Rule 8 When only D appears; and not P Suit dismissed unless D admits the claim or part thereof; then Court may pass a decree against the D (whole or part depend on what D has admitted) Order 9, Rule 9 Decree against P by default bars fresh suit Cause of action estoppel if decree passed u/R. But if he proves “sufficient cause” for his non-appearance, then Court shall set aside dismissal Order 9, Rule 10 Procedure in case of non-attendance of one or more Ps More P’s than one, and non-appearance — then depending on the Ps appearing, may permit the suit to proceed in the same way as if all Ps appeared Order 9, Rule 11 Procedure in case of non-attendance of one or more Ds
SUIT SHALL PROCEED.
Court’s order to apply to even D’s not present Order 9, Rule 12 When party ordered to appear, doesn’t Will be subject to rules in this Order re. P/D who doesn’t apply
TRIAL COMMENCES Issues Court must pronounce judgement on all issues. Order 14, Rule 2
Court cannot abandon an issue. The Court is to analyse and must give
a finding.
Materials for framing issues Order 14, Rule 3
- Allegations on oath made by parties through their pleadings or
otherwise;
- Answers to interrogatories;
- Documents produced by parties. Court may examine witnesses/ documents before issues framed Order 14, Rule 4 If court belief that issues can’t be framed without examination fo person or inspection of document — can adjourn not more than 7 days. May compel attendance of person or production of document Amend/Strike out issues Order 14, Rule 5 Before passing a decree, Court may amend issues or frame additional issues — as may be necessary for determining matters in controversy. Q of fact or law may by agreement be stated in form of issues Order 14, Rule 6 After inquiry — Court satisfied — judgement Order 14, Rule 7 If proper inquiry — (1) Agreement duly executed; (2) have substantial interest; (3) fit to be tried and decided — shall proceed where Court states reasons, finding and decision as if issue was framed by Court itself. Attachment before Judgement D called to furnish security Order 38, Rule 5
- Any stage of the suit
- Where D may obstruct or cause delay to execution of decree where he’s trying to dispose property or remove it from local limits of jurisdiction —
- Court may direct him to furnish security and place before the Court the property or value of the same.
- P shall specify the property required to be attached
- Conditional attachment also OK. No cause, no security attachment Order 38, Rule 6 D fails to show cause why he didn’t or why D doesn’t furnish security; then Court may order attachment. Per contra, if D furnishes such security, then order of attachment would be withdrawn. Mode of attachment Same as in exec of decree — O. 38, R 7 Adjudication of claim of attachment re. property Same as in exec of decree — O. 38, R Remove attachment when security paid/suit dismissed Order 38, Rule 9 Suit dismissed — (1) D furnished security with security for cost of attachment or (2) when suit is dismissed Doesn’t affect rights existing prior to attachment Order 38 Rule 10 This is not the rights of parties to the suit, but other persons. No re-attachment in execution Order 38 Rule 11 Shall not be necessary to apply for re-attachment. Attachment before judgement continues even in execution. Can’t attach agricultural produce Order 38 Rule 12 Small Cause Court can’t attach movable property Order 38 Rule 13 Injunctions Cases where Interim injunctions granted Order 39, Rule 1
- property in dispute — danger of being wasted, damaged or alienated, wrongfully sold in execution — by any party to suit
- D threatens/intends to dispose property to defraud creditors
- D threatens to — dispossess, or otherwise cause injury to P — Court may grant temporary injunction Restrain repetition or continuance of breach Order 39, Rule 2 Breach of contract or other injury of any kind — P may at any time , whether or not compensation claimed in suit — apply for temporary inunction to prevent him from coming breach/injury Consequence of disobedience to injunction Order 39, Rule 2A
- (^) may order it to be attached and may also order detainment in civil prison not more than 3 months
- (^) No attachment shall be in force for more than a year.
- (^) If still breach — cause such attached property to be sold — proceeds for compensation Notice to be sent before injunction Order 39, Rule 3 Exception — delay Else, direct notice of application to opposite party. Send certain documents. Direct application in 30 days Order 39, Rule 3A Where injunctive without notice Dicharge, vary, set aside injunction Order 39, Rule 4
- (^) Discharge where any party is dissatisfied with an order
- (^) Application for temporary injunction — party made false or misleading statement
- (^) Injunction without notice
- (^) Then court shall vacate, unless “interests of justice” prevails
- (^) Where injunction has been passed after party has been given opportunity to be heard — then shall not D/V/SA on application of THAT party — unless change in circumstances or undue hardship Injunction on corporation Order 39, Rule 5 Binds not just corporation, but also members and officers whose PERSONAL action it seeks to restrain Interlocutory Orders Power to order interim sale Order 39, Rule 6 On application of party — order sale of any immovable property being the subject-matter of suit — or that attached before judgement — which is subject to speedy and natural decay Or which is ‘just and sufficient cause’ — sold at once. Detention, Preservation, Inspection of subject matter Order 39, Rule 7 Detention, Preservation, Inspection of subject matter of the suit — may authorise person to enter upon or into land/building in possession of another party May order samples, observation, experienment which is necessary for full evidence/information Application for such orders to be after notice Order 39, Rule 8 Application by P for order u/R.6/7 may be any time after institution of suit. For D, after appearance Unless delay, notice to be given to opposite party Party put in immediate possession of land the subject-matter of suit Order 39, Rule 9 Land paying revenue to Govt., or tenure liable to sale — subject matter of a suit — if the party in possession neglects to pay the Govt revenue/rent —and other party claiming interest, may, upon payment, be put in immediate possession Deposit money in Court Order 39, Rule 10 Subject matter of suit is money or thing capable of delivery — party admits he holds this as trustee — or that it belongs/due to another party — Court may order it to be deposited Appointment of receivers Order 40, Rule 1 Receiver appointed before or after decree — to remove any person from possession or custody — commit same possession/custody/management to receiver — confer powers as (1)(d)
Receivers
Remuneration Order 40, Rule 2 Court — general or specific order — fix amount Duties Order 40, Rule 3
- furnish security to account for what he receives in respect of property
- Submit his accounts
- Pay amount due from him
- Responsible for loss or negligence Enforcement of receiver’s duties Order 40, Rule 4 If on failure to submit accounts; or fails to pay amounts due from him; or causes loss to property on negligence or default — then Court may direct his property to be attached and sold When collector may be appointed receiver Order 40, Rule 5 Land paying revenue to Govt; or land where revenue has been assigned or redeemed — with consent, collector appointed as receiver
Judgement +
Decree
Pronouncement of judgement Order 20, Rule 1 Once hearing is over, should be no break bet. Reservation and judgment, within 30 days of conclusion of hearing. If it is not practical due to extraordinary circumstances, 60 days. Due notice of day fixed for judgment needs to be given to parties and must be dated and signed by the judge. Decree for recovery of immovable property Order 20, Rule 9
- Subject matter of suit is immovable property; decree shall contain description enough to identify Decree for recovery of movable property Order 20, Rule 10 Decree is for movable property — then such decree shall state the amount of money to be paid as an alternative if delivery can’t be had. Mesne profits Order 20, Rule 12 WWhere the suit is for the recovery of possession of immovable property and rent or mesne profits then the court may pass a decree-
- Possession of property
- Rents arising out of the property Decree in administration suit Order 20, Rule 13 Where a suit is for an account of any property or for its due administration under the decree of the court, the court shall before passing the final decree pass a preliminary decree ordering such accounts and inquiries to be made. Set/off counter claim Order 20, Rule 19 Set off/counter claim — decree shall state the amount re. recovery or due.
Costs Order 20A
- (^) Expenditure incurred for giving notice required
- (^) Expenditure incurred for giving notice not required
- (^) typing, writing, printing pleadings
- (^) charges re. inspection
- (^) Incurred for producing witnesses
- (^) in case of appeals, charge for acquiring judgements and decrees to be filed
Execution
SEE PRINTED NOTES ON THESE TOPICS.
Appeals
Reference, review,
revision
