CODE

OF
CIVIL PROCEDURE-II

TUTORIALS
SUBMITTED BY:-

SUBMITTED TO:-

HINA ILIYAS

Prof. ATYAB SIDDIQUI

8TH SEMESTER
FACULTY OF LAW
JAMIA MILLIA ISLAMIA
NEW DELHI.

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ACKNOWLEDGEMENT

At the outset, I would like to thank Prof. Atyab Siddiqui for his guidance and support.
Without his kind support, this submission could not have been possible in time.
I would like to thank my Dean, Prof. Manjula Batra, Faculty of Law, Jamia Millia Islamia
University, for being a guiding force throughout the course of this submission and being
instrumental in the successful completion of this project without which, my efforts would
have been in vain.
I would also like to express my heartfelt gratitude to the other faculty Members, for being
immeasurably accommodating the requirements of this humble endeavour. I would like to
thank my librarians, seniors, etc.

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TUTORIAL 1. X lost a suit pertaining to the ownership of White Acre.

After decree had been passed, while attending a marriage ceremony, he per
chance meets his maternal uncle who had been residence in Canada and
was on a short visit to India. Material to state that it was first time that
maternal uncle had met the person who had filed the suit. During
conversation Maternal Uncle informed the plaintiff that his grandfather
had made a will by which White Acre was bequeathed to the plaintiff.
According to him this will should be somewhere in the old ancestral house.
The plaintiff, after some days, visits his ancestral house and searches for
the will. In a room stacked with old and moth eaten books that he lays his
hand on an envelope and discovers the will. The said will is a material
document so relevant that had this been produced before trial court in that
scenario the plaintiff would have become the title holder of White Acre.
Analyse whether these facts justify and warrant the filing and
maintainability of a review petition.
Answer:Introduction:Review literally and even judicially means re-examination or re-consideration of its own
decision by the very same court. Basic philosophy inherent in it is the universal acceptance of
human fallibility. An application for review may be necessitated by way of invoking the
doctrine actus curiae neminem gravabit which means an act of the court shall prejudice no
man. The othe maxim is, lex non cogit ad impossibillia which means the law does not
compel a man to do what he cannot possibly perform.
Section 114 of the Code of Civil Procedure
This section provides for a substantive power of review by a civil court and consequently by
the appellate courts. Section 114 of the code although does not prescribe any limitation on the
power of the Court but such limitations have been provided for in Order XLVII, Rule 1 of the
CPC.

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The grounds on which review can be sought are enumerated in Order XLVII, Rule 1
CPC, which reads as under:
Application for review of judgment
(1) Any person considering himself aggrieved
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been
preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery
of new and important matter or evidence which, after the exercise of due diligence was not
within his knowledge or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent on the face of the
record, or for any other sufficient reason, desires to obtain a review of the decree passed or
order made against him, may apply for a review of judgment to the court which passed the
decree or made the order.

So the circumstances when review lies are:

(a) cases in which appeal lies but not preferred,
(b) cases in which no appeal lies,
(c) decisions on reference from Court of Small Causes; and
The grounds are:
(i) discovery of new and important matter or evidence, or
(ii) mistake or error apparent on the face of the record, or
(iii) any other sufficient reason.

Related Case Laws and Illustrations:

Scope of an application for review is much more restricted than that of an appeal. The
Supreme Court in Lily Thomas vs. Union of India, AIR 2000 SC 1650 held that the power
of review can only be exercised for correction of a mistake and not to substitute a view and
that the power of review could only be exercised within the limits of the statute dealing with
the exercise of such power. The review cannot be treated like an appeal in disguise. The mere
possibility of two views on the subject is not a ground for review. Once a review petition is
dismissed no further petition of review can be entertained.
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For review an application has to be made by the aggrieved party. Where an appeal has been
preferred a review application does not lie. But an appeal may be filed after an application for
review. In such event the hearing of the appeal will have to be stayed. If the review succeeds
the appeal becomes infructuous.

After the amendment in Section 141 of the Code of Civil Procedure and insertion of
Explanation to that Section it is clear that the provisions of Order XLVII of the code do not
apply to writ petitions filed in a High Court under Article 226 of the Constitution. However,
there are definitive limits to the exercise of the power of review by the High Courts.

The legal propositions set out by the Apex Court in Gujarat University vs. Sonal P. Shah,
AIR 1982 Guj 58, are as follows:(1) The provisions of the Civil Procedure Code in Order XLVII are not applicable to the High
Courts power of review in proceedings under Article 226 of the Constitution,
(2) The said powers are to be exercised by the High Court only to prevent miscarriage of
justice or to correct grave and palpable errors. (The epithet palpable means that which can
be felt by a simple touch of the order and not which could be dugout after a long drawn out
process of argumentation and ratiocination).
(3) The inherent powers, though ex facie plenary, are not to be treated as unlimited or
unabridged, but they are to be invoked on the grounds analogous to the grounds mentioned in
Order XLVII, Rule 1; namely:
(i) discovery of new evidence,
(ii) existence of some mistake/error,
(iii) analogous ground.
These are the very three grounds referred to in Order XLVII, Rule 1 CPC and by declaration
of law at the hands of the Supreme Court in the above case they are the hedges or limitations
of the High Courts power.

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Illustration:
A decree for the restitution of conjugal rights was passed; subsequently it turned out to be
that the parties were cousin brothers and sisters, the decree being null and void, a review was
allowed.

Review by the Supreme Court:

The provisions of Order XLVII apply to orders passed under the Code of Civil Procedure.
Article 137 of the Constitution confers power on the Supreme Court to review its judgments
subject to the provisions of any law made by Parliament or the Rules made under clause (c)
of Article 145. The power of the Supreme Court, therefore, cannot be curtailed by the Code
of Civil Procedure.
Reply:
Keeping in view the things discussed above it is clear that all the grounds required under
Order XLVII Rule 1 for review is satisfied. Hence, the order of the Court can be reviewed.

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TUTORIAL 2. A trial Court has come to a conclusion that Black Acre is

vested and owned by the Plaintiff. The defendant files an appeal
challenging the same decision on a question of fact stating that the trial
Court did not properly appreciate the evidence on record. Discuss the
maintainability of the 1st appeal. Also express your views as to whether the
second appeallate Court interfere if at all on aspects of evidence.
Answer:
Introduction:
The expression appeal has not been defined in the Code of Civil Procedure 1908. In general
parlance it means a proceeding taken before a superior Court or authority for reversing or
modifying decision of an inferior Court or authority for reversing or modifying decision of an
inferior Court or authority on ground of error.
Any person who is aggrieved by any decree or order passed by the Court may prefer an
appeal in a Superior Court if an appeal is provided against the decree or order.
First Appeal [Section 96] of the Code of Civil procedure
Section 96 of the Code provides for an appeal from original decree. Section 96 of the code in
express terms, gives a right of appeal from every decree passed by any Court exercising
original jurisdiction to the Court authorised to hear appeals from the decision of such Court.
The right of appeal is neither a natural nor an inherent right attached to the litigation like the
right of suit. The right of appeal is not a mere matter of procedure, but it is a substantive right
and has to be regulated in accordance with law in force at the relevant time. Appeal can be
preferred only where a right of appeal is conferred by a statute or a rule having the force of a
statute or authority equivalent to a statute. The right of appeal can be taken away but only by
a subsequent enactment if so provided expressly or by necessary implication.
The right accrues to a party on the date of institution of the suit, although it may be actually
exercised when adverse judgment is pronounced. The right is governed by the law prevailing
at the date of institution of suit.

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An appeal is considered as a continuation of the original suit rather than as the inception of a
new action. A person aggrieved by a decree has a right of appeal although the decree is
specific term may not have been passed against him.
Section 100 of Code of Civil Procedure
Section 100 of the Code of Civil Procedure, 1908 provides for a second appeal to the High
Court from an appellate decree. There is no vested right of appeal unless the statute so
provides. If a statute provides for a condition precedent to be satisfied before a court can
exercise its appellate jurisdiction, the court is under obligation to satisfy itself whether the
condition prescribed is fulfilled. Exercise of the appellate jurisdiction without the fulfilment
of the statutory mandate would be without jurisdiction and therefore a nullity.
Section 100 CPC reads as follows:
"100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by
any other law for the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power
of the court to hear, for reasons to be recorded, the appeal on any other substantial question of
law, not formulated by it, if it is satisfied that the case involves such question."
Though Section 100 CPC deals with the High Court's jurisdiction in second appeal, it has the
effect of declaring that the first appellate court is the final court on facts and the High Court
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in a second appeal cannot reappreciate evidence or facts unless the case involves a substantial
question of law.
Section 100 CPC was amended in 1976 imposing drastic restriction on the High Court's
jurisdiction in entertaining a second appeal. Even prior to the 1976 amendment, the first
appellate court was treated as the final court of facts by the Privy Council. The High Court
had no right to sit in appeal on facts. In Durga Choudhrain v. Jawahir Singh Choudhri1 the
Privy Council held thus: (IA p. 127)
"There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of
fact, however gross or inexcusable the error may seem to be."2
In Deity Pattabhiramaswamy v. S. Hanymayya3, Subba Rao, J. (as the learned Chief Justice
then was) examined the reasons for evolving the practice and strongly criticised the practice
of the High Courts in disposing of second appeals without any substantial question of law
involved. The learned Judge observed:
"But, notwithstanding such clear and authoritative pronouncements on the scope of the
provisions of Section 100, Civil Procedure Code, some learned Judges of the High Courts are
disposing of second appeals as if they were first appeals. This introduces, apart from the fact
that the High Court assumes and exercises a jurisdiction which it does not possess, a
gambling element in the litigation and confusion in the mind of the litigant public."4
In Dudh Nath Pandey v. Suresh Chandra5 the Supreme Court held that the High Court cannot
set aside findings of fact of the first appellate court and come to a different conclusion on
reappraisal of evidence while exercising jurisdiction under Section 100 CPC. In Annapoorani
Ammal v. G. Thangapalam6the Supreme Court held that a perusal of Section 100 CPC clearly
indicates that the High Court had the jurisdiction to interfere only when a substantial question

Reiterated by Subba Rao, J. (as he then was) in Sinha Ramanuja Jeer v. Ranga Ramanuja Jeer, AIR 1961 SC
1720 at p. 1730.
2
AIR 1959 SC 57
3
Ibid., at p. 59. See also Karbalai Begum v. Mohd. Sayeed, (1980) 4 SCC 396; E. Mahboob Saheb v. N.
Sabbarayan Chowdhary, (1982) 1 SCC 180 at pp. 184, 185
4
(1986) 3 SCC 360 at pp. 362, 363. See also Ramaswamy Kalingaryar v. Mathayan Padayachi, 1992 Supp (1)
SCC 712; National Insurance Co. Ltd. v. State Bank of India, (1993) 2 SCC 673.
5
(1989) 3 SCC 287 at p. 292
6

(1995) 6 SCC 213

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of law is involved and even then it is expected that such a question shall be so framed
although the court is not bound by that question as the proviso indicates.
In Kashibai v. Parwatibai7 the Supreme Court observed as under:
"It may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil
Procedure explicitly provides that an appeal shall lie to the High Court from every decree
passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that
the case involves a substantial question of law. Sub-section (4) of Section 100 provides that
when the High Court is satisfied that a substantial question of law is involved in any case it
shall formulate that question. But surprisingly enough the High Court seems to have ignored
these provisions and proposed to reappreciate the evidence and interfere with the findings of
fact without even formulating any question of law. It has been the consistent view of this
Court that there is no jurisdiction to entertain a second appeal on the ground of erroneous
finding of fact, based on appreciation of the relevant evidence."8 (emphasis added)
In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor9 it was held that the question
whether a finding of fact is against the weight of evidence does not project a question of law,
much less a substantial question of law.
What is a substantial question of law?
The test to determine whether a question is a substantial question of law or not was laid down
by a Constitution Bench of the Supreme Court in Chunilal V. Mehta and Sons Ltd. v.Century
Spg. and Mfg. Co. Ltd10. while determining the said expression occurring in Article 133(1) of
the Constitution of India. The Supreme Court laid down the test as follows11:
"The proper test for determining whether a question of law raised in the case is substantial
would, in our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in
7

Ibid., at pp. 218-19. See also Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392; Secy., Taliparamba
Education Society v. Moothedath Mallisseri Illath M.N., (1997) 4 SCC 484; Karnataka Board of Wakf v.AnjumanE-Ismail Madris-Un-Niswan, (1999) 6 SCC 343
8
(1999) 2 SCC 471. Other cases in the series are: Ranbir Singh (Dr) v. Asharfi Lal, (1995) 6 SCC
580;Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166;Kaluram v. Shrinathdas, (2000) 3 SCC 576; Roop
Singhv. Ram Singh, (2000) 3 SCC 708; Ramavilasom Grandhasala v. N.S.S. Karayogam, (2000) 5 SCC 64.
9
1962 Supp (3) SCR 549
10
Ibid., at pp. 557-58
11
(2001) 6 SCC 652

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the sense that it is not finally settled by this Court or by the Privy Council or by the Federal
Court or is not free from difficulty or calls for discussion of alternative views. If the question
is settled by the highest court or the general principles to be applied in determining the
question are well settled and there is a mere question of applying those principles or that the
plea raised is palpably absurd the question would not be a substantial question of law."
The above test laid down by the Supreme Court is to be applied by the High Courts to acquire
jurisdiction under Section 100 CPC.
Keeping in view the amendment made in 1976, a High Court can exercise its jurisdiction
under Section 100 CPC only on the basis of substantial questions of law which are to be
framed at the time of the second appeal and the second appeal has to be heard and decided
only on the basis of such duly framed substantial questions of law. A judgment rendered by
the High Court under Section 100 CPC without following the aforesaid procedure cannot be
sustained.
In M.S.V. Raja v. Seeni Thevar12 it was held by the Supreme Court that the formulation of a
substantial question of law may be inferred from the kind of questions actually considered
and decided by the High Court in second appeal, even though the substantial questions of law
were not specifically and separately formulated. The observations made by the Court in this
regard are as follows:
"We are unable to accept the argument of the learned Senior Counsel for the appellants that
the impugned judgment cannot be sustained as no substantial question of law was formulated
as required under Section 100 CPC. In para 22 of the judgment the High Court has dealt with
substantial questions of law. Whether a finding recorded by both the courts below with no
evidence to support it was itself considered as a substantial question of law by the High
Court. It is further stated that the other questions considered and dealt with by the learned
Judge were also substantial questions of law. Having regard to the questions that were
considered and decided by the High Court, it cannot be said that substantial questions of law
did not arise for consideration and they were not formulated. Maybe, substantial questions of

12

Ibid., pp. 659-60, para 18

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law were not specifically and separately formulated. In this view, we do not find any merit in
the argument of the learned counsel in this regard."13
To determine the ratio of this case qua Section 100 CPC, the original proposition may be
stated as follows:
"The judgments of High Courts in second appeals can be sustained if the judgments consider
and decide substantial questions of law without formulating them specifically and
separately."
Now if Prof. Wambaugh's reversal test to determine ratio decidendi is applied, the original
proposition may be reversed as follows:
"The judgments of High Courts in second appeals cannot be sustained if the judgments
consider and decide substantial questions of law without formulating them specifically and
separately."
It can be seen that the result of the decision will not be the same after the reversal of the
original proposition. If the reversed proposition is applied, the appeal will be allowed.
Therefore, the original proposition is the ratio of the case. It is submitted with respect that the
ratio of this case is inconsistent with sub-sections (3), (4) and (5) of Section 100 CPC. This
decision has the effect of diluting the provisions of Section 100 CPC.
Sub-section (3) of Section 100 imposes a statutory obligation on the appellant in a second
appeal to formulate the substantial question of law in the memorandum of grounds of appeal.
The proviso to sub-section (5) read with sub-section (4) makes it clear that formulation of
substantial question of law is mandatory and if any other substantial question of law arises,
the same can be decided without formulating it/them. The proviso to sub-section (5) clearly
negates the view taken inM.S.V. Raja case. It is respectfully submitted that the holding of the
Court that "whether a finding recorded by both the courts below with no evidence to support
it was itself considered as a substantial question of law by the High Court" does not pass the
test laid down by the Constitution Bench of the Supreme Court in Chunilal Mehta case. It is
submitted with respect that the ratio regarding Section 100 CPC in M.S.V. Raja v. Seeni
Thevar needs reconsideration.

13

AIR 1963 SC 302

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Reply
This issue was answered in the negative by the Supreme Court in V. Ramachandra
Ayyar v. Ramalingam Chettiar14. In this case, the Supreme Court distinguished the Privy
Council's decision in Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy
Bahadur15 wherein the Privy Council observed that it is better that the appellate court
whenever it reverses the judgment of the lower court, comes into close quarters with the
judgment of the lower court and meets the reasoning therein. This decision was distinguished
on the ground that the said observations were made in an appeal from the judgment of a High
Court rendered in first appeal. In S.V.R. Mudaliar v. Rajabu F. Buhari16 a two-Judge Bench
followed the Privy Council decision in Rani Hemanta Kumari Debi case without
noticing Ramachandra Ayyar case. InArumugham v. Sundarambal the Supreme Court
overruled S.V.R. Mudaliar case and affirmed Ramachandra Ayyar case and held that it is
open to the first appellate court to consider the evidence adduced by the parties and give its
own reasons for accepting the evidence on one side or rejecting the evidence on the other
side. It was held that it is not permissible for the second appellate court to interfere with such
findings of the first appellate court only on the ground that the first appellate court had not
come to grips with the reasoning given by the trial court.
The above discussion leads to the following results:
1. Section 100 CPC impliedly declares that the first appellate court is the final court of facts
and the High Court has no jurisdiction to interfere with the finding of facts reached by the
first appellate court, however gross the error may seem to be.
2. The High Court is not a second court of first appeal under Section 100 CPC.
3. Since an appeal is a creature of a statute, the High Court should satisfy itself about the
presence of the substantial question of law before admitting the second appeal. Section 100
CPC does not provide an absolute and automatic right of appeal.
4. A question of law, to be substantial, must satisfy the test laid down by the Supreme Court
in Chunilal Mehta case.
14

16 MLJ 272 : 10 CWN 630 (PC)

(1995) 4 SCC 15
16
(1999) 4 SCC 350
15

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5. If a second appeal is allowed without framing a substantial question of law, the same is
liable to be set aside straight away without remanding back to the High Court since an
appellant in a second appeal cannot take advantage of his own wrong by not fulfilling the
mandatory requirement laid down in sub-section (3) of Section 100 CPC.
6. In view of sub-section (4) of Section 100 CPC substantial question or questions of law
must be expressly and specifically formulated by the High Court and the contrary view taken
inM.S.V. Raja case is not correct.
7. It is not permissible for the High Court to interfere with findings of the first appellate court
only on the ground that the first appellate court had not come to close grips with the
reasoning given by the trial court.

TUTORIAL 3:- Annex and paste a copy of summons published in a

Newspaper.

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TUTORIAL 4:- Government of India filed a plaint which was signed and
verified by an under secretary. Notices were issued to other defendant. The
defendant in his written statement has denied that the plaint has been
signed and verified by a competent authority. The concerned officer who
had signed the plaint for and on behalf of the Government of India
subsequently realised that he was not competent to sign the plaint, infact he
authorised the signatory should have been the principal secretary of thet
department. You are contacted by the appropriate department to legally
enable the said issue. Discuss and advice.
Answer:The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999,
this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with
an added proviso to prevent application for amendment being allowed after the trial has
commenced, unless the Court comes to the conclusion that in spite of due diligence, the party
could not have raised the matter before the commencement of trial. The proviso, to some
extent, curtails absolute discretion to allow amendment at any stage. Now, if application is
filed after commencement of trial, it must be shown that in spite of due diligence, such
amendment could not have been sought earlier.
It is clear that while deciding the application for amendment ordinarily the Court must not
refuse bona fide, legitimate, honest and necessary amendments and should never permit mala
fide and dishonest amendments. The purpose and object or Order 6 Rule 17 of the Code is to
allow either party to alter or amend his pleadings in such manner and on such terms as may
be just. Amendment cannot be claimed as a matter of right and under all circumstances, but
the courts while deciding such prayers should not adopt a hyper technical approach. Liberal
approach should be the general rule, particularly in cases where the other side can be
compensated with costs. Normally amendments are allowed in the pleadings to avoid
multiplicity of litigations.17
Principles

17

Rameshkumar Agarwal v.Rjamala Exports Private Limited and Others, (2012) 5 SCC 337

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On critically analyzing both the English and Indian Cases, some basic principles emerge
which ought to be taken into consideration while allowing or rejecting the application for
amendment:
(1)

Whether the amendment sought is imperative for proper and effective adjudication of

the case;
(2) Whether the application for amendment is bona fide or mala fide;
(3)

The amendment should not cause such prejudice to the other side which cannot be

compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5)

Whether the proposed amendment constitutionally or fundamentally changes the nature

and character of the case; and

(6)

As a general rule, the court should decline amendments if a fresh suit on the amended

claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with the
application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.18
Reply
All amendments ought to be allowed which satisfy the two conditions: 19
(a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the real questions in controversy
between the parties. Amendments should be refused only where the other party cannot be
placed in the same position as if the pleading had been originally correct, but the amendment
would cause him an injury which could not be compensated in costs.
It is clear that while deciding the application for amendment ordinarily the Court must not
refuse bona fide, legitimate, honest and necessary amendments and should never permit mala
fide and dishonest amendments. Since there was a bonafide mistake so, the amendment of the
pleading should be allowed.
18
19

Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84

Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil 1957 AIR 363

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TUTORIAL 5:- A suit has been filed in a civil court for eviction of a tenant
by the landlord. The premises are situated in Delhi and the rent is 2000 Rs.
Per month. As per the provisions of Delhi Rent Control Act, the issue at
hand should have been decided by the rent controller and not by a civil
court. The present suit appears to be barred by a provision of law.
Assuming that you are the counsel for the respondent tenant. Advice your
client about the provision for rejection of plaint.
Answer:If the plaint is defective on any of the grounds mentioned in Order 7 , Rule 11 of C.P.C ,
the plaint can be rejected by the Court .
According to this Rule 11, a plaint can be rejected by the Court in any of the following
six cases
a) where it does not disclose the cause of action ;
b) where the relief claimed is undervalued , and the plaintiff , on being required by the Court
to correct the valuation within a time to be fixed by the Court , fails to do so ;
c) where the relief claimed is properly valued , but the plaint is written upon paper which is
insufficiently stamped , and the plaintiff , on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court , fails to do so ;
d) where the suit appears from the statement in the plaint to be barred by any law ;
e) where it is not filed in duplicate ; and
f) where the plaintiff has not complied with the provisions of Rule 9 or where the plaintiff
fails to present the copies of plaint along with requisite fees for service of summons on the
defendants within seven days from the date of order of service of summons .
It is also provided that the time fixed by the Court for correction of the valuation or for
supplying the requisite stamp-paper is not to be extended , unless the Court is satisfied , for
reasons to be recorded , that the plaintiff was prevented by some exceptional cause from
correcting the valuation or supplying the stamp paper , as the case may be , within the time

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fixed by the Court and that refusal to extend such time would cause grave injustice to the
plaintiff .An appellate Court , under this rule read with section 107 of CPC , before rejecting
the plaint , must allow time to the plaintiff to supply the deficit court fee . When a plaint is
rejected under Rule-11, the Judge must record an order to that effect , with the reasons for
such an order . A plaint cannot be rejected against some of the defendants partially and
retained against the other defendants; it must be rejected as a whole. An order passed by
Court rejecting a plaint is a decree under section 2(2) of the Civil Procedure Code and so the
order is appealable.
Clause (d) of this rule authorizes the rejection of a plaint where the suit appears from the
statement in the plaint to be barred by any law. Thus, where a suit was filed for damages for
defamatory statements in the Parliament, the suit was held to be barred by Article 105(2) of
the Constitution. According to Order 7, Rule 11,the rejection of plaint should focus that the
statement in the plaint without addition or subtraction must show that it is barred by any law
to attract rejection of plaint20.
Further the plaintiff is not precluded from filing a fresh suit. According to Rule-13, the
rejection of a plaint, on any of the above grounds, does not, by itself, preclude the plaintiff
from presenting a fresh plaint on the same cause of action within the period of limitation. So
plaintiff can file a fresh plaint and suit thereby on the same cause of action.
For rejection of the plaint under Order 7 Rule 11 the averments in the plaint should be
unequivocal, categorical and specific leading to only conclusion that the plaint is barred.21
There cannot be any compartmentalization, dissection, segregation and inversions of the
language of various paragraphs in the plaint. If such a course is adopted it would run counter
to the cardinal canon of interpretation according to which a pleading has to be read as a
whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and
to read it out of the context in isolation. Although it is the substance and not merely the form
that has to be looked into, the pleading has to be construed as it stands without addition or
subtraction or words or change of its apparent grammatical sense. The intention of the party
concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a

20
21

Natarajan Vs Ashim Bai AIR 2008 SC 363

Gaon Sabha and Anr. Vs. Nathi and Ors. (2004) 12 SCC 55

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whole. At the same time it should be borne in mind that no pedantic approach should be
adopted to defeat justice on hair-splitting technicalities.22

22

Sopan Sukhdeo Sable and Ors. Vs. Assistant Charity Commissioner and Ors., (2004) 3 SCC 137

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TUTORIAL 6:- An applicant has challenged as unconstitutional the

provisions of admissions in a university. Analyse the essential postulates for
the grant of interim relief and whether such an applicant shall be in a
position to get admission under provision of Order XXXIX Rule 1 and 2.
Answer:Introduction
Every court is constituted for the purpose of administering justice among parties and,
therefore, must be deemed to possess all such power as may be necessary to do full and
complete justice to the parties before it.
It is well settled principle of law that interim order can always be granted in the aid of and as
ancillary to the main relief available to the party on final determination of his rights in asuit
or any other proceeding. Therefore, a court undoubtedly possesses the power to grant interim
relief during the pendency of the suit.
Object of granting Interim Relief
The primary purpose of granting interim relief is the preservation of property in dispute till
legal rights and conflicting claims of the parties before the court are adjudicated. It aims at
striking a delicate balance between two conflicting interests i.e. injury and prejudice, likely to
be caused to the plaintiff if the relief is refused; and injury and prejudice likely to be caused
to the defendant if the relief is granted. The court in the exercise of sound judicial discretion
can grant or refuse the interim relief.
The underlying object of granting temporary injunction is to maintain and preserve status quo
at the time of institution of the proceedings and to prevent any change in it until the final
determination of the suit. It is in the nature of protective relief granted in favour of a party to
prevent future possible injury.
Order XXXIX Rule 1 and 2
1. Cases in which temporary injunction may be granted.- Where in any Suit it is proved
by affidavit or otherwise
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
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(b) that the defendant threatens, or intends, to remove or dispose of his property with a view
to defrauding his creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit,the court may by Order grant a
temporary injunction to restrain such act, or make such other Order for the purpose of staying
and preventing the wasting, damaging, alienation, sale, removal or disposition of the property
or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any
property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until
further orders.
2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for
restraining the defendant from committing a breach of contract or other injury of any kind,
whether compensation is claimed in the suit or not, the plaintiff may, at any time after the
commencement of the suit, and either before or after judgment, apply to the court for a
temporary injunction to restrain the defendant from committing the breach of contract or
injury complained of, or any breach of contract or injury of a like kind arising out of the
same contract or relating to the same property or right.
(2) The court may by Order grant such injunction, on such terms, as to the duration of the
injunction, keeping an account, giving security, or otherwise, as the court thinks fit.

Principles for holding Interim Relief

Generally before granting interim relief, the Court must be satisfied about the following
factors:
(i)

Whether the plaintiff has a prima facie case?

(ii)

Whether the plaintiff would suffer irreparable injury ?

(iii)

Whether the balance of convenience is in favour of the plaintiff?

The above three rules are described as three pillars on which foundation of every order of
interim relief rests. All these three elements are of extreme importance.
Reply
Power to grant interim relief is extraordinary in nature and it can be exercised cautiously and
with circumspection. A party is not entitled to this relief as a matter of right or course. Grant
of injunction being equitable remedy, it is in the discretion of the court and such discretion
must be exercised in favour of the plaintiff only if the court is satisfied that, unless the
defendant is restrained by an order of injunction, irreparable loss or damage will be caused to
the plaintiff. In reply to the question above A court cannot give an answer in affirmation
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when it comes to the grant of interim relief neither it can give an answer to negate the rights
of a person. So, to maintain the delicate balance between the three basic principles of grant of
interim relief and to meet the ends of justice in my opinion the Court will pass any such order
as it deems fit but cannot pressurise the administration to give the admission to the applicant
till the pendency of the case.

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TUTORIAL 7: A suit is to be filed for liquidated demands of money based

on a written contract. Discuss whether the plaintiff can excite the
provisions of Order XXXVII for summary adjudication.

Answer:Introduction:Order 37 provides summary procedure in suits based on negotiable instruments or where the
plaintiff seeks to recover debt or liquidated amount. The essence of summary suits is that the
defendant is not, as in an ordinary suit, entitled as of right to defend the suit. He must apply
for leave to defend within the stipulated period of ten days. Such leave will be granted only if
the affidavit filed by the defendant discloses such facts as will make it incumbent upon the
plaintiff to prove consideration or such other facts as the court may deem sufficient. The
provisions of Order 37 are merely rules of procedure. They do not alter the nature of the suit
or jurisdiction of courts.
Object:The object underlying the summary procedure is to prevent unreasonable obstruction by the
defendant who has no defence and to assist expeditious disposal of cases.
Trading and commercial operations will be seriously impeded if money disputes between the
parties are not adjudicated upon immediately.
Taken by and large, the object of the provision is to ensure that the defendant does not
unnecessarily prolong the litigation and prevent the plaintiff from obtaining a decree by
raising untenable and frivolous defences in a class of cases where speedy decisions are
desirable in the interests of commercial transactions.
Extent and Applicability
The provisions of Order 37 apply to High Courts, City Civil Courts, Courts of Small Causes
and other superior courts. They apply to (a) suits based upon bills of exchange, hundies and
promissory notes, and (b) suits in which the plaintiff seeks to recover a debt or liquidated
amount payable by the defendant with or without interest arising (i) on a written contract; or
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(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or debt
other than penalty; or (iii) on a guarantee, where the claim against the principal is in respect
of a debt or liquidated amount.
Test
The test whether leave to defend should be granted or not is to see whether the defence raises
a real, honest and bonafide dispute and raises a triable issue or not. If the court is satisfied
that the defence has raised a triable issue or not. If the court is satisfied that the defence has
raised a triable issue or a fair dispute has arisen, leave to defend should not be refused. Again,
it is hazardous and unfair to pronounce a categorical opinion on such matter before the
evidence is taken. It is only in cases where the defence is patently dishonest or so
unreasonable that it could not reasonably be expected to succeed that the exercise of
discretion to grant unconditional leave can be refused. As the matter is in the discretion of the
court, no hard and fast rule can be laid down as to when the discretion should be exercised by
granting unconditional leave to the defendant. In general, the test is to see whether the
defence raises a real issue and not a sham one, in the sense that, if the facts alleged by the
defendant are established , there would be a good or even plausible defence on those facts.
Under special circumstances, the court can set aside the decree and stay the execution and
may grant leave to the defendant to appear and defend the suit. However, inherent power
under Section 15 of the Code cannot be exercised for setting aside such decree.
Reply
If the leave is not granted then a decree in favour of the plaintiff will automatically follow.
However, if permission is granted to put forth the defence then suits under Order XXXVII
will be converted into an ordinary suit. Therefore, the plaintiff should only file suit under
Order XXXVII when he convinced that the defendant does not have a good defence.
Otherwise he will have to go through the entire process of filing a suit again which will be
very time consuming and will further delay the justice.

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TUTORIAL 8: The whereabouts of a defendant are not known neither is

there any agent to accept service on his behalf nor there is any available
adult member in the family of defendant. Discuss the valid methodology for
serving such defendant.
Answer:
Introduction
When the plaintiff files a suit, the defendant has to be informed that the suit has been filed
against him, and that he is required to appear in the Court to defend it. The intimation which
is sent to the defendant by the Court is technically known as summons.
Though the expression summons has not been defined in the Code, according to the
dictionary meaning, A summons is a document issued from the office of a court of justice,
calling upon the person to whom it is directed to attend before a judge or officer of the court
for a certain purpose.
Object of issuing Summons
When a suit is filed by the plaintiff against the defendant and a relief is claimed, the
defendant must be given an opportunity as to what he has to say against the prayer made by
the plaintiff. This is in consonance with the principle of natural justice as no one can be
condemned unheard (audi alteram partem). If the defendant is not served with the summons,
a decree passed against him will not bind him.
Essentials of Summons Order v Rule 1-2
Every summons shall be signed by the judge or such officer appointed by him and shall be
sealed with the seal of the court, and must be accompanied by a plaint
Mode of service of summons: Order v Rule 9-30
The service of summons is of primary importance as it is a fundamental rule of the law of
procedure that a party must have a fair and reasonable notice of the legal proceedings
initiated against him so that he can defend himself. The problem of service of summons is
one of the major causes of delay in the progress of the suit. It is common knowledge that
defendants try to avoid service of summons. The Law Commission considered the problem
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and it was felt that certain amendments were necessary in that direction and a defendant can
be served by a plaintiff or through the modern means of communication. Accordingly,
amendments were made in the code in 1976, 1999 and 2012.
The code prescribes five principal modes of serving a summons to a defendant:
1. Personal or direct service: Order v Rules 10-16, 18
2. Service by Courts: Order v Rule 9
3. Service by plaintiff: Order v Rule 9-A
4. Substituted service: Order v Rule 17, 19-20
5. Service by post.
Substituted Service
Substituted Service means the service of summons by a mode which is substituted for the
ordinary mode of service of summons. However, it must be remembered that this is not a
regular mode of service and hence, it should not normally be allowed and can be effected
only as a last resort.
It was stated, It is true that you may go to a mans house and not find him, but that is not
attempting to find him. You should go to his house, make enquiries and, if necessary, follow
him. You should make enquiries to find out when he is likely to be at home, and go to the
house at a time when he can be found. Before service like this can be effected it must be
shown that proper efforts have been made to find out when and where the defendant is likely
to be found- not as seems to be done in this country, to go to his house in a perfunctory way,
and because he has not been found there, to affix a copy of summons on the outer door of his
house.
Where the Court orders service by advertisement in a newspaper, the newspaper should be a
daily newspaper circulating in the locality in which the defendant is last known to have
actually or voluntarily resided, carried on business or personally worked for gain. Such
service is an effective service, even if the defendant is not the subscriber of the newspaper or
is not reading it.
Order v Rule 20
Under Order v Rule 20, the service of summons is effected by the order of the court only
after the court is satisfied that the defendant avoids service of summons or it cannot be served
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in ordinary way. Such satisfaction must be recorded by the court in writing. Substituted
service is as effective as personal service. The Court must fix a time for the appearance of the
defendant and give him a reasonable time to appear before the Court.

Illustration
A was not found anywhere so, a notice was being served in a Newspaper namely,
Amrit Bazaar Patrika. But, the newspaper had only 7 circulations in a month that
too only in Bengal. Affixation in such a newspaper cannot be said to have served the
purpose of summons. Circulation means readership.
Reply
If the Court feels that the defendant is sly and trying to avoid services of summons. But
he wants to defeat it through devious manner or there is no one at all to accept service on
his behalf. Then the summons under Order v Rule 20 can be affixed at some conspicuous
place or also in Newspapers and such newspaper has to be a daily newspaper and should
have a circulation in the locality where the defendant lastly resided.

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TUTORIAL 9: Express your views so far condonation of delay is

concerned under section 5 of Limitation Act
a. Applicant engrossed in marriage
b. Miscalculation by the clerk of the council
c. Illiterate Pardanashin lady
d. Rampant poverty
Answer:
Introduction
The general rule laid down in Section 3 of the Limitation Act, 1963 declares that every
suit, appeal or application filed after the period of limitation shall be dismissed.
So far as the suit is concerned, the rule is absolute and unqualified. Any suit instituted
after the prescribed period of limitation has to be dismissed inasmuch as there is no
provision for condonation of delay in filing a suit.
In respect of appeals and applications, however, the Limitation Act, 1963 provides for
extension of time and condonation of delay in filing appeals and applications (S.5). It
provides that where the appellant or applicant satisfies the Court that he had a sufficient
cause for not preferring appeal or making application, the Court may condone delay and
hear the case on merits.
Condonation of delay and Conflicting considerations
While dealing with an application for condonation of delay, the Court will keep in view
two conflicting considerations:
i.

As far as possible, the Court would try to decide every cause on merits rather than
throwing it away on technical ground of delay without entering into real issues in
the case.

ii.

The Court must also consider an important aspect that non-filing of appeal or
application has created a valuable right in favour of the opposite party which
cannot be defeated or interfered with lightly.

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Sufficient Cause Section 5 of the Limitation Act, 1963

Section 5 of the Limitation Act, 1963 enables the court to condone delay in filing appeal or
application, if the appellant and applicant satisfies the Court that he had sufficient cause for
not preferring an appeal or making an application within such period.
The expression sufficient cause implies the presence of legal and adequate reasons. The
word sufficient means adequate enough, as much as may be necessary to answer the
purpose intended. It embraces no more than that which provides a plentitude which, when
done, suffices to accomplish the purpose intended in the light of existing circumstances and
when viewed from the reasonable standard of practical and cautious men. The sufficient
cause should be such as it would persuade the Court, in exercise of its judicial discretion, to
treat the delay as an excusable one. These provisions give the Courts enough power and
discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting
such a law does not stand frustrated. We find it unnecessary to discuss the instances which
would fall under either of these classes of cases. The party should show that besides acting
bona fide, it had taken all possible steps within its power and control and had approached the
Court without any unnecessary delay. The test is whether or not a cause is sufficient to see
whether it could have been avoided by the party by the exercise of due care and attention.
We feel that it would be useful to make a reference to the judgment of this Court in Perumon
Bhagvathy Devaswom v. Bhargavi Amma23 In this case, the Court, after discussing a number
of judgments of this Court as well as that of the High Courts, enunciated the principles which
need to be kept in mind while dealing with applications filed under the provisions of Order
22, CPC along with an application under Section 5, Limitation Act for condonation of delay
in filing the application for bringing the legal representatives on record. In paragraph 13 of
the judgment, the Court held as under:13 (i) The words sufficient cause for not making the application within the period of
limitation should be understood and applied in a reasonable, pragmatic, practical and
liberal manner, depending upon the facts and circumstances of the case, and the type of
case. The words sufficient cause in Section 5 of the Limitation Act should receive a
liberal construction so as to advance substantial justice, when the delay is not on account

23

2008 8 SCC 321

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of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of
the appellant.
(ii) In considering the reasons for condonation of delay, the courts are more liberal with
reference to applications for setting aside abatement, than other cases. While the court will
have to keep in view that a valuable right accrues to the legal representatives of the
deceased respondent when the appeal abates, it will not punish an appellant with
foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement
and decided the matter on merits. The courts tend to set aside abatement and decide the
matter on merits, rather than terminate the appeal on the ground of abatement.
(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency
of a satisfactory explanation.
(iv) The extent or degree of leniency to be shown by a court depends on the nature of
application and facts and circumstances of the case. For example, courts view delays in
making applications in a pending appeal more leniently than delays in the institution of an
appeal. The courts view applications relating to lawyers lapses more leniently than
applications relating to litigants lapses. The classic example is the difference in approach
of courts to applications for condonation of delay in filing an appeal and applications for
condonation of delay in re-filing the appeal after rectification of defects.
(v) Want of diligence or inaction can be attributed to an appellant only when
something required to be done by him, is not done. When nothing is required to be done,
courts do not expect the appellant to be diligent. Where an appeal is admitted by the High
Court and is not expected to be listed for final hearing for a few years, an appellant is not
expected to visit the court or his lawyer every few weeks to ascertain the position nor keep
checking whether the contesting respondent is alive. He merely awaits the call or
information from his counsel about the listing of the appeal.
We may also notice here that this judgment had been followed with approval by an equibench of this Court in the case of Katari Suryanarayana v. Koppisetti Subbarao24
Above are the principles which should control the exercise of judicial discretion vested in the
Court under these provisions. The explained delay should be clearly understood in

24

AIR 2009 SC 2907

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contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which
has to be considered by the Court. In addition to this, the Court must also take into account
the conduct of the parties, bona fide reasons for condonation of delay and whether such delay
could easily be avoided by the applicant acting with normal care and caution. The statutory
provisions mandate that applications for condonation of delay and applications belatedly filed
beyond the prescribed period of limitation for bringing the legal representatives on record,
should be rejected unless sufficient cause is shown for condonation of delay. The larger
benches as well as equi-benches of this Court have consistently followed these principles and
have either allowed or declined to condone the delay in filing such applications. Thus, it is
the requirement of law that these applications cannot be allowed as a matter of right and even
in a routine manner. An applicant must essentially satisfy the above stated ingredients; then
alone the Court would be inclined to condone the delay in the filing of such applications.
Reply:
1. Engrossment in marriage:
In Rupeshwar saikin v. Aniram Saikia it was held that engrossment in marriage
cannot be allowed as condonation of delay. But later on in cases like Shakuntala v.
Kuntal, Model Milo v. Hiralal and Ramlal v. Rewa coal field it was held that
condonation is not a matter of right, it has to satisfy the tests i.e. Sufficiency of cause.

2. Miscalculation by the clerk of the Counsel

Section 5 of the Limitation Act, 1963 is an exception to general Law of Limitation.
Section 5 is a matter of discretion of the Court. Sufficiency of cause is pivotal.
Miscalculation by the clerk of Counsel can be condoned if there was a bonafide
mistake on part of counsel then the bonafide mistake is a sufficient cause for
condonation of delay.

3. Rampant Poverty
Many a times this question arose whether the rampant poverty the grinding poverty
can be considered as condonation for delay in filing the case. Cases like Mashallah v.
Mehmadullah and Hussaini Begum v. Collector of Muzaffarnagar was seen and it was
found that answer in Indian Judicial system is No, it cannot be. Grinding poverty
cannot be considered as a ground for condonation of delay.

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4. Illiterate Pardanashin Women

Well this may differ from case to case even if a woman is pardanasheen as well as an
illiterate she may ask a literate person to read the contents of a letter to her. If due to
some reason she is unable to avail this facility then she may show a sufficient cause
for condonation of delay and if proved that she does have a sufficient cause then such
delay in filing the suit can be condoned.

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TUTORIAL 10: Do you perceive that Government should be granted

indulgence keeping in view its peculiar methodology of functioning
especially in a country like India. Discuss.
Answer:
Introduction:Article 14 of the Constitution of India guarantees equality before the law and equal protection
of law. The doctrine of equality, hence, has to be applied by courts to all litigants equally and
uniformly. Governmental agencies cannot claim special privilege and must be treated on par
with private parties.
But realities of life also should be kept in view by courts. Certain amount of latitude,
therefore, is not impermissible. If appeals or applications brought by State are dismissed only
on the ground of delay without entering into merits, ultimate sufferer would be public at
large. The expression sufficient cause should, therefore, be considered keeping in view
rational , pragmatic and justice oriented approach.
It has, however, also been held that State and public authorities should not resist or contest
just and honest claims of citizens on technical pleas like law of limitation, notice, etc.
Section 5 of the Limitation Act, 1963.
In respect of appeals and applications, however, the Limitation Act, 1963 provides for
extension of time and condonation of delay in filing appeals and applications (S.5). It
provides that where the appellant or applicant satisfies the Court that he had a sufficient
cause for not preferring appeal or making application, the Court may condone delay and
hear the case on merits.
Section 5 of the Limitation Act, 1963 enables the court to condone delay in filing appeal or
application, if the appellant and applicant satisfies the Court that he had sufficient cause for
not preferring an appeal or making an application within such period.
Doctrine of even handed justice
Justice should be dispensed in such a way that it seems dispensation is fair and even enough.
Functioning of Government is different from the individuals. A State/Government has
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restricted hours of functioning unlike an individual who can knock at the door of the Court
any time he wants. In order to provide even handed justice no lexity should be given to the
government vis--vis private party.
Inherited Colonial Bureaucratic Methodology/ Passing the Buck Culture
This is the reason why delay takes place. File cannot go to the Highest officer directly for
approval. If the government is able to prove due to bureaucratic methodology appeal could
not be filed on time then it is a justifiable reason for condonation.
Reply:In cases like Union of India v. Ram Krishna, State of West Bengal v. Howrah Municipality
and Collector v. Katiji it was held that no special concession should be given to the
Government and there has to be no distinction between private party and the Government.
No distinction, but keeping in view the Inherited Colonial Bureaucratic Mehodology and
Passing the Buck Culture discussed above some sort of indulgence be granted.

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