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CODE OF CIVIL PROCEDURE END-TERM NOTES1. INSTITUTION OF SUITS -ORDER 1 Suit= a proceeding initiated by a person or persons against an other Essentials of a suit “ Opposing parties Subject matter in dispute Cause of action Relief Plaint - a private memorial tendered to a court in which the person set...

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Page 1  of 25  CODE OF CIVIL PROCEDURE END-TERM NOTES 1. INSTITUTION OF SUITS -ORDER 1 • • • • • • • • • • • • • • • • • • • • • • • • • •

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Suit= a proceeding initiated by a person or persons against an other Essentials of a suit “ Opposing parties Subject matter in dispute Cause of action Relief Plaint - a private memorial tendered to a court in which the person sets forth his cause of action, the exhibition of an action in writing Joinder of parties- question of joinder of parties arises only when an act is done by two or more individuals or it effects more than one individual ORDER 1 -PARTIES TO SUITS ORDER 1 RULE 1 - Joinder of plaintiffs right to relief against each plaintiff arises out of the same act Common question if law if separate suits were bought Both the conditions are required to be fulfilled ORDER 1 RULE 3 -JOINDER OF DEFENDANTS Common question if law if separate suits were bought Both the conditions are required to be fulfilled Object of rule 3 - to avoid multiplicity of suits and needless expenses Necessary and proper parties - indispensable to the suit, against whom the relief is sought and without whom- no effective order can be passed Proper parties - suit can be passed without them- example grandson in suit of father son partition ORDER 1 RULE 9 - Non joinder When required party has not been added to the suit or if added contravening provisions of rule 1 and 3 - case of mis joinder of parties RULE 13 - OBJECTIONS TO NON JOINDER OR MIS JOINDER Such objections should be brought at the earliest state or else deemed to have been waived If defendant takes this argument and plaintiff declines to add the necessary party - plaintiff cannot subsequently add in appeal to rectify the error by applying for an amendment RULE 10- STRIKING OUT, ADDING, OR SUBSTITUTING PLAINTIFFS After filing the suit, the plaintiff realises that he cannot get the relief without joining some other person or another person apart from the plaintiff is entitled to relief, an application can be made addition or substitution of the plaintiff . 3 Sub Conditions Suit has been filed in the name of a wrong person as a plaintiff Bona fide mistake The substitution or addition is necessary to determine the real controversy or dispute between the parties Sub rule 2 of 10 Wide discretion on court to meet with every case of defect of parties and is not affected by the inaction of the plaintiff to bring the necessary parties on record Power and duty of court Court to add party if required for determining disputes between the parties even irrespective of the wishes of the plaintiff OBJECT: The dispute is determined in the presence of all those party to the case TEST: Required for complete and full adjudication of the dispute TRANSPOSITION OF PARTIES- Transportation from defendant to plaintiffs Plaintiff is dominos litus - can choose his adversary - from whom he wants to seek relief - for the same reason court may add, delete, subtract - no person can be joined as a plaintiff without his consent- addition,deletion,substitution,transportation can be made at any stage of the suit irrespective of the law of limitation- court required to have jurisdiction to try the suit Necessary party not joined- suit can be dismissed on that ground alone

Page 2  of 25  • REPRESENTATIVE SUIT: RULE 8 • Number of persons similarly interested in a suit, one or more of them can, with the direction of the court, sue or be sued on behalf of them • OBJECT: To avoid numerous suits being filed for a decision of a common question • In a case where there are a community of members, association or large sections • CONDITIONS • The parties must be numerous • They must have the same interest in the suit • Permission must have been given by the court - cannot grant permission merely on the basis of statements made in the plaint, court should be satisfied community interest exists • Notice to be issued to the parties whom it is proposed to represent in the suit - any decree passed in the suit is binding upon them all • ADDITION OR SUBSTITUTION OF PARTIES • Sub Rule 3 states that any person on whose behalf a suit is filed or defended under sub rule 1 may apply to the court to be added as a party to the suit. • Such an individual is required to show that that the conduct of the suit is not in proper hands and his interests will be seriously affected to his prejudice -in case he is not joined as a party to the suit. • Rule 8 is mandatory in its compliance - suit filed without fulfilling the provisions of rule 8 is not maintainable • RULE 8-A -CONDUCT OF SUIT • Rule 8-A empowers the court to permit a person or body of persons interested in any question of law in issue in any suit to present his or its opinion before the court and to take part in the proceedings in the suit . • The above power is discretionary • RULE 11 - The court may give the conduct of a suit to such person it deems fit • RULE 12 - Provides that the plaintiffs or the defendants may authorise one or more of them to appear,plead or act for them. FRAME OF SUIT - ORDER 2 RULE 1-2- INCLUSION OF SUIT • Every suit must include the whole of he plaintiff claim in respect of the cause of action, and, as far as practicable, all matters in dispute between the parties be disposed of finally • “As far as practicable”- implies that in each case the court will have to see whether it was practicable for the plaintiff so to frame his suit so as to include a cause of action which he had omitted or intentionally relinquished. • OBJECT OF ORDER 2 RULE 2 -Spitting of claims • Defendant should not be tried twice for the same cause • Counteract two evils : Splitting up of claims and remedies • Should be lightly upheld and raised at the earliest opportunity • CONDITIONS -To make the rule applicable • The second suit must be in respect of the same cause of action as that on which the previous suit was based • In respect of that cause of action, the plaintiff was entitled to more than one relief • Therefore, being entitled to more than one relief, the plaintiff without the leave of the court omitted to sue for the relief for which the second suit has been filed. • When there is one entire cause of action, the plaintiff cannot split the cause of action into parts so as to bring separate suits in respect of those parts • ONE OF SEVERAL RELIEFS • The rule applies only in cases wherein, the plaintiff is entitled to more than one relief in respect of the same cause of action and he omits to sue for all such reliefs • EXAMPLE - Where the plaintiff files a suit for damages for breach of contract and omits to claim a portion of damages for which he is entitled, a subsequent suit for such portion is barred

Page 3  of 25  • This rule does not apply when the right of relief in respect of which a subsequent is brought, did not exist at the time of the previous suit, or in the earlier suit the petitioner could not have claimed the relief which he sought in the subsequent suit. • The rule applies only when the leave of court is not obtained- if the commission has been with the permission of the court, the subsequent suit for the same relief in respect of the same cause of action is not barred. • Order 2 Rule 2 applies only to suits and not appeals • RULES 4-5- JOINDER OF CLAIMS • Rule 4 lays down that in a suit for the recover of immovable property, a plaintiff is not entitled, without permission of the court, to join any claim except those stated as under rule 4 • RULES 3,6 - JOINDER OF CAUSES OF ACTION • Rule 3 deals with joinder of causes of action • This rule enables joinder of several causes of action in one suit in certain circumstances, subject to the provisions of the code • Where there is only one plaintiff, and one defendant , the plaintiff is at a liberty to unite in the same suit several causes of action. • This provision must be ready order 1 rule 1 • All the plaintiffs and defendants should be jointly interested in the same suit • RULE 7- OBJECTIONS AS TO MIS JOINDER OF CAUSES OF ACTION • All objections on the ground of mis joinder of causes of action must be taken at the earliest opportunity, otherwise they will be deemed to have been waived. INSTITUTION OF SUIT - ORDER 4 • Section 26 and order 4 provide for institution of suits • Presentation of plaint- Every suit must be instituted by the presentation of a plaint or in such other manner as may be prescribed by the code. • Time and place of presentation- a plaint must be presented to the court o such officer as it appoints in that behalf. • The presentation of a plaint must be on a working day and during office hours • No rule that such presentation must be made either at a particular place or at a particular time • Every plaint must contain necessary particulars • Register of suits - particulars of every suit will be entered in the register of civil suits. • After the plaint is presented, it will be scrutinised by the stamp reporter, in case of defects, they will be removed by the plaintiff or his advocate. • The suit will then be numbered. • Suit against a minor - said to be instituted when a plaint is presented and not when a guardian ad litem is appointed • If a suit is filed against dead person - plaintiff did not know he was dead- takes prompt action when he gets to know - can take remedy against the legal representatives of the deceased defendant. PLEADINGS -ORDER 6 • Rule 1 - defines pleadings • Rule 2 - fundamental principles of pleadings • Rules 3-13 - require the parties to supply necessary particulars • Rules 14-15 - signing and verification of pleadings • Rule 16 - a court to strike out unnecessary pleadings • Rules 17 - 18 • RULE 1 - DEFINITION OF PLEADINGS • A plaintiffs pleading is his plaint- sets out his cause of action with all necessary particulars • Defendants pleading - is his written statement - a defence in which he defendant deals with every material fact alleged by the plaintiff in the plaint and adding new facts which are in his favour and any further legal; objections • In a situation, wherein, the defendants pleads a set off in his written statement, the plaintiff may file his written statement thereto.

Page 4  of 25  • OBJECT OF PLEADINGS :- to ascertain the real dispute between parties, narrow down the area of conflict, to pin point where the two sides differ and to prevent one party from taking the other by surprise and miscarriage of justice • RULE 2 - BASIC RULES OF PLEADINGS • Pleadings should state facts and not law • It is the duty of the parties to state only facts and not law on which they rely upon their claims • It is for the court to apply the law to the facts pleaded • Example - intention is a question of fact and must be pleaded, plea about maintainability of the suit raises a question of law and need not be pleaded. • The facts stated should be material facts • All facts upon which the plaintiff’s cause of action or the defendants defence depends upon those facts which must be proved in order to establish the plaintiffs right to relief claimed or in the defendants defence in the written statement. • Particulars are details of the case , primary facts are pleaded by the party in support of the case set up by it • Facts and not evidence • Pleadings should contain a statement of material facts but the evidence by which those facts are to be proved • Concise form • Pleadings are to be drafted with sufficient brevity and precision • Defendant is at a great disadvantage otherwise - he must know what case he has to meet • Cannot keep guessing what the plaintiff means to convey in its vagueness • Precise, coherent, unambiguous and specific • A party cannot be allowed to keep his options open until the trial and adduce such evidence as seems convenient and handy • RULES- 4 -18 - OTHER RULES • RULE 4 -Misrepresentation,fraud, etc stated in pleading - particulars of date and time should be stated • RULE 6 -Performance of condition precedent-implied-need not be pleaded - non performance to be pleaded • RULE 7- Departure from pleading only by way of amendment- no ground or fact raised can be inconsistent with the previous pleading • Alternative implies means one or the other two things - it conveys choice • A party in his peaking can include two sets of facts and claim relief in the alternative • Alternative please allowed to prevent another litigation and determine the entire dispute in one litigation • Inconsistent implies contradictory • A party make make inconsistent pleadings and rely on several different inconsistent rights but should be maintainable by law and should not delay or embers the trial • When a party has taken up a definite stand once and the court has given a decision on that footing,he cannot be allowed to take an inconsistent position with regard to the same matter • RULE 8 - Denial of contract by the opposite party - considered as denial of fact of the contract • RULE 9 - Documents are not be set out at length in the pleadings unless the words therein are material • RULE 10 - Circumstances of malice, fraudulent intention , or condition of a mind of person should not be sent out - only facts - circumstances are the evidence in proof of material facts • RULE 11 - When notice is to be given , pleading to only state the requirement of giving a notice form of notice not required to be given • RULE 12 - Implied contracts to be considered as facts and things can be pleaded • RULE 13 - Facts that need not be pleaded • RULE 14- Every pleading should be signed by a party or his pleader • RULE 14-A - Party to suit should provide his address and that of the opposite party • RULE 15- Every pleading should be verified on affidavit by the party or by one of the parties or by a person acquainted with the facts of the case • Forms of pleadings- Should conform with the forms In Appendix A

Page 5  of 25  • RULES 14-15- SIGNING AND VERIFICATION OF PLEADINGS • Party unable to sign pleading, can authorise someone to sign on his behalf • OBJECT:- Fix upon the party verifying or on whose behalf the verification is made, the responsibility for the statement that it contains and also to prevent as far as possible disputes as to whether the suit was instituted or defended with the knowledge or authority of the party who has signed the verification or on whose behalf it has been signed • CONSTRUCTION OF PLEADINGS • Pleadings ought to be interpreted liberally and regard must be had to the substance of the matter than the form thereof • Pleadings have to be read out as a whole - paragraphs cannot be cut out and read out of context in isolation • The above is to aid a free trip and for reaching a just decision • RULE 16 - STRIKING OUT PLEADINGS • In the following cases: • The pleading is unnecessary, scandalous , frivolous or vexatious • The pleading tends to delay, prejudice or embarrass a fair trial of the suit • VARIANCE BETWEEN PLEADING AND PROOF • It is a well settled that a party can be permitted to adduce evidence on the basis of the case pleaded by him in his pleading and he cannot set up a case inconsistent with his pleading • This is for two reasons: • To appraise the opposite party, distinctly and specifically, of the case he is called upon to answer, so that he may properly prepare his defence and may not be taken by surprise • To maintain an accurate record of the cause of action as a protection against a second or subsequent proceeding founded upon the same allegations • A party can only succeed on the basis of what he has pleaded and proved • He cannot succeed on a case not set up by him • He is not permitted to change his case at the stage of trial if it is inconsistent with his pleadings • RULES 17-18 - AMENDMENT OF PLEADINGS • Party may find it necessary to amend his pleadings before or during the trial of the case • OBJECT: To determine the real question in dispute in controversy between the parties, even if the court believes that the party seeking the amendment, will not be able to prove the amended plea, provided it does not cause injustice or prejudice to the other side • Bona fide, legitimate , honest and necessary amendments to be allowed in the interest of complete justice • Cause of action should not be substituted for another • Subject matter cannot change by way of an amendment • Wide discretion given to court to allow either party to alter or ament his pleading at any stage of the proceeding- Rule 17 not exhaustive - if Rule 17 is not applicable - Section 151 of the code may apply . • WHEN AMENDMENT REFUSED:• Application to amend will be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defence. • Application to amend will also be rejected where the amendment proposed has the effect of taking away from the other side, a legal right resulting in his favour • SUBSEQUENT EVENTS • As a general rule, every litigation must be determined on the basis of facts that existed on the date of filing of the suit • A court may however take into account subsequent events in order to shorten litigation or to preserve, protect and safeguard rights of both the parties and to subserve the ends of justice • Trial Court may grant an application for amendment • NOTICE TO OPPOSITE PARTY • When an application for amendment is made by a party to a suit, an opportunity should be given to the other side to file an obligation against such a prayer . • An order granting amendment without hearing the opposite party is not legal and valid • If the amendment is of a formal and technical nature - non issue of notice is not significant

Page 6  of 25  • Once the plaint has been amended, notice of amendment plaint must be served on the defendant • OTHER PRINCIPLES • Amendment of a claim or relief barred by time should not be allowed • The delay in filing petitions should be properly compensated for by costs • Errors and mistakes , not of a fraudulent nature should not be made as a ground for rejecting the application for amendments of pleadings • Leave to amend, may be granted at any stage of the proceedings . • Such amendment applications are not governed by any law of limitation • PROVISO- AMENDMENT AFTER COMMENCEMENT OF TRIAL • No application for amendment should be 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 ( that the amendment is based on) - before the commencement of trial • In certain circumstances, the court may order that the amendment would take effect from the date an application was made or the amendment was allowed and not from the date when the plaint or written statement was presented • No period of limitation prescribed in the code for making an application for an amendment • Rule of res judicature does not apply to amendments of pleadings • SUCCESIVE APPLICATION • Once an application for amendment is rejected on merits, a second application on the same allegations is not maintainable, although in a case of changed circumstances, another application for amendment may be filed provided no prejudice is caused to the other side • ON SUCH TERMS AS MAY JUST • Amendments will be allowed on payment of reasonable and not impeccable costs to the opposite party by the party amending his pleadings • APPEAL • An order allowing or disallowing application, however may be attacked in an appeal from a decree • REVISION • Since it is the discretion of the court to allow an amendment, while exercising powers under section 115 of the code, generally the high court will not interfere with the exercise of discretion by the trial court. • RULE 18 -FAILURE TO AMEND • If a party who has obtained an order for application of an amend, does not amend accordingly within the time specified for that purpose inn the order or if no time is specified then, within 14 days from the date of the order, he shall not be permitted to amend after expiry of the specified time or of 14 days unless the time is extended by the court . PLAINT AND WRITTEN STATEMENT - ORDER 7 • Rules 1-8 - Particulars of the plaint • Rule 9 - procedure on plaint being admitted • Rules 10 -10B — return of plaint and appearance of parties • Rules 14 -17 - production of documents • Order 7 should be read with section 26 of the code • Order 5 - summons to the defendants • Order 8- law relating to a writte...