Sample – CPC

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SAMPLE:   CIVIL     PROCEDURE     CODE     [Sections 1-25]

Section 1

  • This Act Shall come into force
    • on the first day of January 1909

Section 2                     Definitions

(1)        ” Code ” includes rules

(2)

  • ” decree ” means the formal expression of an adjudication
    • which, so far as regards the Court expressing it
    • conclusively determines the rights of parties
    • with regard to all or any of the matters in controversy in the suit
  • and may be either preliminary or final
  • It shall be deemed to include
    • rejection of a plaint
    • determination of any question u/s 144
  • but shall not include
    • any adjudication from which an appeal lies as an appeal from an order or
    • any order of dismissal for default

Explanation

  • A decree is preliminary
    • when further proceedings have to be taken
    • before the suit can be completely disposed of
  • It is final
    • when such adjudication completely disposes of the suit

(3)

  • ” decree-holder” means
    • any person in whose favor a decree has been passed
    • or an order capable of execution has been made

(10)

  • ” judgment-debtor ” means
    • any person against whom a decree has been passed
    • or an order capable of execution has been made

(11)

  • ” legal representative ” means
    • a person who in law represents the estate of a deceased person
    • and includes any person who intermeddles with the estate of the deceased

(12)

  • ” mesne profits ” of property means
  • those profits which the person in wrongful possession of such property
    • actually received
    • or might with ordinary diligence have received therefrom,
  • together with interest on such profits
  • but shall not include profits due to improvements
    • made by the person in wrongful possession

(13)

  • “movable property” includes
    • growing crops

(14)

  • ” order ” means
    • formal expression of any decision of a Civil Court
    • which is not a decree

(15)

  • “pleader” means
    • any person entitled to appear and plead for another in Court
    • and includes an advocate, a vakil and an attorney of a High Court

(18)

  • ” rules ” means rules and forms contained in First Schedule
    • or made under section 122 or 125

Section 3                     Subordination of Courts

  • District Court is subordinate to High Court
  • Every Civil Court of a grade inferior to that of a District Court
    • is subordinate to High Court and District Court

Section 6                     Pecuniary jurisdiction

  • Except where expressly provided
  • No Court shall have jurisdiction over suits
    • amount or value of the subject-matter of which
    • exceeds pecuniary limits of its ordinary jurisdiction

                                               

  PART   I                      SUITS   IN   GENERAL

Section 9                     Courts to try all civil suits unless barred

  • Courts shall have jurisdiction to try all suits of a civil nature
    • except suits whose cognizance is either expressly or impliedly barred

Explanation

  • A suit in which right to property or to an office is contested
    • is a suit of a civil nature
    • even when such right depends entirely on religious rites or ceremonies

Analysis  of  section  9

Normal rule and burden of proof

  • It is sell settled that the court would normally lean in favour of construction which would uphold retention of jurisdiction of the civil court.
  • The burden of proof in this behalf shall lie on the party who asserts that the civil court’s jurisdiction is ousted.
  • Source: Dwarka Prasad Aggarwal v. Ramesh Chandra Aggarwal  [2003  SC]

How can jurisdiction of Civil Courts be excluded?

  • It is settled law that exclusion of jurisdiction of Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied.
  • Source:  Secretary of State v. Mask  [1940 PC]

Question

  • Which law is to be applied for determining jurisdiction of court, existing law on the date of institution of suit or on the date on which the suit comes up for hearing ?

Ans

  • If court has jurisdiction to try the suit when it comes for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date of institution of suit question.
  • Source: Sudhir Angur v. M Sanjeev  [2006  SC]

Basis for determining jurisdiction?

  • The question of jurisdiction is to be determined primarily on the averments made in the plaint.
  • Source:  Ramesh Chand v. Anil Panjwani  [2003  SC]

 

Illustration of cases where jurisdiction of a civil court is ousted:

Case 1:  Industrial disputes

  • The appropriate forum for resolution of an industrial dispute is the forum constituted under the Industrial Disputes Act 1947. Jurisdiction of civil court is impliedly barred in such cases.
  • Source:  CT Nikam v. Municipal Corporation of Ahmedabad  [2002  SC]

Case 2:  Disputes under Tenancy Acts

Question

Where in a suit for specific performance an issue arises whether the plaintiff is an agriculturist or not, would the Civil Court have jurisdiction to decide the issue or the Civil Court would have to refer the issue under S. 85-A of the Tenancy Act to the authority constituted under the Act, viz., the Mamlatdar?

Ans

It may be that jurisdiction may be conferred on the Mamlatdar to decide whether a person is an agriculturist within the meaning of the Tenancy Act but it does not ipso facto oust the jurisdiction of the Civil Court to decide that issue if it arises before it in a civil suit. Unless the Mamlatdar is constituted an exclusive forum to decide the question, conferment of such jurisdiction would not oust the jurisdiction of the Civil Court.

The legislative scheme that emerges from a combined reading of Ss. 70, 85 and 85-A appears to be that when in a civil suit properly brought before the Civil Court an issue arises on rival contentions between the parties which is required to be decided by a competent authority under the Tenancy Act, the Civil Court is statutorily required to stay the suit and refer such issue or issues to such competent authority under the Tenancy Act.

It would thus appear that the jurisdiction of the Civil Court to decide any issue which is required to be decided by any competent authority under the Tenancy Act is totally ousted. By camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, Civil Court cannot arrogate to itself jurisdiction which is statutorily ousted.

Source:  Gundaji   Satwaji   Shinde   v.   Ramchandra   Bhikaji  Joshi    [1979 SC]

llustration of a case where jurisdiction of a civil court is NOT ousted:

Case 3:  Disputes under SRA

In a suit for specific performance the defendant contended that if the contract is enforced it would violate S. 35 of the Tenancy Act in that the plaintiff’s holding after the appointed day would exceed the ceiling and that acquisition in excess of the ceiling is invalid.

The legislature has not declared the transfer or acquisition invalid, for S.84-C provides that the land in excess of the ceiling shall be at the disposal of the Government when an order is made by the Mamlatdar. The invalidity of the acquisition is, therefore, only to the extent to which the holding exceeds the ceiling prescribed by law and involves the consequence that the land shall vest in the Government.

It would thus transpire that after the acquisition is completed, the question may arise whether ceiling has been exceeded and in that event the Mamlatdar in a suo motu inquiry can declare the transfer invalid to the extent the holding exceeds the ceiling.

Thus, jurisdiction of the civil court is not ousted.

Source:  Jambu  Rao  Satappa  v.  Neminath Appayya     [1968 SC]

Distinction between case 2 and case 3:

The distinguishing feature of case 1 is that S. 63 bars purchase of agricultural land by one who is not an agriculturist and, therefore, the disqualification is at the threshold and unless it is crossed the Court cannot decree a suit for specific performance of contract for sale of agricultural land and in order to dispose of the contention which stands in the forefront a reference to the Mamlatdar under Section 70 read with Ss. 85 and 85-A is inevitable.

In case 2, specific performance of the contract can be ordered by the civil court, and thereafter if the ceiling limit is exceeded, the Mamlatdar can take action holding the excess to vest in Govt.

Question:  

Whether jurisdiction can be conferred on a civil court by agreement?

Ans:

  • By agreement the parties cannot confer jurisdiction where none exists on a court to which the Code applies. But this principle does not apply when the parties agree to submit to the jurisdiction of a foreign court.
  • Source:  Modi Entertainemnt Network v. WSG Cricket  [2003  SC]

 

Section 10                   Stay of suit

  • No Court shall proceed with the trial of any suit
    • in which the matter in issue is also directly and substantially in issue
    • in a previously instituted suit between the same parties or between parties under whom they claim
  • where such suit is pending
    • in the same or any other Court in India
    • or before the Supreme Court

Explanation

  • Pendency of a suit in a foreign Court
    • does not preclude Courts in India
    • from trying a suit founded on the same cause of action

Analysis of section 10

Fundamental test for applicability of section 10

  • The fundamental test to attract section 10 is whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in a case where the whole of the subject matter in both the suits is identical.
  • The words “directly and substantially in issue” are used in contra-distinction to “incidentally or collaterally in issue”. Therefore section 10 would apply only if there is identity of the matter in issue in both the suits.
  • Source:  National Institute of Mental Health v. C Parameshwara  [2005  SC]

Scope and interpretation of word “trial” in section 10

According to Webster Comprehensive Dictionary, trial means the examination, before a tribunal having assigned jurisdiction, of the facts or law involved in an issue in order to determine that issue. Thus in its widest sense it would include all the proceedings right from the stage of institution of a plaint in a civil case to the stage of final determination by a judgment and decree of the Court.

However, the word “trial” in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision . The object of the prohibition contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue.

Question

Whether the bar to proceed with the trial of subsequently instituted suit, contained in Section 10 of the Code of Civil Procedure, 1908 is applicable to summary suit filed under Order 37 of the Code?

Ans

The word ‘trial’ in Section 10 in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit the ‘trial’ really begins after the Court or the Judge grants leave to the defendant to contest the suit.

Therefore, the Court dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted.

Scope of section 10

  • The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the Court to entertain and deal with the later suit nor does it create any substantive right in the matters.
  • It is not a bar to the institution of a suit.
  • It has been construed by the Courts as not a bar of the passing of interlocutory orders such as an order for consolidation of the later suit with the earlier suit or appointment of a Receiver or an injunction or attachment before judgment.
  • The course of action which the Court has to follow according to Section 10 is not to proceed with the ‘trial’ of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose.

Can a civil court pass an order in contravention of section 10?

  • Section 10 enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity.
  • Where a subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to the court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause harassment to the other side.
  • Source:  Pukhraj Jain v. Gopal Krishna  [2004  SC]

Limitations of section 10

  • The language of section 10 suggests that it is referable to a suit instituted in a civil court and it cannot apply to proceedings of other nature instituted under any other statute.

 

Section 11                   Res judicata

  • No Court shall try any suit
  • in which the matter directly and substantially in issue
    • has been directly and substantially in issue
    • in a former suit between same parties or between parties under whom they claim
    • in a Court competent to try such subsequent suit
  • and has been heard and finally decided by such Court

Explanation I

  • ” former suit ” shall denote a suit
    • which has been decided prior to the suit in question
    • whether or not it was instituted prior thereto

Explanation III

  • The matter must in the former suit have been
    • alleged by one party
    • and either denied or admitted, expressly or impliedly, by the other

Explanation IV

  • Any matter which might and ought to have been made
    • ground of defence or attack in such former suit
  • shall be deemed to have been
    • a matter directly and substantially in issue in such suit

Explanation V

  • Any relief claimed in the plaint
    • which is not expressly granted by the decree
    • shall be deemed to have been refused

Explanation VI

  • Where persons litigate bona fide in respect of a public right
    • or of a private right claimed in common for themselves and others
  • all persons interested in such right
    • shall be deemed to claim under persons so litigating

Explanation VII

  • Provisions of this section shall apply
    • to a proceeding for execution of a decree

Explanation VIII

  • An issue heard and finally decided by a court of limited jurisdiction
    • competent to decide such issue
  • shall operate as res judicata in a subsequent suit
    • notwithstanding that such court of limited jurisdiction
    • was not competent to try such subsequent suit or
    • was not competent to try the suit in which such issue has been subsequently raised

Analysis of section 11

Literal meaning

  • The literal meaning of res is “everything that may form an object of rights and includes an object, subject matter or status” and res judicata literally means “a matter adjudged, a thing judicially decided”.

Principle

  • The principle of estoppel per rem judicatam is a rule of evidence.
  • It is “the broader rule of evidence which prohibits the reassertion of a cause of action”. [Marginson v. Blackburn Borough Council]

This doctrine is based on two theories:

  • finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy and
  • interest of the individual that he should be protected from multiplication of litigation.

Objective

  • It serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action.

Reasoning

  • It is the cause of action which gives rise to an action. A cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment or give rise to another cause of action on the same facts.
  • This is what is known as the general principle of res judicata.

What is constructive res judicata?

  • Res judicata is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.
  • This rule has sometimes been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle.

Scope of section 11

Section 11 of the Code of Civil Procedure relates to suits and former suits, and has, in terms, no direct application to a petition for the issue of a high prerogative writ.

 

Applicability to writs

The general principles of res judicata and constructive res judicata have been acted upon in cases of renewed applications for a writ.

Illustrations

(1)  A writ petition followed by a regular suit

The question:  whether a decision of the High Court on merits on a certain matter after contest, in a writ petition under Article 226, operates as res judicata in a regular suit with respect to the same matter between the same parties?

Ans:  Yes: Gulab Chand Chhotala Parikh v. State of Bombay

Reasoning:  On the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case, by a Court competent to decide it, will operate as res judicata in a subsequent regular suit.

(2)  A writ petition followed by another writ petition

The question:  whether the principle of constructive res judicata was applicable to writ petitions?

Ans:  Yes: Devilal Modi v. Sales Tax Officer Ratlam

Reasoning: If the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy

(3)  A writ petition followed by a regular suit

Question

Whether a new plea not taken in the original writ petition could be taken in a subsequent suit before a civil court?

Ans: No: State  of  U.P.  v.   Nawab  Hussain

Reasoning:  In the writ petition filed in the High Court the plea that by virtue of Article 311(1) of the Constitution he could not be dismissed by the Deputy Inspecor-General of Police as he had been appointed by the Inspecor-General of Police was not raised. Since this was an important plea which was within the knowledge of the party and could well have been taken in the writ petition, but he contended himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against him was mala fide.

It was therefore not permissible for him to challenge his dismissal, in the subsequent suit, on the other ground that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the principle of constructive res judicata.

Conclusions

  • Provisions of Section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit.
  • It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter.
  • The nature of the former proceeding is immaterial.

 

Question

Whether res judicata applies between different stages of the same suit?

Ans

  • The principle applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be reagitated by him at a subsequent stage in the same suit or proceedings.
  • Source:  CV Rajendran v. Mohammed Kunhi  [2002  SC]

Cases where res judicata is not applicable

Case 1

  • A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking a procedural principle.
  • Source:  Sonipat Cooperative Sugar Mills v. Ajit Singh  [2005  SC]

Case 2

  • Dismissal of writ petition and SLP in limine would not operate as res judicata in subsequent suit on same cause of action.

Case 3

  • First writ petition was filed on the ground of apprehended bias. Subsequent second petition was filed on allegations of actual bias. The second petition is not barred by res judicata.
  • Source:  GN Nayak v. Goa University  [2002  SC]

Question:  Whether res judicata binds co-defendants?

Ans:  Yes.

Requirements

  • For a judgment to operate as res judicata between or among co-defendants, it is necessary to establish that (1) there was a conflict of interest between co-defendants; (2) that it was necessary to decide the conflict in order to give the relief which the plaintiff claimed in the suit and (3) that the Court actually decided the question.
  • Source: Iftikhar Ahmed   v.     Syed Meharban Ali  [1974   SC]

Question:  Whether res judicata can bind co-plaintiffs?

Ans:  Yes.

Requirements

  • A previous decision should operate as res judicata between co-plaintiffs if all the above conditions are mutatis mutandis satisfied.
  • Source:  Chandu Lal v. Khalilur Rahman [1950 PC]

 

Section 13                   When foreign judgment not conclusive

  • A foreign judgment shall be conclusive
    • as to any matter thereby directly adjudicated
    • between the same parties or between parties under whom they claim
  • except

(a)

  • where it has not been pronounced by a Court of competent jurisdiction

(b)

  • where it has not been given on merits of the case

(c)

  • where it appears on the face of proceedings
    • to be founded on an incorrect view of international law or
    • a refusal to recognize the law of India in cases in which such law is applicable

(d)

  • where proceedings in which judgment was obtained are opposed to natural justice

(e)

  • where it has been obtained by fraud

(f)

  • where it sustains a claim founded on a breach of any law in force in India

Analysis of section 13

Law laid down by the Supreme Court regarding enforceability of foreign judgments in matters arising out of matrimonial disputes:

Clause (a):  

  • This clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognizes as a court of competent jurisdiction to entertain the matrimonial dispute.
  • Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court.

Clause (b):

  • This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties.
  • The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself to the jurisdiction of the court and contests the claim or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court should not be considered as a decision on merits of the case.

Clause (c):

  • Marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognized by such law, it is a judgment which is in defiance of the Law.

Clause (d):

  • In matters concerning family law such as matrimonial disputes, if the rule of audi alteram partem has any meaning with reference to proceedings in a foreign court, it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself and contest effectively the said proceedings.
  • If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice.

Clause (e):

  •  The fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

Clause (f):   

  • When a foreign judgment is founded on a jurisdiction or on a ground not recognized by the matrimonial under which the parties are married,  such judgment would obviously be in breach of the matrimonial law in force in this country.

Conclusion

  • The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

There are three exceptions to this rule:

  • where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married
  • where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married
  • where the respondent consents to the grant of the relief although jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

 

Section 14                   Presumption as to foreign judgments

  • Court shall presume
    • upon production of any document purporting to be a certified copy of a foreign judgment
    • that such judgment was pronounced by a Court of competent jurisdiction
  • unless the contrary appears on record
    • but such presumption may be displaced
    • by proving want of jurisdiction

 

Section 15                   Court in which suits to be instituted

  • Every suit shall be instituted
    • in Court of the lowest grade competent to try it

Section 16                   Institution of suits

  • Subject to pecuniary or other limitations prescribed by law
  • suits
    • for recovery of immovable property with or without rent or profits
    • for partition of immovable property
    • for foreclosure, sale or redemption of mortgage of or charge upon immovable property
    • for determination of any other right to or interest in immovable property
    • for compensation for wrong to immovable property,
    • for recovery of movable property actually under distraint or attachment,
  • shall be instituted in Court within local limits of whose jurisdiction
    • the property is situate:

Proviso

  • A suit to obtain
    • relief respecting immovable property held by defendant
  • where the relief sought can be entirely obtained through his personal obedience
  • may be instituted
    • either in Court within local limits of whose jurisdiction the property is situate
    • or in Court within local limits of whose jurisdiction
      • defendant actually and voluntarily resides
      • or carries on business or personally works for gain

Section 18(1)               Where local limits of jurisdiction are uncertain

  • Where it is uncertain within jurisdiction of which of two or more Courts
    • an immovable property is situate
  • any one of those Courts may record a statement to that effect
    • and thereupon proceed to entertain and dispose of any suit relating to that property

Section 19                   Wrongs to persons or movables

  • Where a suit is for compensation for wrong
    • done to the person or to movable property:
  • if the wrong was done within local limits of jurisdiction of one Court
    • and defendant resides, or carries on business or personally works for gain
    • within local limits of jurisdiction of another Court
  • suit may be instituted at the option of plaintiff in either of these Courts

Illustrations

  • A, residing in Delhi, beats B in Calcutta
    • B may sue A either in Calcutta or in Delhi
  • A, residing in Delhi, publishes in Calcutta statements defamatory of B
    • B may sue A either in Calcutta or in Delhi

Section 20                   Institution of other suits

  • Subject to the aforesaid:
  • Every suit shall be instituted in a Court within whose jurisdiction..

(a)

  • the defendant
    • or each defendant where there are more than one
  • at the time of commencement of suit
    • actually and voluntarily resides
    • or carries on business
    • or personally works for gain

(b)

  • any of the defendants, where there are more than one
  • at the time of commencement of suit
    • actually and voluntarily resides,
    • or carries on business,
    • or personally works for gain
  • provided that
    • either leave of Court is given
    • or defendants who do not reside or carry on business or personally work for gain as aforesaid
      • acquiesce in such institution

(c)

  • the cause of action, wholly or in part, arises

Explanation

  • A corporation shall be deemed to carry on business
    • at its sole or principal office in India
  • or in respect of any cause of action
  • arising at any place where it also has subordinate office
    • at such place

Illustration (a)

  • A is a tradesman in Calcutta
  • B carries on business in Delhi
    • B, by his agent in Calcutta, buys goods of A
    • and requests A to deliver them to East Indian Railway Company
  • A delivers the goods accordingly in Calcutta
  • A may sue B for the price of goods
    • either in Calcutta, where the cause of action has arisen
    • or in Delhi, where B carries on business

(b)

  • A resides at Simla, B at Calcutta and C at Delhi
    • A, B and C being together at Benares
    • B and C make a joint promissory note payable on demand
    • and deliver it to A
  • A may sue B and C at Benares
    • where the cause of action arose
  • He may also sue them
    • at Calcutta, where B resides
    • or at Delhi where C resides
  • but in each of these cases
    • if the non-resident defendant objects
    • suit cannot proceed without leave of Court

Section 21(1)               Objections to jurisdiction

  • No objection as to place of suing
    • shall be allowed by any Appellate or Revisional Court
  • unless such objection was taken
    • in the Court of first instance at the earliest possible opportunity
    • and in all cases where issues are settled
      • at or before such settlement
  • and unless there has been a consequent failure of justice

Section 21(2)

  • No objection as to competence of a Court with reference to pecuniary limits
    • shall be allowed by any Appellate or Revisional Court
  • unless such objection was taken
    • in the Court of first instance at the earliest possible opportunity
    • and in all cases where issues are settled
      • at or before such settlement
  • and unless there has been a consequent failure of justice

Section 21(3)

  • No objection as to competence of executing  Court
    • shall be allowed by any Appellate or Revisional Court
  • unless such objection was taken
    • in the executing Court at the earliest possible opportunity
  • and unless there has been a consequent failure of justice

Section 21A                 Bar on suit

  • No suit shall lie challenging validity of a decree
    • passed in a former suit between the same parties
    • on a ground based on an objection to place of suing

Section 22                   Power to transfer suits

  • Where a suit may be instituted in any one of two or more Courts
    • and is instituted in one of such Courts
  • any defendant, after notice to other parties, may
    • at the earliest possible opportunity
    • and in cases where issues are settled
      • at or before such settlement
  • apply to have the suit transferred to another Court
  • and the Court to which such application is made
    • after considering objections of other parties, if any
  • shall determine in which of the several Courts having jurisdiction
    • the suit shall proceed

Section 23(1)               To what Court application lies

  • Where the several Courts having jurisdiction
    • are subordinate to the same Appellate Court
    • application u/s 22 shall be made to the Appellate Court

Section 23(2)

  • Where such Courts are subordinate to different Appellate Courts
    • but to same High Court
    • application shall be made to High Court
  • Where such Courts are subordinate to different High Courts
    • application shall be made to the High Court
      • within local limits of whose jurisdiction
      • the Court in which suit is brought is situate

Section 24(1)               General power of transfer and withdrawal

  • On application of any party
    • after notice to the parties and after hearing them
  • or of its own motion
    • without such notice
  • High Court or District Court may at any stage

(a)

  • transfer any suit, appeal or other proceeding pending before it for trial or disposal
    • to any Court subordinate to it
    • and competent to try or dispose of the same or

(b)

  • withdraw any suit, appeal or other proceeding
  • pending in any Court subordinate to it and
    • try or dispose of the same or
    • transfer the same for trial or disposal to any competent Court subordinate to it or
    • re-transfer the same for trial or disposal to the Court from which it was withdrawn

Section 24(2)               Where any suit or proceeding has been so transferred or withdrawn

  • Court which is thereafter to try or dispose of such suit or proceeding may
    • subject to any special directions in case of transfer
  • either retry it
    • or proceed from the point at which it was transferred or withdrawn

Section 24(3)

  • Courts of Additional and Assistant Judges
    • shall be deemed to be subordinate to District Court
  • Proceeding includes
    • a proceeding for execution of a decree or order

Section 25(1)               Power of Supreme Court to transfer suits

  • On application of a party
    • and after notice to parties and after hearing them
  • Supreme Court may, at any stage
    • if satisfied that an order is expedient for ends of justice
  • direct that a suit, appeal or proceeding be transferred
    • from a High Court or other Civil Court in one State
    • to a High Court or other Civil Court in any other State

Section 25(2)

  • Every application under this section
    • shall be made by a motion
    • which shall be supported by an affidavit

Section 25(3)

  • The Court to which such suit, appeal or other proceeding is transferred
    • shall, subject to any special directions in the order of transfer
    • either retry it or proceed from the stage at which it was transferred to it

Section 25(4)

  • In dismissing an application under this section
  • Supreme Court may, if it is of opinion that the application was frivolous or vexatious
    • order applicant to pay by way of compensation
    • to any person who has opposed the application
      • such sum, not exceeding 2000 rupees as it considers appropriate

Section 25(5)

  • Law applicable to any suit, appeal or proceeding transferred
  • shall be the law
    • which the Court in which the suit, appeal or proceeding was originally instituted
    • ought to have applied to such suit, appeal or proceeding

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CASE   LAW   ON    SECTIONS   1-25   CPC

1.    Gundaji   Satwaji   Shinde      v.      Ramchandra   Bhikaji  Joshi    [1979 SC]

2.    Jambu  Rao  Satappa              v.      Neminath Appayya                   [1968 SC]

3.    Indian Bank                 v.                Maharashtra Co-Op. Marketing Federation    [1998 SC]

4.    State of U.P.                 v.                 Nawab Hussain                             [1977  SC]

5.    Devilal Modi                 v.               Sales Tax Officer Ratlam              [1965   SC]

6.    GulabChand Parikh    v.                State of Bombay                             [1964   SC]

7.    Iftikhar Ahmed            v.                Syed Meharban Ali                        [1974  SC]

8.   Narasimha  Rao           v.                Y.  Venkata  Lakshmi                     [1991  SC]

**** All judgments have been summarized by DLA ****

 

Case Law on section 9

            Gundaji   Satwaji   Shinde      v.      Ramchandra   Bhikaji  Joshi    [1979 SC]
[A case where jurisdiction of civil court is ousted]

Plaintiff claimed specific performance of a contract dated 15th December 1965 for sale of agricultural land. This suit was resisted by the defendant contending that the land which was subject matter of the contract was covered by the Bombay Tenancy and Agricultural Lands Act, 1948 and as the intending purchaser, the plaintiff, was not an agriculturist within the meaning of the Act, S. 63 of the Tenancy Act prohibited him from purchasing the land and, therefore, as the agreement was contrary to the provisions of the Tenancy Act the same cannot be specifically enforced.

On the question of the plaintiff being an agriculturist, the trial Court itself recorded a finding that the plaintiff was not an agriculturist.

On the question of jurisdiction to decide the issue whether the plaintiff is an agriculturist, the trial Court was of the opinion that it being an incidental issue in a suit for specific performance of contract, which suit the Civil Court has jurisdiction to try, it will also have jurisdiction to decide the incidental or subsidiary issue and recorded a finding that the plaintiff was not an agriculturist.

Section 2(2) of the Tenancy Act defines agriculturist to mean a person who cultivates land personally. The expression ‘land’ is defined in S. 2(8) to mean: (a) land which is used for agricultural purposes or which is so used but is left fallow.

Section 63 which forbids transfer of agricultural land to non-agriculturists, reads as under:

No sale…. of any land….. shall be valid in favour of a person who is not an             agriculturist…..

Section 70 says one of the  duties and functions to be performed by the Mamlatdar shall be:

(a) to decide whether a person is an agriculturist…..

Section 85 bars jurisdiction of Civil Courts to decide certain issues and S. 85-A provides for reference of issues required to be decided under the Tenancy Act to the competent authority set up under the Tenancy Act.

Section 85

  • No Civil Court shall have jurisdiction to decide any Question…. which is under this Act required to be decided by the Mamlatdar….
  • No order of the Mamlatdar…. made under this Act shall be questioned in any Civil or Criminal Court.

Section 85-A:

(1) If any suit instituted in any Civil Court involves any issues which are required to be decided by any authority competent to decide such issues under this Act, the Civil Court shall stay the suit and refer such issues to such competent authority for determination.

(2) On receipt of such reference from Civil Court, the competent authority shall decide such issues and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

There is no controversy that the land purported to be sold by the contract for sale is the land used for agricultural purposes.

The plaintiff thus, by the contract for sale, purports to purchase agricultural land. Section 63 prohibits sale of land in favour of a person who is not an agriculturist. If, therefore, the plaintiff wants to enforce a contract for sale of agricultural land in his favour he has of necessity to be an agriculturist.

The defendant intending vendor has specifically contended that the plaintiff not being an agriculturist he is not entitled to specific performance of the contract. Therefore, in a suit filed by the plaintiff for specific performance of contract, on rival contentions a specific issue would arise whether the plaintiff is an agriculturist because if he is not, the Civil Court would be precluded from enforcing the contract as it would be in violation of a statutory prohibition and the contract would be unenforceable as being prohibited by law and, therefore, opposed to public policy.

The Question

The focal point of controversy is where in a suit for specific performance an issue arises whether the plaintiff is an agriculturist or not, would the Civil Court have jurisdiction to decide the issue or the Civil Court would have to refer the issue under S. 85-A of the Tenancy Act to the authority constituted under the Act, viz., Mamlatdar.

Section 70(a) constitutes the Mamlatdar a forum……to decide whether a person is an agriculturist. The issue arising before the Civil Court is whether the plaintiff is an agriculturist within the meaning of the Tenancy Act. It may be that jurisdiction may be conferred on the Mamlatdar to decide whether a person is an agriculturist within the meaning of the Tenancy Act but it does not ipso facto oust the jurisdiction of the Civil Court to decide that issue if it arises before it in a civil suit. Unless the Mamlatdar is constituted an exclusive forum to decide the question, conferment of such jurisdiction would not oust the jurisdiction of the Civil Court.

It is settled law that exclusion of jurisdiction of Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied [Secretary of State v. Mask, 1940 PC]. However, by an express provision contained in S. 85, jurisdiction of the Civil Court to decide any question which is under the Tenancy Act required to be decided by the competent authority is ousted. There is, therefore, no escape from the fact that the legislature has expressly ousted the jurisdiction of the Civil Court to decide any question which is by or under the Tenancy Act required to be decided by any of the authorities therein mentioned and in this specific case the authority would be the Mamlatdar.

The legislative scheme that emerges from a combined reading of Ss. 70, 85 and 85-A appears to be that when in a civil suit properly brought before the Civil Court an issue arises on rival contentions between the parties which is required to be settled, decided or dealt with by a competent authority under the Tenancy Act, the Civil Court is statutorily required to stay the suit and refer such issue or issues to such competent authority under the Tenancy Act for determination.

It would thus appear that the jurisdiction of the Civil Court to settle, decide or deal with any issue which is required to be settled, decided or dealt with by any competent authority under the Tenancy Act is totally ousted.

Section 70(a) requires the Mamlatdar to decide whether a person is an agriculturist. Therefore, if an issue arises in a Civil Court whether a person is an agriculturist within the meaning of the Tenancy Act, the Mamlatdar alone would have exclusive jurisdiction under the Tenancy Act to decide the same and the jurisdiction of the Civil Court is ousted. To translate it into action, if the Mamlatdar were to hold that the plaintiff is not an agriculturist, obviously his suit for specific performance in the Civil Court would fail because he is ineligible to purchase agricultural land and enforcement of such a contract would be violative of statute and, therefore, opposed to public policy.

Neither the Contract Act nor the Transfer of Property Act nor any other statute except the Tenancy Act prohibits a non-agriculturist from buying agricultural land. The prohibition was enacted in S. 63 of the Tenancy Act. Therefore, if a person intending to purchase agricultural land files a suit for enforcing a contract entered into by him and if the suit is resisted on the ground that the plaintiff is ineligible to buy agricultural land, not for any other reason except that it is prohibited by S. 63 of the Tenancy Act, an issue whether plaintiff is an agriculturist would directly and substantially arise in view of the provisions of the Tenancy Act.

Such an issue would indisputably arise under the Tenancy Act though not in a proceeding under the Tenancy Act. Now, if S. 85 bars the jurisdiction of the Civil Court to decide or deal with an issue arising under the Tenancy Act and if S. 85-A imposes an obligation on the Civil Court to refer such issue to the competent authority under the Tenancy Act, it would be no answer to the provisions to say that the issue is an incidental issue in a properly constituted civil suit before a Civil Court having jurisdiction to entertain the same.

This can be clearly demonstrated by an illustration. Plaintiff may file a suit on title against a defendant for possession of land on the allegation that defendant is a trespasser. The defendant may appear and contend that the land is agricultural land and he is a tenant. The suit on title for possession is clearly within the jurisdiction of the Civil Court. Therefore, the Civil Court would be competent to entertain the suit. But upon the defendant’s contest the issue would be whether he is a tenant of agricultural land. Sec. 70(a)(ii) read with Ss. 85 and 85-A would preclude the Civil Court from dealing with or deciding the issue.

Ss. 85 and 85-A oust jurisdiction of Civil Court not in respect of civil suit but in respect of questions and issues arising therein and S. 85-A mandates the reference of such issues as are within the competence of the competent authority. By such camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, Civil Court cannot arrogate to itself jurisdiction which is statutorily ousted. This unassailable legal position emerges from the relevant provisions of the Tenancy Act.

The ratio of the decision is that a contention raised by the defendant may have the necessary effect to oust the jurisdiction of the Civil Court in respect of the contention which is to be disposed of before the suit can be disposed of one way or the other.

Distinction between this case and Jambu  Rao  Satappa case:

The distinguishing feature of the present case is that S. 63 bars purchase of agricultural land by one who is not an agriculturist and, therefore, the disqualification is at the threshold and unless it is crossed the Court cannot decree a suit for specific performance of contract for sale of agricultural land and in order to dispose of the contention which stands in the forefront a reference to the Mamlatdar under Section 70 read with Ss. 85 and 85-A is inevitable.

* * * * *

 

Case Law on section 9

                Jambu  Rao  Satappa    v.    Neminath Appayya     [1968 SC]
[A case where jurisdiction of civil court is not ousted]

A brief resume of facts

In a suit for specific performance the defendant contended that if the contract is enforced it would violate S. 35 of the Tenancy Act in that the plaintiff’s holding after the appointed day would exceed the ceiling and the acquisition in excess of the ceiling is invalid.

A contention appears to have been raised that the question whether an acquisition in excess of the ceiling would be invalid would be within the exclusive jurisdiction of the Mamlatdar under S. 70 (mb) and that the Civil Court cannot decide or deal with this question and a reference ought to have been made to the Mamlatdar.

Decision

The Civil Court had jurisdiction to entertain and decree a suit for specific performance of agreement to sell land. If upon the sale being completed it would violate some provision of the Tenancy Act an enquiry has to be made under S. 84-C and S. 84-C provides that if an acquisition of any land is or becomes invalid under any of the provisions of the Tenancy Act, the Mamlatdar may suo motu inquire into the question and decide whether the transfer of acquisition is or is not valid.

This inquiry has to be made after the acquisition of title pursuant to a decree for specific performance.

Even though Civil Court has no jurisdiction to determine whether the acquisition would become invalid but there is nothing in S. 70 or any other provision of the Act which excludes the Civil Court’s jurisdiction to decree specific performance of a contract to transfer land which would be anterior to the acquisition.

The transfer may not be invalid at all because the purchaser may have already disposed of his prior holding. When the scheme of the Act is examined it becomes clear that the legislature has not declared the transfer or acquisition invalid, for S.84-C provides that the land in excess of the ceiling shall be at the disposal of the Government when an order is made by the Mamlatdar. The invalidity of the acquisition is, therefore, only to the extent to which the holding exceeds the ceiling prescribed by law and involves the consequence that the land shall vest in the Government.

It would thus transpire that after the acquisition is completed, the question may arise whether ceiling has been exceeded and in that event the Mamlatdar in a suo motu inquiry can declare the transfer invalid to the extent the holding exceeds the ceiling.

*********

 

Case Law on section 10

            Indian Bank        v.          Maharashtra State Co-Op. Marketing Federation     [1998 SC]

The question which arises for consideration in these appeals is whether the bar to proceed with the trial of subsequently instituted suit, contained in Section 10 of the Code of Civil Procedure, 1908 is applicable to summary suit filed under Order 37 of the Code.

The respondent Federation applied to the appellant Bank on 5-6-1989 to open an Irrevocable Letter of Credit in favour of M/s. Shankar Rice Mills. Pursuant to that request the Bank opened an Irrevocable Letter of Credit on 6.6.1989. The agreed arrangement was that the documents drawn under the said Letter of Credit when tendered to the appellant Bank were to be forwarded to the Federation for their acceptance and thereafter the Bank had to make payments to M/s. Shankar Rice Mills on behalf of the Federation.

On 6.2.1992 the Bank filed Summary Suit No. 500 of 1992 in the Bombay High Court under Order 37 of the Code against the Federation for obtaining a decree of Rs. 4,96,58,160/- alleging that the said amount has become recoverable under the said Letter of Credit. The Bank took out summons for judgment. The Federation appeared before the Court and took out Notice of Motion seeking stay of the summary suit on the ground that it has already instituted a suit being Suit No. 400 of 1992 against the Bank for recovery of Rs. 3,70,52,217 prior to the filing of the summary suit.

A learned Single Judge of the Bombay High Court, who heard the summons for judgment and the Notice of Motion, held that the concept of trial is contained in Section 10 of the Code is applicable only to a regular/ordinary suit and not to a summary suit filed under Order 37 of the Code and, therefore, further proceedings under Summary Suit No. 500 of 1992 were not required to be stayed. The learned Judge was also of the view that there was no merit in the defence raised by the Federation. He, therefore, granted leave to the Federation to defend the suit conditionally upon the Federation depositing Rs. 4 crores in the Court. The summons for judgment was disposed of accordingly and the Notice of Motion was dismissed.

Aggrieved by the order of the learned Single Judge in summons for judgment the Federation filed Appeal before the Division Bench of the High Court; and against the order passed on Notice of Motion it preferred Appeal. The Division Bench was of the view that the word “trial” in Section 10 has not been used in a narrow sense and would mean entire proceedings after the defendant enters his appearance, held that Section 10 of the Code applies to a summary suit also. It also held that the summary suit filed by the Bank being a subsequently instituted suit was required to be stayed. It allowed both the appeals, set aside the orders passed by the learned Single Judge and stayed the summary suit till the disposal of the prior suit filed by the Federation.

Section 10 of the Code prohibits the Court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit provided other conditions mentioned in the section are also satisfied. The word ‘trial’ is no doubt of a very wide import as pointed out by the High Court. In legal parlance it means a judicial examination and determination of the issue in civil or criminal Court by a competent Tribunal. According to Webster Comprehensive Dictionary, it means the examination, before a tribunal having assigned jurisdiction, of the facts or law involved in an issue in order to determine that issue. Thus in its widest sense it would include all the proceedings right from the stage of institution of a plaint in a civil case to the stage of final determination by a judgment and decree of the Court. Whether the widest meaning should be given to the word ‘trial’ or that it should be construed narrowly must necessarily depend upon the nature and object of the provision and the context in which it is used.

Therefore, the word “trial” in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to ‘proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit.’ The object of the prohibition contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the Court to entertain and deal with the later suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the Courts as not a bar of the passing of interlocutory orders such as an order for consolidation of the later suit with the earlier suit, or appointment of a Receiver or an injunction or attachment before judgment. The course of action which the Court has to follow according to Section 10 is not to proceed with the ‘trial’ of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word ‘trial’ in Section 10 is not used in its widest sense.

The provision contained in Section 10 is a general provision applicable to all categories of cases. The provisions contained in Order 37 apply to certain clauses of suits. One provides a bar against proceeding with the trial of a suit, the other provides for granting of quick relief. Both these provisions have to be interpreted harmoniously so that the objects of both are not frustrated. This being the correct approach and as the question that has arisen for consideration in this appeal is whether the bar to proceed with the trial of subsequently instituted suit contained in Section 10 of the Code is applicable to a summary suit filed under Order 37 of the Code, the words ‘trial of any suit’ will have to be construed in the context of the provisions of Order 37 of the Code. Rule 2 of Order 37 enables the plaintiff to institute a summary suit in certain cases. On such a suit being filed the defendant is required to be served with a copy of the plaint and summons in the prescribed form. Within 10 days of service the defendant has to enter an appearance. Within the prescribed time the defendant has to apply for leave to defend the suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to judgment forthwith. If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith. Sub-rule (7) of Order 37 provides that save as provided by that order the procedure in summary suits shall be the same as the procedure in suits instituted in the ordinary manner.

Thus in classes of suits where adopting summary procedure for deciding them is permissible the defendant has to file an appearance within 10 days of the service of summons and apply for leave to defend the suit. If the defendant does not enter his appearance as required or fails to obtain leave the allegations in the plaint are deemed to be admitted and straightaway a decree can be passed in favour of the plaintiff. The stage of determination of the matter in issue will arise in a summary suit only after the defendant obtains leave. The trial would really begin only after leave is granted to the defendant. This clearly appears to be the scheme of summary procedure as provided by Order 37 of the Code.

Considering the objects of both the provisions, i.e. Section 10 and Order 37 wider interpretation of the word “trial” is not called for. We are of the opinion that the word ‘trial’ in Section 10 in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit the ‘trial’ really begins after the Court or the Judge grants leave to the defendant to contest the suit. Therefore, the Court or the Judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted.

We, therefore, allow these appeals, set aside the impugned judgment of the Division Bench of the High Court and restore the order passed by the learned Single Judge.

* * * * *

 

Case Law on section 11

                    State   of   U.P.         v.        Nawab   Hussain          [1977   SC]

Facts of the case

  • Nawab Hussain was a confirmed Sub-Inspector of Police in UP.
  • He was dismissed from service by the Deputy Inspector-General of Police in 1954.
  • He filed an appeal, but it was dismissed in 1956.
  • He then filed a writ petition in Allahabad High Court for quashing the disciplinary proceedings on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and the action taken against him was mala fide. It was dismissed in 1959.
  • He then tiled a suit in the Court of Civil Judge in 1960, in which he challenged the order of his dismissal on the ground that he had been appointed by the Inspector-General of Police and that the DIG was not competent to dismiss him by virtue of the provisions of Article 311(1).
  • State of Uttar Pradesh traversed the claim on the plea that the suit was barred by res judicata as “all the matters in issue in this case had been raised or ought to have been raised both in the writ petition and special appeal”.
  • The trial court dismissed the suit in 1960 but the High Court decreed it in 1968.

 Principle

The rule of Res Judicata

The principle of estoppel per rem judicatam is a rule of evidence. In Marginson v. Blackburn Borough Council, it was said to be “the broader rule of evidence which prohibits the reassertion of a cause of action”.

This doctrine is based on two theories:

  • finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and
  • interest of the individual that he should be protected from multiplication of litigation.

It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action.

It is the cause of action which gives rise to an action. A cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata.

But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation that would aggravate the burden of litigation.

The rule of Constructive Res Judicata [Greenhalgh v. Mallard]:

Res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.

This rule has sometimes been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle.

These simple but efficacious rules of evidence have culminated in the present Section 11 of the Code of Civil Procedure, 1908. But it relates to suits and former suits, and has, in terms, no direct application to a petition for the issue of a high prerogative writ. The general principles of res judicata and constructive res judicata have however been acted upon in cases of renewed applications for a writ.

Decision

It is not in controversy before us that the respondent did not raise the plea, in the writ petition which had been filed in the High Court, that by virtue of clause (1) of Article 311 of the Constitution he could not be dismissed by the Deputy Inspecor-General of Police as he had been appointed by the Inspecor-General of Police. It is also not in controversy that that was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contended himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against him was mala fide. It was therefore not permissible for him to challenge his dismissal, in the subsequent suit, on the other ground that he had been dismissed by an authority subordinate to that by which he was appointed. That was clearly barred by the principle of constructive res judicata.

The appeal is allowed, and the impugned judgment of the High Court is set aside.

***********

 

Case Law on section 11

                        Devilal Modi    v.   Sales Tax Officer Ratlam     [1965   SC]

Petitioner in this case was assessed to sales tax and filed a writ petition to challenge the assessment. The petition was dismissed by the High Court and he came in appeal to this Court. He sought to make some additional contentions in this Court, but was not permitted to do so.

He therefore filed another writ petition in the High Court raising those additional contentions and challenged the order of assessment for the same year. The High Court dismissed the petition on merits, and the case came up again to this Court in appeal.

The question which specifically arose for consideration was whether the principle of constructive res judicata was applicable to writ petitions of that kind.

Judgment of the Supreme Court:

This rule [the rule of constructive res judicata] postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred.

*******

 

Case Law on section 11

                Gulab Chand Chhotalal Parikh   v.   State of Bombay     [1964  SC]

This was a case where the question which specifically arose for consideration was whether a decision of the High Court on merits on a certain matter after contest, in a writ petition under Article 226, operates as res judicata in a regular suit with respect to the same matter between the same parties.

Judgment of the Supreme Court:

We are of opinion that the provisions of Section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial.

**********

 

Case Law on section 11

                Iftikhar Ahmed        v.            Syed Meharban Ali          [1974  SC]

In this appeal, by special leave, the question for consideration is whether the High Court of Allahabad was right in setting aside the decree passed by the District Judge, Meerut, in appeal, setting aside an award passed by the arbitrator appointed under the Uttar Pradesh Consolidation of Holdings Act, 1953.

The appellants are the legal representatives of Ishtiaq Ahmed. In the consolidation proceedings under the Act with respect to the properties in question which originally beLonged to Buniyad Ali, dispute arose between Ishtiaq Ahmed on the one hand and Meharban Ali and Kaniz Fatima on the other hand as regards the title to them. Meharban Ali and Kaniz Fatima claimed that they were co-bhumidars of the properties aLong with Ishtiaq Ahmed. Ishtiaq Ahmed contended that all the assets of Buniyad Ali were inherited by his son Aftab Ali and after the death of Aftab Ali in 1910 and his widow in 1925, be became the exclusive owner of the properties as the other heirs had relinquished their rights in them. Ishtiaq Ahmed also claimed title to the properties by adverse possession. As the dispute between the parties was concerned with the title to the properties, the consolidation Officer referred the matter to the Civil Judge, Meerut who referred the same to an arbitrator appointed under the Act. The arbitrator held that Meharban Ali and Kaniz Fatima had no title and so were not co-bhumidars of the properties with Ishtiaq Ahmed. For reaching this conclusion the arbitrator mainly relied on a judgment of the High Court of Allahabad which, according to the arbitrator, operated as res judicata between the parties with respect to the title to the properties.

Both the parties filed objections to the award before the learned II Civil Judge, Meerut. He held that the judgment of the High Court relied on by the arbitrator did not operate as res judicata between the parties as regards the title to the properties and that the decision of the arbitrator, based as it was on that judgment operating as res judicata, was manifestly wrong and the award was consequently vitiated by an error of law apparent on the face of the award. He, therefore, set aside the award and remitted the case to the arbitrator for a fresh decision.

The arbitrator, Mr. B.P. Gupta considered the case. He came to the conclusion on the basis of the oral and documentary evidence, that the parties were co-bhumidars of the properties except in respect of 9 bighas 3 biswas and determined their shares in the properties. The arbitrator was of the view that the judgment of the High Court was not res judicata as regards the title of the parties to the properties. Against this award, Ishtiaq Ahmed filed objections before the II Civil Judge, Meerut. The Civil Judge considered the objections and found that there was no manifest error or illegality in the award and he confirmed the award.

Ishtiaq Ahmed preferred an appeal from this decision before the District Judge. Ishtiaq Ahmed died during the pendency of the appeal and his legal representatives, the present appellants, prosecuted the appeal. The District Judge held that the award suffered from an error of law apparent on the face of the record in that the arbitrator ignored the judgment of the High Court which operated as res judicata as regards the title of the parties to the properties. He, therefore, allowed the appeal and set aside the decree appealed from and remitted the case to the arbitrator for a fresh decision. The respondents filed a revision before the High Court against the decision of the District Judge and the High Court reversed the decision and restored the decree passed by the Civil Judge confirming the award.

Mr. Goel, appearing for the appellants submitted that the High Court went wrong in reversing the decree of the District Judge. He argued that the award was vitiated by an error of law apparent on the face of the record as the award proceeded on the basis that the judgment of the High Court did not operate as res judicata in respect of the title of the parties to the properties, and therefore, the decision of the District Judge setting aside the award was correct.

Now, let us consider the nature of the judgment passed by the High Court and see whether it operated as res judicata in respect of the question of title of the parties to the properties and whether there was any manifest error of law apparent on the face of the award. That judgment related to the properties in dispute and was passed in second appeal from a decree in a suit (Suit No. 600 of 1934) instituted by Meharban Ali, Kaniz Fatima and Ishtiaq Ahmed for a declaration that the decree obtained in O.S. No. 128 of 1929 by Ishari Prasad, the defendant in that suit on the foot of a mortgage deed dated November 5, 1925 executed in his favour by Matlub-un-nissa did not affect the shares of Meharban Ali and Kaniz Fatima in the mortgaged properties and that the mortgage, and the decree obtained thereon were invalid to the extent of their shares in the properties. Ishari Prasad, the defendant in that suit, contended that Matlub-un-nissa, the mortgage alone was entitled to the properties mortgaged and that the decree obtained by him on the mortgage was valid. In substance, the contention of Ishari Prasad was that Meharban Ali and Kaniz Fatima had no title to the properties as the latter and the former’s mother had relinquished their shares and that the title to the properties vested exclusively in the mother of Ishtiaq Ahmed, namely, Matlub-un-nissa. The trial Court passed a decree dismissing the suit holding that Kaniz Fatima and Meharban Ali’s mother relinquished their shares in the properties and that Matlub-un-nissa, the mortgagor, alone was entitled to the properties and, therefore, the mortgage, and the decree based thereon were valid. The plaintiffs in the suit (Suit No. 600 of 1934) preferred an appeal from the decree. That was dismissed. The decree dismissing the appeal was confirmed by the High Court in the second appeal filed by them.

There can be no doubt that by the written statement, Ishari Prasad, the mortgagee, denied the title of Kaniz Fatima and Meharban Ali to the properties and set up the contention that Matlub-un-nissa, the mortgagor, from whom Ishtiaq Ahmed traced his title, alone was entitled to the properties. There was, therefore, an actual conflict of interest between Ishtiaq Ahmed on the one hand and Kaniz Fatima and Meharban Ali on the other, and it was necessary to decide the conflict in order to give relief to the defendant (Ishari Prasad) and the Court decided that the properties beLonged exclusively to the mortgagor, the mother of Ishtiaq Ahmed. The effect of the judgment is that Kaniz Fatima and Meharban Ali failed to establish their contention that they had title to the properties, and, the question is, could they be allowed to agitate the same question?

Now it is settled by a large number of decisions that for a judgment to operate as res judicata between or among co-defendants, it is necessary to establish that (1) there was a conflict of interest between co-defendants; (2) that it was necessary to decide the conflict in order to give the relief which the plaintiff claimed in the suit and (3) that the Court actually decided the question.

In Chandu Lal v. Khalilur Rahman [AIR 1950 PC 17], Lord Simonds said:

It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided.

We see no reason why a previous decision should not operate as res judicata between co-plaintiffs if all these conditions are mutatis mutandis satisfied. In considering any question of res judicata we have to bear in mind the statement of the Board in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh [AIR 1916 PC 78] that the rule of res judicata “while founded on ancient precedent is dictated by a wisdom which is for all time” and that the application of the rule by the Courts “should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law.”

The raison d’etre of the rule is to confer finality on decisions arrived at by competent Courts between interested parties after genuine contest, and to allow persons who had deliberately chosen a position to reprobate it and to blow hot now when they were blowing cold before would be completely to ignore the whole foundation of the rule.

[Ram Bhaj v. Ahmed Said Akhtar Khan, AIR 1938 Lah 571].

In the award, the arbitrator has stated that the judgment of the High Court in the second appeal would not operate as res judicata as regards the title to the properties but was only a piece of evidence. The arbitrator came to the conclusion that the respondents were in joint possession of the properties and, therefore, there was no ouster. If the judgment operated as res judicata, the respondents had no title to the properties. There was no finding by the arbitrator that by adverse possession they had acquired title to the properties at any point of time. The question which was referred to the arbitrator was the dispute between the parties as regards the title to the properties. If the judgment of the High Court operated in law as res judicata, it would be an error of law apparent on the face of the award if it were to say that the judgment would not operate as res judicata. The District Judge was, therefore, right in holding that the award was vitiated by an error of law apparent on its face in that it was based on the proposition that the judgment of the High Court would not operate as res judicata on the question of title to the properties. If an award sets forth a proposition of law which is erroneous, then the award is liable to be set aside under Section 30 of the Arbitration Act. This Court has held that the provisions of the Arbitration Act will apply to proceedings by an arbitrator under the Act [see Charan Singh v. Babulal, AIR 1967 SC 57].

It might be recalled that the II Civil Judge set aside the first award and remitted the case to the arbitrator for passing a fresh award under Section 16 of the Arbitration Act. That was only on the basis that the arbitrator committed an error of law in relying upon the judgment of the High Court as finally determining the title to the properties. As no appeal under Section 39 of the Arbitration Act lay from an order remitting an award to an arbitrator under Section 16 of the Arbitration Act, Ishtiaq Ahmed could not have challenged the order. There is, therefore, no reason why the appellants should be precluded from challenging the correctness of that order in this appeal and getting relief on that basis.

We set aside the order of the High Court and allow the appeal. In the circumstances we think it would be an empty formality to restore the decision of the District Judge and remit the case again to the arbitrator. We restore the award dated March 30, 1959, passed by Mr. K.C. Govil, the first arbitrator.

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Case Law on section 13

             Narasimha  Rao       v.       Y.  Venkata  Lakshmi           [1991  SC]

The 1st appellant and the 1st respondent were married at Tirupati on February 27, 1975. They separated in July 1978. The 1st appellant filed a petition for dissolution of marriage in the Circuit Court of St. Louis County Missouri, USA. The 1st respondent sent her reply from here under protest. The Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of the 1st respondent.

On November 2, 1981, the 1st appellant married the 2nd appellant in Yadgirigutta. Hence, 1st respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Missouri Court. The learned Magistrate discharged the appellants. The High Court set aside the order of the Magistrate holding that a photostat copy of the judgment of the Missouri Court was not admissible in evidence to prove the dissolution of marriage.

It is necessary to note certain facts relating to the decree of dissolution of marriage passed by the Missouri Court. In the first instance, the Court assumed jurisdiction over the matter on the ground that the 1st appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and that petition in that Court. Secondly, the decree has been passed on the only ground that there remains no reasonable likelihood that the marriage between the parties can be preserved, and that the marriage is, therefore, irretrievably broken”. Thirdly, the 1st respondent had not submitted to the jurisdiction of the Court.  Fourthly, it is not disputed that the 1st respondent was neither present nor represented in the Court and the Court passed the decree in her absence.

Under the provisions of the Hindu Marriage Act, only the District Court within the local limits of whose original civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together has jurisdiction to entertain the petition. The Circuit Court of St. Louis County, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage is not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Act.

Under Section 13 of the Code of Civil Procedure, a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a Court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice, (e) it is obtained by fraud, (f) it sustains a claim founded on a breach of any law in force in India.

As pointed out above, the present decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. The decree is also passed on a ground which is not available under the Act which is applicable to the marriage.

What is further, the decree has been obtained by the 1st appellant by stating that he was the resident of the Missouri State when the record shows that he was only a bird of passage there and was ordinarily a resident of the State of Lousiana. He had, if at all, only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce. He has in his petition made a false averment that the 1st respondent had refused to continue to stay with him in the State of Missouri where she had never been.

Relying on a decision of this Court in Smt. Satya v. Teja Singh [1975 SC], it is possible for us to dispose of this case on a narrow ground, viz., that the appellant played a fraud on the foreign court representing to it incorrect jurisdiction facts. For, as held in that case, residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. We refrain from adopting that course in the present case because there is nothing on record to assure us that the Court of St. Louis does not assume jurisdiction only on the basis of a mere temporary residence for the purpose of obtaining divorce. We would, therefore, presume that the foreign court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law.

The larger question that we would like to address ourselves to is whether even in such cases Courts in this country should recognise foreign divorce decrees.

What we state here will apply strictly to matters arising out of matrimonial disputes.

Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute.

Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.

Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself to the jurisdiction of the court and contests the claim or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court should not be considered as a decision on merits of the case.

The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. Marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country.

For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself and contest effectively the said proceedings. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice.  If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied.

The provision of clause (e) of Section 13 which requires that the courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgments in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is, therefore, unenforceable.

The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. The High Court is not correct in its reasoning.

Under Section 74(1)(iii) of the Indian Evidence Act documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. Under Section 76 read with Section 77 of the Act, certified copies of such documents may be produced in proof of their contents. However, under Section 86 of the Act there is a presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in that country that the manner in which it has been certified is commonly in use in that country for such certification.

Section 63(1) and (2) read with Section 65(e) and (f) of the Act permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence. A photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original. The present photostat copies of the judicial record of the Court of St. Louis is certified by the Deputy Clerk who is a public officer having custody of the document within the meaning of Section 76 of the Act. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. The expression “certified copy” of a foreign judgment in Section 14 of the Code has to be read consistent with the requirement of Section 86 of the Act.

While, therefore, holding that the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original, we uphold the order of the High Court also on a more substantial and larger ground as stated above. Accordingly, we dismiss the appeal and direct the learned Magistrate to proceed with the matter pending before him according to law

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