Civil Procedure Code, 1908 – Jurisprudence, Interpretation & General Laws Important Questions

Civil Procedure Code, 1908 – Jurisprudence, Interpretation & General Laws Important Questions

Question 1.
Distinguish between: Decree & Order [Dec 2011 (4 Marks)]
Answer:
Following are the main points of distinction between decree and order:

Points Decree Order
When passed A decree can only be passed in a suit originated by the presentation of a plaint. Order can be passed in a suit originated by the presentation of a plaint, application, or petition.
Determination of a right A decree contains the conclusive determination of a right. The order may or may not finally determine a right.
Preliminary / Final The decree may be final, preliminary, or partly preliminary partly final. Order cannot be a preliminary order.
Number In general, there can only be one decree or at the most one preliminary and one final decree in a suit. There can be any number of orders in a suit.
Appeal Every decree is appealable unless an appeal is expressly barred. Only those orders which are specified as appealable in the code are appealable.
Second appeal A second appeal may lie against a decree to a High Court on certain grounds. There is no second appeal for orders.

Question 2.
Explain the Cause of actions under the Code of Civil Procedure, 1908. [June 2012 (4 Marks)]
Answer:
Cause of action means every fact that it would be necessary for the plaintiff to prove in order to support his right to the judgment of the Court. It means all the essential facts constituting the rights and their infringement.

It means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.

Question 3.
Distinguish between: ‘Decree’ and ‘order’. [June 2014 (4 Marks)]
Answer:
Following are the main points of distinction between decree and order:

Points Decree Order
When passed A decree can only be passed in a suit originated by the presentation of a plaint. Order can be passed in a suit originated by the presentation of a plaint, application, or petition.
Determination of a right A decree contains the conclusive determination of a right. The order may or may not finally determine a right.
Preliminary / Final The decree may be final, preliminary, or partly preliminary partly final. Order cannot be a preliminary order.
Number In general, there can only be one decree or at the most one preliminary and one final decree in a suit. There can be any number of orders in a suit.
Appeal Every decree is appealable unless an appeal is expressly barred. Only those orders which are specified as appealable in the code are appealable.
Second appeal A second appeal may lie against a decree to a High Court on certain grounds. There is no second appeal for orders.

Question 4.
A suit was instituted by the Plaintiff Company alleging infringement by the Defendant Company for using the trade name of the medicine and selling the same in wrapper and carton of identical designs with the same color combination, etc., as that of Plaintiff Company. A subsequent suit was instituted in a different Court by the Defendant Company against the Plaintiff Company with similar allegations. In such a situation, advise the Plaintiff Company on the procedure adopted by the Courts. [Dec 2009 (5 Marks)]
Answer:
As per Section 10 of the Civil Procedure Code, 1908, if the suit is pending in one Court then another Court cannot take such suit in which matter is the same. The doctrine of res sub-judice is applicable in this case.

In the given case, the parties are the same in both suits, and the subject matter of both suits is also the same, the second suit would be barred by the application of the principle of res sub judice as per Section 10.

Question 5.
A suit was instituted by the Plaintiff Company alleging infringement by the
Defendant Company for using the trade name of the medicine and selling the same in wrapper and carton of identical designs with the same color combination, etc., as that of Plaintiff Company. A subsequent suit was instituted in a different Court by the Defendant Company against the Plaintiff Company with similar allegations. In such a situation, advise the Plaintiff Company on the procedure adopted by the Courts. [Dec 2012 (5 Marks)]
Answer:
As per Section 10 of the Civil Procedure Code, 1908, if the suit is pending in one Court then another Court cannot take such suit in which matter is the same. The doctrine of res sub-judice is applicable in this case.

In the given case, the parties are the same in both suits, and the subject matter of both suits is also the same, the second suit would be barred by application of the principal of res sub judice as per Section 10.

Question 6.
A suit was instituted by the plaintiff company alleging infringement by the defendant company by using the name of the medicine and selling the same in wrapper and carton of identical design with the same color combination, etc., as that of the plaintiff company. A subsequent suit was instituted in a different court by the defendant company against the plaintiff company with the same allegations. Can the decision be given by both the courts in the respective suits? [Dec 2014(6 Marks)]
Answer:
As per Section 10 of the Civil Procedure Code, 1908, if the suit is pending in one Court then another Court cannot take such suit in which matter is the same. The doctrine of res sub-judice is applicable in this case.

In the given case, the parties are the same in both suits, and the subject matter of both suits is also the same, the second suit would be barred by the application of the principal of res sub judice as per Section 10.

Question 7.
Discuss the doctrine of ‘Res Sub Judice’ under Section 10 of the Civil Procedure Code, 1908. [Dec 2018 (5 Marks)]
Answer:

  1. If the suit is pending before one court then another court can’t make the suit in which the matter and parties are the same.
  2. Conditions for applying the doctrine of res sub-judice:
    1. Two suits filed with the court at different times
    2. Matter in issue is directly and substantially in the former issue.
    3. Earlier suit is pending before court (not before the foreign court)
    4. Parties to the suits are the same
  3. The objective of this doctrine is to avoid multiplicity of proceedings and to avoid contradictory judgment.

Question 8.
Discuss the doctrine of res judicata under section 11 of the Code of Civil Procedure, 1908. [Dec 2009 (5 Marks)]
Answer:
Res judicata [Section 11]: No Court shall try any suit or issue in which j the matter directly and substantially in issue has been directly and substantially | in issue in a former suit between the same parties, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

In simple words, once a matter is finally decided by a competent Court, no party y can be permitted to reopen it in subsequent litigation.

Essential conditions of res judicata:

  • The matter must be directly and substantially in issue in two suits.
  • The prior suit should be between the same parties.
  • Parties should have litigated under the same title.
  • The court determined the earlier suit must be competent to try the 1 latter suit.
  • The same question is directly and substantially in issue in the latter suit.

Question 9.
Anil was a trustee of a trust. After Anil’s death, Brij wrongfully takes possession of the trust property. Chandan, the son of Anil files a suit for recovery of possession of the property against Brij as the legal heir of Anil in his individual capacity. But Chandan did not succeed. Then Chandan files another suit for recovery of trust property against Brij in the capacity of the trustee as he was appointed as trustee after the death of Anil. Whether the second suit is barred by the doctrine of constructive res judicata? Explain. [June 2010(6 Marks)]
Answer:
As per Explanation IV to Section 11, any matter which might and ought to have been made the ground of defense or attack in such former suit shall be | deemed to have been a matter directly and substantially in issue in such suit. The doctrine of constructive Res Judicata prevents further suits from being filed for a matter that is at the core of a former suit. In this case, the two suits are filed by Chandan in two different capacities. Hence, the second suit is not barred.

Question 10.
Define res judicata and state the conditions of Sts application. [June 2011 (5 Marks)]
Answer:
Res judicata [Section 11]: No Court shall try any suit or issue in which j the matter directly and substantially in issue has been directly and substantially | in issue in a former suit between the same parties, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

In simple words, once a matter is finally decided by a competent Court, no party y can be permitted to reopen it in subsequent litigation.

Essential conditions of res judicata:

  • The matter must be directly and substantially in issue in two suits.
  • The prior suit should be between the same parties.
  • Parties should have litigated under the same title.
  • The court determined the earlier suit must be competent to try the 1 latter suit.
  • The same question is directly and substantially in issue in the latter suit.

Question 11.
Distinguish between: ‘Doctrine of res sub juice and ‘doctrine of Resjudicata’. [Dec 2013 (4 Marks)]
Answer:
Following are the main points of distinction between res sub-judice and res judicata:

Points Res sub-judice Res judicata
When applies Res sub-judice applies to matter pending trial. Res judicata applies to a matter adjudicated upon.
Bar Res sub-judice bars the trial of a suit of the pending suit. Res judicata bars the trial of a suit or an issue that has been decided in a former suit.
Section Section 10 of the Civil Procedure Code, 1908 incorporates this rule. Section 11 of the Civil Procedure Code, 1908 incorporates this rule.

Question 12.
Explain the difference if any, between ‘Res Judicata’ and ‘Res Sub-Judice’. [June 2019 (4 Marks)]
Answer:
Following are the main points of distinction between res sub-judice and res judicata:

Points Res sub-judice Res judicata
When applies Res sub-judice applies to matter pending trial. Res judicata applies to a matter adjudicated upon.
Bar Res sub-judice bars the trial of a suit of the pending suit. Res judicata bars the trial of a suit or an issue that has been decided in a former suit.
Section Section 10 of the Civil Procedure Code, 1908 incorporates this rule. Section 11 of the Civil Procedure Code, 1908 incorporates this rule.

Question 13.
A transport company has its head office in Delhi and branch offices at Chennai, Jaipur, and Mumbai. A dispute cropped up between Sam and the company in respect of a transaction made through the Chennai office. Sam files a suit in respect of this dispute against the company in a Court at Jaipur. How will the Court decide?
Or
A transport company has its head office in Kolkata and branch offices at Allahabad, Lucknow, and Puri. A dispute cropped up between Hassan and the transport company in respect of a transaction through the Allahabad office. Hassan files a suit in respect of this dispute against the company in a court at Puri. Is the court at Puri competent to decide this case? Give reasons. [June 2012 (5 Marks)]
Answer:
As per Section 20 of the Civil Procedure Code, 1908, subject to provision of Sections 15 to 19:
(a) Every suit shall be instituted in Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

(b) If there is more than one defendant’s suit shall be instituted in Court within the local limits of whose jurisdiction any of the defendants, at the j time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain. However, in such [ case the leave of the Court has to be taken or the defendants who do not | reside, or carry on business, or personally work for gain, acquiesce in j such institution.

(c) Suit can also be instituted where 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 has also a subordinate office, at such place.

Accordingly, the suit filed in the Jaipur Court will be dismissed on account of jurisdiction.

The suit ought to have been filed in Court of:

  • Chennai where the cause of action arisen or
  • Delhi where the corporation has its principal office.

Question 14.
A real estate company has its head office in Delhi and branch offices at Ahmedabad, Patna, and Indore. A dispute cropped up between Sourabh and the company in respect of a transaction through the Ahmedabad office. Sourabh files a suit in respect of this dispute against the company in a court at Patna. How will the court decide? [June 2014 (6 Marks)]
Answer:
As per Section 20 of the Civil Procedure Code, 1908, subject to provision of Sections 15 to 19:
(a) Every suit shall be instituted in Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

(b) If there is more than one defendant’s suit shall be instituted in Court within the local limits of whose jurisdiction any of the defendants, at the j time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain. However, in such [ case the leave of the Court has to be taken or the defendants who do not | reside, or carry on business, or personally work for gain, acquiesce in j such institution.

(c) Suit can also be instituted where 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 has also a subordinate office, at such place.

Accordingly, the suit filed in the Jaipur Court will be dismissed on account of jurisdiction.

The suit ought to have been filed in Court of:

  • Chennai where the cause of action arisen or
  • Delhi where the corporation has its principal office.

Question 15.
Distinguish between: Set-off & Counter-claim [Dec 2010 (4 Marks)]
Answer:
Following are the main points of distinction between set-off & counter-claim:

Points Set-off Counter-claim
When passed Set-off is a reciprocal acquittal of debts between the plaintiff and defendant. A claim made by the defendant in a suit against the plaintiff is called counter-claim.
Nature Set-off is a statutory defense to a plaintiff’s action. Counter-claim is substantially a cross action.
Transaction The claim of set-off need not originate from the same transaction. However, the claim of equitable set-off must originate from the same transaction. Counter-claim need not arise out of the same transaction.
Claim An equitable set-off is a claim by the defendant in defense that generally cannot exceed the plaintiff’s claim. A counterclaim by the defendant may, however, exceed the plaintiff’s claim being in the nature of a cross-action.

Question 16.
Ram and Shyam sell wheat for ₹ 10,000 to Sohan and Mohan. Sohan sells cloth worth ₹ 12,000 to Shyam. Sohan files a suit against Shyam for recovery of the price of cloth. Shyam claims set-off of the cost of wheat in this suit. Will he succeed? [Dec 2010 (5 Marks)]
Answer:
No. As per Order 8, Rule 6, set-off is possible only when the parties to j both claims are the same. So, Shyam’s claims for set-off will not be allowed j by the Court.

Question 17.
Distinguish between: Set-off & Equitable Set-off [June 2012 (4 Marks)]
Answer:
Following are the main points of distinction between set-off & equitable i -set-off:

Points Set-off Equitable Set-off
Sum The principal of set-off is applied in case of ascertained some of the money. The principle of equitable set-off is applied in case of an unascertained sum of money.
Claim The claim of set-off need not originate from the same transaction. The claim of equitable set-off must originate from the same transaction.
Court’s discretion Legal set-off can be claimed as a right by the defendant and the Court is bound to adjudicate upon the claim. Equitable set-off cannot be claimed as a right but by Court’s discretion.
Limitation In case of set-off, the amount claimed should not be time-barred. The principle of equitable set-off may be applied even in the case of time-barred amounts.
Court fee Court fee must be paid on set-off amount. No court fee is required.

Question 18.
Distinguish between: Set-off & Counter-claim [June 2013 (4 Marks)]
Answer:
Following are the main points of distinction between set-off & counter-claim:

Points Set-off Counter-claim
When passed Set-off is a reciprocal acquittal of debts between the plaintiff and defendant. A claim made by the defendant in a suit against the plaintiff is called counter-claim.
Nature Set-off is a statutory defense to a plaintiff’s action. Counter-claim is substantially a cross action.
Transaction The claim of set-off need not originate from the same transaction. However, the claim of equitable set-off must originate from the same transaction. Counter-claim need not arise out of the same transaction.
Claim An equitable set-off is a claim by the defendant in defense that generally cannot exceed the plaintiff’s claim. A counterclaim by the defendant may, however, exceed the plaintiff’s claim being in the nature of a cross-action.

Question 19.
The Civil Court has the power to grant a temporary injunction, but for obtaining the same the plaintiff is required to satisfy the Court. Explain in brief. [June 2019 (4 Marks)]
Answer:
The Court may grant a temporary injunction to restrain any such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation or sale or removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit; where it is proved by affidavit or otherwise:

  1. that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
  2. that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, or
  3. that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

It would be necessary for the plaintiff to satisfy the Court that

  1. substantial and irreparable harm or injury would be suffered by him if such temporary injunction (till the disposal of the suit) is not granted
  2. the balance of convenience lies in his/her favor and
  3. that such loss or damage or harm cannot be compensated by damages.

Question 20.
What do you understand by ‘set off’ and ‘counter-claim under the Civil Procedure Code, 1908? What is the effect of set-off? [Dec 2019 (4 Marks)]
Answer:
Set-off [Order 8, Rule 6]: Set-off is a reciprocal acquittal of debts between the plaintiff and defendant. It has the effect of extinguishing the plaintiff’s claim to the extent of the amount claimed by the defendant as a claim.

Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from plaintiff and where both parties fill the same character, the defendant may, at the first hearing of the suit, but not afterward unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

Counter-claim [Order 8, Rule 6A]: A defendant in a suit may, in addition to his right of pleading a set-off, set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defense or before the time limited for delivering his defense has expired, whether such counter-claim is in the nature of the claim for damages or not.

Question 21.
Explain the rules relating to the delivery of summons by the court under the Code of Civil Procedure (Amendment) Act, 2002. [Dec 2012 (4 Marks)]
Answer:
Delivery of summons by Court [Order 5, Rule 9]:
1. Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer, who may be an officer of a Court other than that in which the suit is instituted, to be served by him or one of his subordinates or to such courier services as are approved by the Court.

2. The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or by any other means to the transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court. However, the service of summons shall be made at the expenses of the plaintiff.

3. Where the defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply.

4. When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorized by the courier service to the effect.

That the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant.

However, where the summons was properly addressed, pre-paid, and duly sent by registered post acknowledgment due, the declaration shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.

5. Where the Court is satisfied that there is reason to believe that the person summoned is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way the Court shall order the service of the summons to be served by affixing a copy thereof in some conspicuous place in the Courthouse and also upon some conspicuous part of the house in which the person summoned is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

Substituted Service [Order 5, Rule 20]: Where the defendant resides in another province, a summons may be sent for service in another state to such court and in such manner as may be prescribed by rules in force in that State.

The above provisions shall apply also to a summons to witnesses.

In the case of a defendant who is a public officer, servant of railways, or local authority, the Court may if more convenient, send the summons to the head of the office in which he is employed.

Service on Corporation [Order 29, Rule 2]: In the case of a suit being instituted against a corporation, the summons may be served:
(a) on the secretary or on any director, or other principal officers of the corporation or
(b) by leaving it or sending it by post addressed to the corporation at the registered office or if there is no registered office, then at the place where the corporation carries on business.

Service on Partnership Firm [Order 30, Rule 3]: Where persons are to be sued as partners in the name of their firm, the summons shall be served either:
(a) upon one or more of the partners or
(b) at the principal place at which the partnership business is carried on within India or upon any person having the control or management of the partnership business.

Where a partnership has been dissolved the summons shall be served upon every person whom it is sought to make liable.

Question 22.
Discuss in brief the main remedies available to a person against whom ex parte decree is passed. [June 2013 (5 Marks)]
Answer:
Where the plaintiff appears and the defendant does not appear before the Court, in spite of due service of summons, then the Court may proceed against the defendant ex parte.

An ‘Ex parte decrees a decree passed against a defendant in absentia. Despite service of summons, where on the date of hearing the only plaintiff does and a defendant does not appear the Court may hear the suit ex parte and pass a decree against the defendant.

A defendant has four remedies available if an ex-parte decree is passed against him:

  • He may file an appeal against the ex-parte decree.
  • He may file an application for review of the judgment.
  • He may apply for setting aside the ex-parte decree.
  • A suit can also be filed to set aside an ex-parte decree obtained by fraud but no suit shall lie for non-service of summons.

Question 23.
In a civil case what remedies are available for the defendant against whom an ex-parte decree has been passed by the court? [Dec 2018 (4 Marks)]
Answer:
Where the plaintiff appears and the defendant does not appear before the Court, in spite of due service of summons, then the Court may proceed against the defendant ex parte.

An ‘Ex parte decree is a decree passed against a defendant in absentia. Despite service of summons, where on the date of hearing the only plaintiff does and a defendant does not appear the Court may hear the suit ex parte and pass a decree against the defendant.

A defendant has four remedies available if an ex-parte decree is passed against him:

  • He may file an appeal against the ex-parte decree.
  • He may file an application for review of the judgment.
  • He may apply for setting aside the ex-parte decree.
  • A suit can also be filed to set aside an ex-parte decree obtained by fraud but no suit shall lie for non-service of summons.

Question 24.
Distinguish between: Review & Revision in civil law [Dec 2009 (4 Marks)]
Answer:
Following are the main points of distinction between review & revision:

Points Review Revision
Meaning Any person considering himself aggrieved by a decree or order may apply for a review of judgment to the Court which passed the decree or order on any of the grounds as mentioned in Order 47 Rule 1. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies and in certain cases and may make such order as it thinks fit which is revision.
Court Any Court, which passed the decree or made an order, can review the case. The High Court can only do a revision of any case which has been decided by any Court subordinate to it.
By whom The review can be made only on an application by an aggrieved party. Revision power can be exercised by the High Court on an application or even suo moto.
Appeal Review can be made even when an appeal lies to the High Court. Revision power can be exercised by the High Court only in a case where no appeal lies to the High Court.
Grounds The grounds for review are:
(a) Discovery of new and important matter or evidence;
(b) Mistake or error apparent on the face of the record;
(c) Any other sufficient reason.
The conditions for revisions are:
(a) A case must have been decided;
(b) The Court which has decided the case must be a Court subordinate to the High Court;
(c) The order should not be an appealable one;

Question 25.
Distinguish between: Review & Revision in civil law [June 2013 (4 Marks)]
Answer:

Points Review Revision
Meaning Any person considering himself aggrieved by a decree or order may apply for a review of judgment to the Court which passed the decree or order on any of the grounds as mentioned in Order 47 Rule 1. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies and in certain cases and may make such order as it thinks fit which is revision.
Court Any Court, which passed the decree or made an order, can review the case. The High Court can only do a revision of any case which has been decided by any Court subordinate to it.
By whom The review can be made only on an application by an aggrieved party. Revision power can be exercised by the High Court on an application or even suo moto.
Appeal Review can be made even when an appeal lies to the High Court. Revision power can be exercised by the High Court only in a case where no appeal lies to the High Court.
Grounds The grounds for review are:
(a) Discovery of new and important matter or evidence;
(b) Mistake or error apparent on the face of the record;
(c) Any other sufficient reason.
The conditions for revisions are:
(a) A case must have been decided;
(b) The Court which has decided the case must be a Court subordinate to the High Court;
(c) The order should not be an appealable one;

Question 26.
Distinguish between review and revision under the Civil Procedure Code 1908. [June 2019 (4 Marks)]
Answer:

Points Review Revision
Meaning Any person considering himself aggrieved by a decree or order may apply for a review of judgment to the Court which passed the decree or order on any of the grounds as mentioned in Order 47 Rule 1. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies and in certain cases and may make such order as it thinks fit which is revision.
Court Any Court, which passed the decree or made an order, can review the case. The High Court can only do a revision of any case which has been decided by any Court subordinate to it.
By whom The review can be made only on an application by an aggrieved party. Revision power can be exercised by the High Court on an application or even suo moto.
Appeal Review can be made even when an appeal lies to the High Court. Revision power can be exercised by the High Court only in a case where no appeal lies to the High Court.
Grounds The grounds for review are:
(a) Discovery of new and important matter or evidence;
(b) Mistake or error apparent on the face of the record;
(c) Any other sufficient reason.
The conditions for revisions are:
(a) A case must have been decided;
(b) The Court which has decided the case must be a Court subordinate to the High Court;
(c) The order should not be an appealable one;

Question 27.
Write a short note on Suits by or against corporations
Answer:
Signature or verification of pleading [Order 29, Rule 1]: In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation, by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

Service of summons [Order 29, Rule 2]: Subject to any provision regulating service of process, where the suit is against a corporation, the summons may be served.

  • On the secretary or any director or other principal officer of the corporation or
  • By leaving it or sending it by post addressed to the corporation at the registered office or if there is no registered office then at the place where the corporation carries on business.

Power of the Court to require personal attendance [Order 29, Rule 3]: The Court may at any stage of the suit, require the personal appearance of the secretary or any director or other principal officer of the corporation who may be able to answer material questions relating to the suit.

Question 28.
Discuss the law relating to suits by or against minors.
Answer:
A minor is a person:

  1. who has not completed the age of 18 years and
  2. for whose person or property a guardian has been appointed by a Court, for whose property is under a Court of Wards, the age of majority is completed at the age of 21 years.

Important points relating to suits by or against a minor:

  1. Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.
  2. The next friend should be a person who is of sound mind and has attained majority.
  3. The interest of the next friend is not averse to that of the minor.
  4. Where the suit is instituted without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.
  5. Where the defendant is a minor the Court, on being satisfied with the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
  6. An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
  7. A person appointed as guardian for the suit for a minor shall unless his appointment is terminated by retirement, removal, or death, continues as such throughout all proceedings arising out of suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree.

Question 29.
A summary suit applies to a suit to prevent unreasonable obstruction by a defendant. [Dec 2013 (4 Marks)]
Answer:
A procedure by way of summary suit applies to suits upon a bill of exchange, Hundies, or promissory notes when the plaintiff desires to proceed under the provision of Order 37.

Order 37 provides for a summary procedure to respect certain suits. The object is to prevent unreasonable obstruction by a defendant.

The rules for the summary procedure are applicable to the following Courts.

  • High Courts, City Civil Courts, and Small Courts.
  • High Courts may restrict the operation of Order 37 by issuing a notifica¬tion in the Official Gazette.

The debt or liquidated demand in money payable by the defendant should arise on a written contract or on enactment or on a guarantee.

Institution of summary suits: Such suit may be instituted by presenting a plaint containing the following essentials:

  • A specific averment to the effect that the suit is filed under this order.
  • That no relief which does not fall within the ambit of this rule has been claimed.
  • The inscription immediately below the number of the suit in the title of the suit that the suit is being established under Order 37 of the CPC.

Leave to defend: Order 37 Rule 3 prescribes the mode of service of summons etc. and leave to defend. The defendant is not entitled to defend the suit unless he enters an appearance within 10 days from the service of summons. Such leave to defend may be granted unconditional or upon such term as the Court or the judge may think fit.

However, such leave shall not be granted where.

  • The court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defense or that the defenses are frivolous or veracious, and
  • The part of the amount claimed by the plaintiff and admitted by the defendant to be due from him is deposited by him in the Court.

The summary suit must be brought within one year from the date on which the debt becomes due and payable, whereas the period of limitation for suits for ordinary cases under negotiable instrument is three years.

Question 30.
‘Explain provisions of summary procedure’ including leave to defend 3 under Civil Procedure Code. [June 2019 (4 Marks)]
Answer:
A procedure by way of summary suit applies to suits upon a bill of exchange, Hundies, or promissory notes when the plaintiff desires to proceed under the provision of Order 37.

Order 37 provides for a summary procedure to respect certain suits. The object is to prevent unreasonable obstruction by a defendant.

The rules for the summary procedure are applicable to the following Courts.

  • High Courts, City Civil Courts, and Small Courts.
  • High Courts may restrict the operation of Order 37 by issuing a notification in the Official Gazette.

The debt or liquidated demand in money payable by the defendant should arise on a written contract or on enactment or on a guarantee.

Institution of summary suits: Such suit may be instituted by presenting a plaint containing the following essentials:

  • A specific averment to the effect that the suit is filed under this order.
  • That no relief which does not fall within the ambit of this rule has been claimed.
  • The inscription immediately below the number of the suit in the title of the suit that the suit is being established under Order 37 of the CPC.

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