Law Relating to Civil Procedure Code with FAQs – Laws | Practices | Court Procedures

The special or specific statute will prevail.

“Decree” is defined in Section 2(2) of the Civil Procedure Code, 1908 as:

• the formal expression of an adjudication which, so far as regards the Court expressing it;
• Conclusively;
• determines the rights of the parties;
• with regard to all or any of the matters in controversy;
• in the suit and may be either preliminary (i.e., when further proceedings have to be taken before disposal of the suit) or final.

But decree does not include:

• any adjudication from which an appeal lies as an appeal from an Order, or
• any order of dismissal for default.

Essentials of a decree are:

• There must be formal expression of adjudication
• There must be a conclusive determination of the rights of parties.
• The determination must be with regard to matters in controversy.
• The adjudication should have been given in the suit.

Cause of actions under Code of Civil Procedure, 1908.

• “Cause of action” means every fact that it would be necessary for the plaintiff to prove in order to support his right to the judgement of the Court.
• Under Order 2, Rule 2, of the Civil Procedure Code it means all the essential facts constituting the rights and its infringement.
• It means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement.

• “Cause of action” means every fact that it would be necessary for the plaintiff to prove in order to support his right to the judgement of the Court.
• Under Order 2, Rule 2, of the Civil Procedure Code it means all the essential facts constituting the rights and its infringement.
• It means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement.

• “Judgement” as defined in Section 2(9) of the Civil Procedure Code means the statement given by the Judge of the grounds of a decree or order.
• Thus, a judgement must set out the grounds and reasons for the Judge to have arrived at the decision.
• In other words, a “judgement” is the decision of a Court of justice upon the respective rights and claims of the parties to an action in a suit submitted to it for determination (State of Tamilnadu v. S. Thangaval).

• Section 10 CPC, 1908 provides that 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 or any of them claim, litigating under the same title.
• where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
• Doctrine of Res Sub Judice restricts or bar under Section 10 of the CPC.
• However, the pendency of a suit in a foreign court does not preclude the Courts in India from trying a suit founded on the same cause of action.
• To prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue, Section 10 is enacted.
• The purpose is also to avoid conflict of decision. It is really intended to give effect to the rule of res judicata. The institution of second suit is not barred by Sec. 10.
• It merely says that the trial cannot be proceeded with.

As per Section 10 of the Civil Procedure Code, 1908, if suit is pending in one Court, then other Court cannot take such suit in which matter is same. The doctrine of res sub-judice is applicable in this case. The proceedings of the subsequently instituted suit are to be stayed, irrespective of the fact that the Court in which the suit is instituted subsequently is of higher or lower jurisdiction than the Court in which the previous suit is pending. Therefore, the Court at Rampur will not accept the prayer of C & D.

As per Section 10 of the Civil Procedure Code, 1908, if suit is pending in one Court, then other Court cannot take such suit in which matter is same. The doctrine of res sub judice is applicable in this case. In given case, the parties are same in both suits and subject matter of both suits is also same, the second suit would be barred by application of principal of res sub-judice as per Section 10. Thus, subsequent suit will not be allowed to be continued.

• A consent or compromise decree is not a decision by Court.
• It is an acceptance of something to which the parties had agreed. The Court does not decide anything. The compromise decree merely has the seat of the Court on the agreement of the parties.
• As such, the principle of res judicata does not generally apply to a consent or compromise decree.
• But when the court on the facts proved comes to a conclusion that the parties intended that the consent decree should have the effect of deciding the question finally, the principle of res judicata may apply to it.
• Section 11 of the Code of Civil Procedure, 1908 deals with the doctrine of Res Judicata. The doctrine underlines the general principle that no one shall be twice vexed for the same cause, however, it does not apply in case of Consent and Compromise between parties, but depends on the Court, subject to the facts of the case.

• The Rule of:

1. 1. Res Sub Judice relates to a matter which is pending judicial enquiry while
   2. Res Judicata relates to a matter adjudicated upon or a matter on which judgement has been pronounced.

• The Rule of Res Sub Judice bars the trial of a suit in which the matter directly or substantially is pending adjudication in a previous suit,
  The Rule of Res judicata bars the trial of a suit of an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit between the same parties under the same title.
• Res Judicata arises out of considerations of public policy viz., that there should be an end to litigation on the same matter.
• Res-Judicata presumes conclusively the truth of the former decision and ousts the jurisdiction of the Court to try the case.
• It is however essential that the matter directly and substantially in issue must be the same as in the former suit and not matters collaterally or incidentally in issue.

• Section 11 of the Civil Procedure Code deals with the doctrine of Res Judicata.
• According to this provision of no Court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit (i.e., suit previously decided) either between the same parties, or between parties under whom they or any of them claim,
• litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised a finally decided by such Court.
• It is a pragmatic principle accepted and provided in law that there must be a limit or end to litigation on the same issues.

• The doctrine of res judicata is contained in Section 11 which provides that, no Court shall try any suit in which the matter is same in a previously decided suit and has been heard and finally decided by Court.
• In this case, the issue whether or not the rent was excess was not raised by a party and was not denied or admitted expressly or by implication by the other party in the previous suit. Thus, this matter was only incidentally and collaterally in issue and this decision on this issue will not operate as res judicata.

The provisions relating to limitation are explained as under:

Section 15 Court in which suits to be institute: Every suit shall be instituted in the Court of the lowest grade competent to try it.

Section 16 Suits to be instituted where subject-matter situate: Subject to the pecuniary or other limitations prescribed by any law, suits:

• for the recovery of immovable property with or without rent or profits,
• for the partition of immovable property,
• for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
• for the determination of any other right to or interest in immovable property,
• for compensation for wrong to immovable property,
• for the recovery of Movableproperty actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate.

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

Section 17 Suits for immovable property situate within jurisdiction of different Courts: Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: However, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.

Section 18 Place of Institution of suit where local limits of jurisdiction of Courts are uncertain: Where it is alleged to be uncertain within the local limits of the jurisdiction of which of 2 or more Courts, any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction: However, that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction. Where a statement has not been recorded under section 18(1), and an objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice.

Section 19 Suits for compensation for wrongs to person or movables: a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

According to section 16 of the Code of Civil Procedure, 1908, subject to the pecuniary or other limitations prescribed by any law, the following suits (relating to property) shall be instituted in the Court within the local limits of whose jurisdiction the property is situated:

• for recovery of immovable property with or without rent or profits;
• for partition of immovable property;
• for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;
• for the determination of any other right to or interest in immovable property;
• for compensation for wrong to immovable property;
• for the recovery of movable property actually under distraint orattachment.

Further, it has been provided by a proviso that where relief could be obtained through personal obedience of the defendant such suit to obtain relief for compensation or respecting immovable property can be instituted either in a local Court within whose local limits of jurisdiction the property is situated or in the Court within whose local limits of jurisdiction the defendant voluntarily resides or carries on business or personally works for gain.

 According to Section 16 of the Civil Procedure Code, 1908 subject to the pecuniary or other limitations prescribed by any law, the following suits (relating to property) shall be instituted in the Court within the local limits of whose jurisdiction the property is situated:

• for recovery of immovable property with or without rent or profits;
• for partition of immovable property;
• for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;
• for the determination of any other right to or interest in immovable property;
• for compensation for wrong to immovable property;
• for the recovery of movable property actually under distraint or attachment.

It has also been provided by a proviso that where relief could be obtained through personal obedience of the defendant such suit to obtain relief for compensation or respecting immovable property can be instituted either in a local Court within whose local limits of jurisdiction the property is situated or in the Court within whose local limits of jurisdiction the defendant voluntarily resides or carries on business or personally works for gain. According to the Explanation, “property” means property situated in India.

As per Section 19 of the Civil Procedure Code, 1908, where a suit is for compensation for wrong done to the person or to movable property, the suit may be instituted at the option of the plaintiff in either of the following Courts.

• In jurisdiction of Court where the wrong was done.
• In jurisdiction of Court where the defendant resides, or carries on business, or personally works for gain.

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

The suit ought to have been filed in Court of:

• Mumbai where the cause of action arisen or

Kolkata where the defendant resides and carries on business.

As per Section 20 of the Civil Procedure Code, 1908, subject to provision of Sections 15 to 19:

• 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.
• If there are more than one defendant suit shall be instituted in Court within the local limits of whose jurisdiction any of the defendants, at the 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 such institution.
• Suit can also be instituted where the cause of action, wholly or in part, arises.

Thus,

• Ajeet can file that suit at Indore where one of the defendants, i.e., Baljeet resides. Buthe can do so either with the consent express or implied, of the other defendant Charanjeet, or with the prior permission of the Court.
• Ajeet can file the suit a Lucknow where one of the defendants, i.e., Charanjeet resides,but either with the express or implied consent of Baljeet, or with the prior permission of the Court.

Ajeet can file a suit at Kolkata, where the cause of action arisen i.e., the place where the joint promissory note was delivered by Baljeet and Charanjeet to Ajeet.

Temporary injunction – The Court may grant 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:

• 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
• that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, or
• 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 substantial and irreparable harm or injury would be suffered by him if such temporary injunction (till the disposal of the suit) is not granted and that such loss or damage or harm cannot be compensated by damages.