SUBJECT MATTER JURISDICTION-

1. Horil v. Keshav

It is also well settled that under section 9 of the Civil Procedure Code, the civil court has
inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly
or by necessary implication, by any statutory provision and conferred on any other tribunal or
authority. We find nothing in Order XXIII Rule 3-A to bar the institution of a suit before the
civil court even in regard to decrees or orders passed in suits and/or proceedings under
different statutes before a court, tribunal or authority of limited and restricted jurisdiction .

We are of the view that Revenue courts are neither equipped nor competent to effectively
adjudicate on allegations of fraud that has overtones of criminality and the courts really
skilled and experienced to try such issues are the courts constituted under the Code of Civil
Procedure.

2. Dhulabhai v. State

Principles related to scope of S. 9 and exclusion of jurisdiction of civil courts-

1. If statute gives finality to orders of tribunal, then jurisdiction of civil courts is

excluded. This does not apply when provision of an act have not been complied with
or the tribunal has not acted within fundamental judicial procedures.
2. To ascertain implied exclusion, courts will ascertain the provisions for determination
of rights and liabilities, and whether remedies associated w actions in civil courts are
prescribed by the said statute or not.
3. Act as ultra vires cannot be challenged before a tribunal
4. Where act contains no machinery for refund of tax, a suit lies
5. If there is finality to decisions of the authority under a statute, it cannot be questioned
for its correctness.
6. There is presumption in favour of jurisdiction of civil courts.

3. Nahar Industrial Enterprises v. HSBC

If the Tribunal was to be treated to be a civil court, the debtor or even a third party must have
an independent right to approach it without having to wait for the Bank or Financial
Institution to approach it first. The continuance of its counter-claim is entirely dependant on
the continuance of the applications filed by the Bank. Before it no declaratory relief can be
sought for by the debtor

Concededly in the proceeding before the Debt Recovery Tribunal detailed examination;
cross-examinations, provisions of the Evidence Act as also application of other provisions of
the Code of Civil Procedure like interrogatories, discoveries of documents and admission
need not be gone into. Taking recourse to such proceedings would be an exception.
Entire focus of the proceedings before the Debt Recovery Tribunal centres round the legally
recoverable dues of the bank… Under the Act, as it originally stood, did not even have
any power to entertain a claim of set off or counter-claim. No independent proceedings can
be initiated before it by a debtor. A debtor under the common law of contract as also in terms
of the loan agreement may have an independent right. No forum has been created for
endorsement of that right. Jurisdiction of a civil court as noticed hereinbefore is barred only
in respect of the matters which strictly come within the purview of Section 17 thereof and not
beyond the same. The Civil Court, therefore, will continue to have jurisdiction.

On the ground of inconsistency in the procedures contained in the two Acts alone, the
jurisdiction of the civil court cannot be said to have been ousted.

PECUNIARY JURISDICTION-

1. Kiran Singh v. Chaman Paswan 1954 AIR 340-

The pecuniary jurisdiction is decided on the basis of the valuation by the plaintiff. Simply
because a court did not have the pecuniary jurisdiction to hear an appeal will not make the
decree liable to be set aside unless serious prejudice is caused to a party. A mere change of
forum, where the appeal was supposed to lie to the HC instead of the District Court does not
amount to prejudice.

TERRITORIAL JURISDICTION

1. Harshad Chimmanlal Modi v. DLF Universal 2005(7) SCC 791-

Agreement conferring jurisdiction on a Court otherwise not having it is not legally

enforceable. Agreement to absolutely oust the jurisdiction of all courts having it shall also be
invalid (ABC Laminart)
Note- However where 2 courts have competent jurisdiction then the parties may agree to
submit to only one of them (Hakam Singh v. Gammon India).

The proviso to S. 16 is only applicable where the relief sought can entirely be obtained
through the personal obedience of the defendant. : It was held that neither the Proviso to
Section 16 would get attracted nor Section 20 (residuary provision) would apply because
even though the relief sought was ‘specific performance of contract’, the contract was
respecting an immovable property and specific performance under the same required the
defendant to execute sale deed in favor of plaintiff and to deliver possession to him.
Therefore, the question was related to the right or interest in such property which was
covered by Section 16(d) CPC; thus, the matter ought to be decided by the Gurgaon courts,
where the property is situated and not the Delhi courts. Personal obedience means that where
the Court has granted equitable relief, and all the defendant has to do is refrain from doing an
act, or go outside of the jurisdiction of his place of residence.

2. Swastik Gases v. IOCL

Ouster of jurisdiction of a particular court is valid. Even if the clause does not contain words
such as ‘only’ or ‘exclusively’, even still the ouster can be valid. Where the parties have
agreed to grant jurisdiction to a particular court, that implicitly excludes the jurisdiction of
other courts.

3. Adeon Electronics v. Daulat (Optional)

Suit for specific performance simpliciter without asking for possession of the property is not
a ‘suit for land’ and will not fall within S. 16.

OBJECTION TO JURISDICTION

1. Hiralal v. Kalinath

Objection to the local jurisdiction of the court can be waived. This is recognized u/s 21.
Where a party to a suit had agreed to refer the matter to arbitration through court lie would be
deemed to have waived his objection to the territorial jurisdiction of the court raised by him
in his written statement.
RES JUDICATA

1. Aspi Jal v. Khushroo Rustom Dadyburjor-

The test for applicability of Section 10 of the Code is whether on a final decision being
reached in the previously instituted suit, such decision would operate as res-judicata in the
subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the
subsequent suit, if the earlier suit has been dismissed?

Although the relief claimed by the plaintiff is the same i.e. eviction of her tenant, but the
grounds for claiming the same are different. The cause of action giving rise to such claims is
also different because the timeline is changed, and the ground of non-user is for different
periods. Hence, the issue is not directly and substantially the same and both the suits can
parallelly continue before the same judge.

2. Indian Bank v. Maharashtra State Co-Op Marketing Federation

Since the purpose of res sub judice is to prevent multiplicity of proceedings and two
conflicting decisions the court can pass an order for the consolidation of both suits.

S. 10 is not a bar to suit and not trial, it does not affect the jurisdiction of the court or create
any substantive rights in the parties.

Stay on suit does not take away court’s power to pass interim orders.

S. 10 not applicable to summary suit.

3. Daryao v. State of U.P.

The principle of res judicata also applies to writ petitions.

4. Modi Entertainment v. WSG Cricket

London court cannot be considered a forum non-conveniens only on the basis of

Doordarshan’s argument that continuance of suit in London court would be oppressive and
vexatious. Since no good and sufficient reason to grant anti-suit injunction is made out, the
court will not aid Doordarshan to commit breach of agreement by restraining WSG from
prosecuting in the agreed forum of choice

NON-JOINDER & MISJOINDER OF PARTIES

 1. Mumbai International Airport v. Regency Convention-
 Plaintiff is dominus litis, and cannot be compelled to sue a person whom he does not
want to sue.
 The fact that a person is likely to secure a right/interest in a suit property, after the suit
is decided against the plaintiff, will not make such person a necessary party or a
proper party to the suit.

REPRESENTATIVE SUIT

1. Pramod P. Shah v. Ratan Tata

The court held that 'the interest in the suit' is the prejudice or accrual of liability arising
therefrom, and not the proprietary rights of the shareholders per se or the interest in
protecting the share value.

if filed or defended for others, then such others must form a class having a common interest
in (i) the right or the liability alleged in the suit; (ii) the grievance or injury complained of;
and (iii) in the relief sought.

It could be the case that a few shareholders do not connect the removal of Cyrus Mistry to
stock market crash; thus the interest of all shareholders cannot be said to be common as it is
based on pure speculation, which is a sine qua non of a representative suit.

ORDER II RULE II

1. Inbasagaran v. S Natarajan (2015) 11 SCC 12-

For Order 2 Rule 2 to apply, the cause of action must be the same. If the first suit is for
injunction due to threat of dispossession, and the second suit is for specific performance of
the sale agreement, the two causes of action are different and Order 2 Rule 2 will not apply.

2. Gurbux Singh v. Bhooralal-

Essentials of Order 2 Rule 2-

i) Same Cause of Action.

ii) In the same cause of action, plaintiff was entitled to more than one relief.
iii) Plaintiff was able to sue for the relief, without leave of the Court, in the first suit
A plea under O. 2 R. 2 of the Code cannot be made out except on proof of the plaint in the
previous suit the filing of which is said to create the bar. The burden of proof is always on the
plaintiff to establish that the person was entitled to relief.

Suit filed for possession and mesne profits. Plaintiff mentioned that he had filed a previous
suit and only claimed mesne profits which was granted in his favour. Defendant claimed
Order II Rule 2. However, he never supplied record of the pleadings, which is essential for
the court to analyze. Also, some courts say that mesne profits cannot be claimed with another
relief whereas some say that they can be claimed together. Supreme Court laid down finally
that the claim of mesne profits cannot be made with their original claim, hence it will not be
hit by Order II Rule 2.

3. Alka Gupta v. Narendar Kumar Gupta (Optional)

Partnership firm ran an institute. One of the partners sold her undivided share in the property.
That partner filed a suit in 2004 for balance of sale consideration w.r.t that sale. That suit was
decreed in favour of plaintiff.

In the subsequent suit in 2007, another suit was filed by the plaintiff for rendition of accounts
of the partnership firm, claiming that the partnership was dissolved in 2004.

Whether this subsequent suit is hit by O II Rule 2?

No, since causes of action are different. CoA in first suit is non-payment of price under sale
agreement. Second CoA is based on non-settlement of accounts of a dissolved partnership
constituted under deed dated 5/4/2002. O II Rule 2 does not apply where the two CoA are
different.

Also held- The strength of the second case and the conduct of plaintiff are not relevant for
deciding whether the second suit is barred by O.2 R.2 of the Code.

4. Mohd Khalil Khan v. Mehbub Ali Miyan (Not in course manual)

To examine cause of action or the relief, the evidences could be examined, but it is the plaint
that should be focused upon as written statement will not shed any light upon the same. CoA
means every fact which will be necessary for the plaintiff to prove in order to support his
right to judgment. If the bundle of essential facts to prove the claim in both cases is the same
the CoA is the same.
 5. State of MP v. State of Maharashtra (Not in Course manual)

SC held that plaintiff would be barred under Order II Rule 2 only when he omits to sue or
relinquishes the claim in a suit with knowledge that he has right to sue for that relief. A right
which a litigant does not know he possesses or a right which is not in existence at the time of
former suit cannot be regarded as a claim under Order II Rule 2.

PLEADINGS

1. T. Arivandandam v. T.V. Satyapal-

If on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless,

in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII
r. 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled.

2. B.K Narayana Pillai v. Paremswaran

2 pronged criteria for allowing amendments-

a. Necessary for determining real controversy b/w parties

b. No injustice is caused to the other side.

Other principles-

a. There is no injustice if the other side can be compensated with costs.

b. Party is not allowed to set up a new case and replace cause of action.
c. An earlier admission and later denial via amendment in W.S. shall not be permitted.
d. Principles governing amendments are same for both plaint and WS.
e. Mere delay is no ground to reject amendment if other side can be compensated with
costs.

3. Rajesh Kumar Aggarwal v. KK Modi

Provisions for allowing amendment of pleadings are for promoting ends of justice and not
defeating them.

The first part of Order 6 Rule 17 is discretionary which leaves it to the court to allow
amendment of pleading at any stage of the suit. The second part, however, is imperative and
enjoins the court to allow all such amendments which are necessary for determining the real
questions in controversy between the parties. Here, the proposed amendment does not change
the nature of the suit and there is no inconsistency with the relief claimed in original plaint.

4. UOI v. Agarwal Iron Industries

Plaint- That in the facts and circumstances the petitioner bona fide believes that there was no
information in possession of the officer issuing the warrant of authorization for search which
could lead any reasonable person to form an opinion about existence of undisclosed assets
with the petitioner. The warrant of authorization, even if assumed that there was any, was
issued mechanically, arbitrarily and without application of mind and without forming the
opinion about existence of undisclosed assets, as contemplated by sub-section (1) of Section
132 of the Income Tax Act.’

Denial in WS- ‘That in reply to Para 40 of the writ petition, it is denied that the warrant of
authorization was issued mechanically, arbitrarily and without application of mind.’

Whether specific or evasive denial?

It was found from the aforesaid reply that there was no specific denial of the averments made
in Para 40 of the writ petition. The court held that Order 8 Rule 5 of the Code of Civil
Procedure provided that every allegation of fact in the plaint if not denied specifically or by
necessary implication or stated to be not admitted in the pleading of the defendant shall be
taken to be admitted except against the person under disability

5. SCG Contracts India v. K.S. Chamankar Infrastructure

120 days deadline for filing a WS is mandatory for commercial courts. While rejection of
plaint and filing of WS are independent, application for rejection of plaint cannot be filed as a
ruse to recover the lost opportunity of failing to file WS.

6. Salem Bar Assn. v. UOI (optional)

Important points-

a. Court may extend time for filing WS in exceptional cases. Order 8 Rule 1 is merely
directory. This discretion should be exercised with caution.
b. Upheld the constitutionality of verification of pleadings via affidavit. Said that it is
necessary for procedural justice.
EX PARTE INJUNCTIONS-

1. Gujrat Bottling v. Coca Cola

3 pronged test for Interim Relief-

a. Prima facie case

There must be a bona fide dispute raised by the applicant which demands further
investigation and a decision on merits. The court must see whether it is possible to grant the
relief based on the evidence led.

b. Irreparable harm

The test is that if a final award of damages if the injunction is not granted would be an
adequate remedy, then an injunction should not be granted.

c. Balance of convenience

Balance of convenience must be in favour of the applicant. The harm caused to the applicant
in case of refusing relief must be greater than harm caused to defendant in granting it.

However, even if all of the aforesaid conditions are satisfied, the court may still refuse to
grant relief. The court will also look at the conduct of the parties and whether it was free from
mala fide.

2. Morgan Stanley v. Kartick Das (Not in course manual)-

Test for ex parte injunction-

1. Irreparable or serious mischief to plaintiff

2. Refusal would involve greater harm than grant
3. Time at which the plaintiff first had notice of the act complained
4. Whether plaintiff had acquiesced for some time and then it will not grant ex parte
injunction.
 5. Utmost good faith
6. Ex parte injunction would be for a limited period.
7. General 3-pronged test of interim injunction.

3. Wander v. Antox-

The appellate court will not interfere with the exercise of discretion by the court of first
instance and substitute its own discretion except where the discretion is shown to have been
exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled
principles of law regulating grant or refusal of injunction. Therefore, present case is not an
appropriate case where appellate bench could have interfered with the discretion exercised by
the Single judge as the Single judge had passed a reasoned order after hearing the parties and
considering the tests for granting injunction which Antox failed to fulfil.

Agricultural Produce Market Committee, Goundal & Ors. v. Girdharbhai Ramjibai

Chhaniyara (1997 SC)-

There cannot be a temporary injunction for a right that will arise in the future and also there
cannot be an order passed to restrain a person from contesting a suit.
SHORT NOTES QUESTIONS-

1. Temporary Injunction
- Interim order given u/ O/ 39 R.1 when there is a threat of wasting of property. Can be
mandatory or prohibitory.
- Distinguish b/w perpetual and temporary
- Ad-interim
- Continuing breach
- Give example
- Three-pronged test and other factors as well- Gujrat Bottling
- Discretion of Court and recording of reasons- Antox
- Ex-parte injunction- Morgan Stanley
- Breach of injunction
2. Set-off and Counter claim
- Order 8
- Set off is defence, counterclaim is sword- it is in the nature of a cross action.
- Set-off- Ascertained sum
- Amount in set off must be owed before suit, in counterclaim the claim must be due
before filing of WS.
- Set off only in money suits
- Convenience and to avoid multiplicity of proceedings
3. Res sub judice and Res judicata
- Sub judice only bars trial not suit
- Court can proceed despite sub judice under inherent powers
- Sub judice can be waived
- Decree passed under sub judice not a nullity
4. Modes of service of summons
- Order V.
- Personal or direct
- Service by court
 - Service by plaintiff
- Substituted service
- Service by post
- Other special cases (21-30)
5. Non-appearance of parties
- Order 9
- Dismissal of suit- 4 cases, and when can it be set aside or when can fresh suit be
instituted
- Ex parte decree- Rule 13
- Sufficient cause
- Principles of natural justice.
6. Mesne Profits
- Section 2(12)
- Test- What has defendant gained from such wrongful possession.
- It is a relief consequential to possession- Gurbux case
7. Plaint and WS
8. Necessary and Proper Party
- Order I

A necessary party, as the name suggests, is indispensable to the adjudication of a suit. There
are essentially two conditions to determine whether a party is a necessary party. They are –
(i) He is a party against whom relief is sought and (ii) it would be impossible to pass an
effective order without him. If a necessary party is not impleaded, the suit is liable to be
dismissed. The distinction between necessary and proper party was further explained by the
Apex Court in Mumbai International Airport v. Regency Convention. It held that a proper
party, unlike a necessary party, is not essential to deciding the matters in the suit, but whose
presence would help the court adjudicate effectively. He is not a person in favour of or
against whom a decree is to be made. Furthermore, the non-joinder of necessary party may be
fatal to a decree and will make it liable to be dismissed. However, this is not the case with a
proper party and the court can pass a valid decree even without impleading a proper party.

In certain cases, it may be the case that a party on the side of the plaintiff is a necessary party
but is unwilling to be impleaded. In such a case, summons are issued to the party and he
appears on the defendants side as a proforma defendant, even though he is a plaintiff for all
practical purposes.
 9. Rejection of plaint & Return of Plaint

Rejection of Plaint Return of Plaint

Rule 11 of Order VII deals with rejection of Rules 10-10B of Order VII deals with return
plaint. This provision is mandatory in nature of plaint. There is only one ground for
and provides 6 grounds in which the plaint return of plaint. Where the Court finds that
may be rejected by the court. They are- lack it has no territorial, pecuniary, or subject-
of cause of action, undervaluation of relief, matter jurisdiction to try the suit, it can
insufficient stamping, suit is barred by law, return the plaint to present it to the proper
plaint is not filed in duplicate, non- court where it should have been tried.
compliance with Order VII Rule 9. The
rejection is carried out as per Rule 12,
which stipulates that the judge must record a
reasoned order for rejection.
Rejection of plaint is a deemed decree as per Return of plaint does not amount to a
Section 2(2) of the code and is appealable. decree. As per Rule 10A(5), no appeal
would lie on an order of return where it is
made by an application of the plaintiff.
Appeal would only lie when the Court suo
moto makes an order of return.
Order VII Rule 13 stipulates that the The implication of a return of plaint and the
plaintiff is not precluded from filing a fresh procedure thereon is given in Rule 10A, and
plaint in the same court with the same cause the judge returning the plaint must make an
of action after a rejection. endorsement with respect to the date of
return, the name of the party presenting it
and the reasons for returning the plaint. The
suit is then deemed to commence when the
plaint is filed in the proper Court.
The grounds for rejection of plaint under A suit may only be returned for when the
Rule 11 are not exhaustive, and the Court court lacks jurisdiction.
may reject the plaint for being vexatious and
meritless as well (T. Arivandandam v. T.V
Satyapal).
Where a fresh plaint is filed after a rejection Where a plaintiff was bona fide litigating in
of plaint, the limitation period would be a Court without jurisdiction, that period of
computed based on the day on which the time will be excluded when computing the
fresh suit was filed. limitation period for initiating a subsequent
civil suit in a court of competent
jurisdiction.

10. Interrogatories and Discovery

11. Receiver
- Order 40.
- Appointed by court to preserve property in litigation when the court feels that neither
party should hold it.
- Extreme remedy.
- Duties and liabilities- Rules 3 & 4.
12. Admissions
13. Representative suit
- Order I Rule 8
- Commonality of interest
- Pramod P. Shah case.
14. Arrest and Attachment before Judgment
- Order 38
- Prevent mischief by defendant to prevent realisation of decree by disposal of property.
- S. 95- Arrest and attachment on insufficient grounds
- Discuss all the rules