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C.P.C

Interlocutory Applications

Meaning:

“Interlocutory application” means an application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for execution of a decree or order.

The Civil Rules of Practice and Circular Orders, Chapter I – Preliminary – Rule 2 (J) defines: “Interlocutory application” means an application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for
execution of a decree or order. Chapter V: deals with (A) Interlocutory proceedings – Rule 53 to 55, 58 and 59 of Civil Rules of Practice further deals with about the form, contents, separate application for each distinct prayer and service of notice to other parties and every interlocutory application shall be supported by an affidavit and true copies of application, affidavit and the documents shall be furnished to the opposite party or counsel.

Types of Interlocutory Applications 

There is a wide variety of types of interlocutory applications. Common types include:

Injunctive Relief

Orders that stop the other party from doing something, like terminating a contract or completing a sale purchase. They are usually urgent, requiring the orders by a certain deadline.

Particulars

Orders to compel a party to provide particulars (details) that the other party has requested, seeking clarification of information in legal documents, including a statement of claim or defense.

Discovery

Orders to compel a party to provide certain documents sought by the other party through the discovery process. Therefore, an interlocutory application seeks orders that the documents should be discovered.

Subpoenas

Subpoenas are orders to determine whether a party can ask a third party to provide certain documents. As above, the other party may object to documents sought by the other party because they are not relevant to the proceedings.

Interrogatories

Orders to compel the other party to answer certain questions, required to determine a position on a matter in dispute. He questions must be necessary and to help provide a fair trial.

Medical Examination

Orders that one party submit to a medical examination. For example, this may be sought where the other party has concerns about the medical condition of that party and how it may impact the matters in dispute.

Setting Aside a Default Judgment

Orders to set aside (overturn) a judgment ordered by the court when the other side fails to lodge a defence by the deadline.

Steps to Make an Interlocutory Application

You usually make interlocutory applications after issuing court proceedings but before the final hearing date. The procedure to make an interlocutory application is below. 

1. Complete an Application Form

An interlocutory application usually starts when the party seeking the orders files an application form. These vary among states and territories, for example, in New South Wales, it will be a Notice of Motion. 

2. Provide Evidence 

The application must be accompanied by evidence supporting your request. For instance, this is usually an affidavit (verified statement) of the party seeking the order and will include relevant documents. 

3. File and Serve

You must file the application form and supporting affidavit with the court and then serve it personally on the other party, or via the other party’s lawyers.

4. Ex Prate Hearing

If the orders you seek are urgent, you may request that the interlocutory hearing be ‘ex parte’, meaning without the other party attending. 

5. Interlocutory Hearing

If the other party does not consent to the orders sought, the court will list it for an interlocutory hearing. Depending on the orders sought, this may be short and conducted in a few hours, or a full day or more. However, both parties will have the opportunity to make their arguments and question any witnesses if relevant. 

6. Preparation and Hearing

Usually, your barrister (or counsel) will attend the hearing. Preparation will involve written submissions setting out your arguments with reference to any evidence filed with the interlocutory application. Furthermore, other helpful preparation legal documents might be a chronology, setting out a timeline of relevant events.

ENQUIRIES AND ORDERS IN INTERLOCUTORY APPLICATIONS:

Temporary injunctions

Order 39 of the Code of Civil Procedure, 1908 read with Section 94 (c) of the same code deals with the granting of temporary injunctions. Suitable injunctions or interim orders of the like nature can be granted where an easement is actually disturbed
or in the case of proceedings before the insolvency Courts or in the case of proceedings under the Guardians and Wards Act, 1890 or in the case of certain proceedings under Companies Act or in the case of proceedings under certgain State Acts or the rules framed thereunder or in different proceedings, under the Code of Criminal Procedure, 1973 or even by High Courts and Supreme Court in appropriate proceedings, certain statutes in certain proceedings, like the election proceedings specifically prohibit the granting of injunctions.
An injunction is a Judicial process whereby a party is ordered to refrain from doing or to do particular act or thing. In the former case it is called a restrictive injunction and in the later a mandatory injunction. Injunction may be either final remedy obtained by a suit or a preliminary and interlocutory relief granted while the suit is pending. In the first case it is a decree in the second an order or writ. Whatever be its forms, decree or order, the remedy by ordinary injunction is wholly preventive, prohibitory
or protective. An injunction is a writ framed according to the circumstances of the case commanding an act which the Court regards as essential to Justice or restraining an act which it esteems contrary to equity and good conscience.

An injunction is a remedial writ which Court issues for the purpose of enforcing their equity jurisdiction. Injunction is writ commonly used by Courts of equity as incident to enforcement of its commands and decrees. An injunction is an order of the Court granted for the purpose of restraining the doing, continuance or repetition by the person enjoined, his servants or agents of some wrongful act which constitutes an infringement of a legal or equitable right as for instance, a breach of contract.

Injunctions are often classified into prohibitory or mandatory injunctions according as whether they restrain or require the performance of the act which is in question. An injunction is a specific order of the Court forbidding the commission of a
wrongful course of action already began. Injunctions are a form of equitable relief and they have to be adjusted in
aid of equity and justice to the facts of each particular case.

The object of granting an interlocutory injunction is to preserve the matter pending the trial. Even a mandatory injunction can be granted on an interlocutory application but such power should be exercised by the Court sparingly and with great care
and caution. The jurisdiction to grant preventive relief may primarily rest upon contractual obligations between the partners the violation of which will be prevented to avoid irreparable injury and vexatious or interminable litigation. Injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner of the property.

An injunction granted pendente lite until the disposal of the suit or further orders will end in any case on the disposal of the suit or any earlier date on which further orders may be passed. The words until further orders do not extend its duration beyond
the date of decree. (Balbahadur Vs Bala,AIR 1924 Mad.178). Discretion must be judicial and arbitrary: While granting or refusing an injunction, the Courts have to take into consideration all the circumstances of the case. Normally the discretion exercised by the trial Court will not be interfered with by a Court of appeal unless such erroneous exercise of jurisdiction resulted in grave mis-carriage of justice. (Shadi vs. Anrup Singh, ILR 112 All 436)

ATTACHMENT BEFORE JUDGMENTS


(Order 38 Rule 5 of Code Civil Procedure deals with attachment before judgments) The general rule is that a plaintiff must first obtain a decree and then execute the same. The question of arrest of the debtor or attachment of the property would arise at the stage of execution of the decree. However, under special circumstances which are specified in Rules 1 and 5 of Order 38 Code of Civil Procedure the creditor can take out arrest or attachment against his debtor even before the judgment.
Order 38 Rule 5: Where defendant may be called upon to furnish security for production of property – (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, –
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to
produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plainiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
(4) If an order of attachment is made without complying with the provisions of sub-rule
(1) of this rule, such attachment shall be void.

(1) Court while exercising its jurisdiction under Order XXXVIII, Rule 5 of CPC is required to form a prima facie opinion at that stage. (Rajendran vs. Shankar Sundaram, AIR 2008 SC 1170)

Appointment of Commissioners

The provisions relating to appointment of Commissioner is set out in Civil Procedure code. Under “Incidental proceedings” section 75 and Order XXVI Rules 1 to 22 of the Code deal with it

The aspect of Advocate Commissioner is dealt under section 75 and Order XXVI rule 9 of Code. Civil Rules of Practice from rules 134 to 141 also deal with it.
As per section section 75 of the Code subject to conditions and limitations as may be prescribed, the court may issue a commission in following aspects namely –
a) To examine any person;
b) To make a local investigation;
c) To examine or adjust accounts; or
d) To make a partition;
e) To hold a scientific, technical, or expert investigation;
f) To conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
g) To perform any ministerial act.” Whereas Order XXVI rule 9 specifically deal with Commissions to make local investigation. The rule states that in any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any Menes profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court:

Receivers


The court may appoint a receiver in a variety of circumstances. An appointment may be made to, for example, preserve assets where there is a dispute within a partnership or a company pending a decision on the matters of dispute. This appointment is intended to maintain the value of the assets so that they may be realised for the benefits of all parties to the dispute.
The court may appoint a receiver where assets subject to a charge have been transferred without the consent of the charge-holder or to in regard to a proceeds of crime order. The court may appoint a receiver on behalf of a debenture holder or judgment creditor to enforce payment.
The court’s power to appoint a receiver It is provided under Order XL in Code of Civil Procedure, 1908. contains 5 rules, and also provided in section 94 supplemental proceedings – in order to prevent the ends of justice from being defeated the court may, if it is so prescribed .
“A receiver”, in the language of High, “is an indifferent (American expression for impartial) person between the parties to a cause, appointed by the Court to receive and preserve the property or fund in litigation “pendentie lite’, when it does not seem reasonable to the Court that either party should hold it. He is not the agent or representative of either party to the action, but is uniformly regarded as an officer of the Court, exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit of all parties in interest. Being an officer of the Court, the fund or property entrusted to his care is regarded as being in ‘custodia legis’, for the benefit of who-ever may finally establish title thereto, the Court itself having the care of the property by its receiver, who is merely its creature or officer, having no powers other than these conferred upon him by the order of his appointment, or such as are derived from the established practice of Courts of equity.

The Code of Civil Procedure does not define the term “Receiver”. But it is generally understood as “A court appointed person who is appointed because the court thinks that neither party should be in possession of the property in dispute”.

Kerr defines a receiver as “an impartial person appointed by the Court to collect and receive, pending the proceedings, the rents, issues and profits of land, or personal estate, which it does not seem reasonable to the Court that cither party should collect or receive, or for enabling the same to be distributed among the persons entitled.”

Simply stated, wherever the Court is of the opinion that it would not be reasonable for either of the parties to hold the estate which is the subject matter of the suit, then, till it is disposed, the Court may appoint an independent and impartial third party who will take over such property. He will manage this property as a reasonable man would and is responsible for the maintenance of the property.

It is to be noted, that the receiver acts neither on behalf of the plaintiff nor the defendant but is an officer of the court who acts in general benefit of the property.

In Anthony C. Leo v. Nandlal Balakrishnan AIR 1996 SC 1323 the Apex Court described a receiver as an impartial/ neutral person. He is an agent of the Court. The property in the custody of the deceiver is custodio legis i.e., in the Custody of law or the court. The receiver has all powers as the real owner of the property, but he always acts under the supervision of the Court.

Case Laws:

The language of Order 39, Rule 1, C.P.C is wide enough to include an order in the form of a mandatory injunction upon an interlocutory application bu such a power however has to be exercised in very rare cases and with due care and caution.
(Suranna vs. Somulu, AIR 1969 AP 368)

The granting of temporary injunction being a discretionary relief, the conduct of the parties also always has been considered an important relevant factor in deciding whether temporary injunction is to be granted or not in the circumstances of particular case. (Johnson vs. Wyatt. 5 Beav 229 Gordon vs. Cheltenliam Railway, AIR 1996 Del. 1)

Where one of the coparceners attempts to waste the property by committing a wrongful act or makes use of the property in such a way which may amount to ouster, in such a case temporary injunction can be granted. (Anant vs. Balvant, (1985) ILR 19 Bom. 269)

When a suit which was dismissed for default is restored to file after setting aside the order of dismissal for default all the interlocutory orders made before dismissal of the suit are automatically restored. (Mutyalu vs. Rajyalaxmamma, AIR 1978 AP 316)

Conclusion:

The meaning of the word ‘Interlocutory application’ can be understood that an application to the court in any suit, appeal or proceeding already instituted in such court,other than a proceeding for execution of a decree or order. Section 141 of CPC
delas with miscellaneous proceedings. Every Interlocutory Application need not be tried as a suit under the guise of Sec. 141 CPC. Sec.94 CPC deals with Supplementary Proceedings. As has been discussed above, Chapter-V, Rule 60 of the Civil Rules of Practice makes it clear that the facts that are necessary for adjudication of the interlocutory applications are to be proved by affidavits. An interlocutory order is an order that does not finally determine the rights, duties and obligations of the parties to a proceeding. Interlocutory orders may take various shapes depending upon the requirement of the respective parties during the pendency of the suit.


Related Question:

What is an interlocutory application?

It is an application to ask the court to make certain orders. Court orders are commands by a judge, declaring something to be done or prohibiting something from being done. 

When should an interlocutory application be used?

You can use an interlocutory application, such as an interlocutory injunction, to help keep a case on track or to protect your rights. They stop parties from acting unethically, and parties often use them when one party believes the other has not complied with their court procedure obligations. 

What is an interlocutory hearing?

An interlocutory hearing is held if a party does not consent to the orders sought by an interlocutory application. The hearing allows for both sides to present their arguments so that the judge can make a decision. 

Written Statement Order VIII

Order VIII deals with rules relating to written statement. The term written statement has not been defined in the Code. However, it means the pleadings of the defendant wherein defendant deals with the facts alleged in the plaint. In it, he also pleads new facts and set up counter claim and set-off. All the general rules of pleading mentioned in Order VI apply to written statement.

Who may file written statement?

Written statement is filed by the defendant or his duly authorized agent. If there are several defendants a common written statement can be filed by them. In such case it must be signed by all of them. As far as verification is concerned, it can be verified by any one defendant.

Time limit for filing written statement:

Order VIII Rule 1 provides that the defendant shall within 30 days from date of service of summons file a written statement. Proviso to Order VIII Rule 1[inserted vide Amendment Act of 2002] states that if the defendant fails to file written statement within a period of 30 days from date of service of summons. Therefore, the outer limit of filing the written statement according to Order VIII Rule 1 is 90 days from date of service of summons.

Characteristics of the written statement

  • The defendant has to appear in court on the date mentioned in the summons.
  • Before the date of appearing in the court, the defendant needs to file the written statement in the court. 
  • The statement should deny or accept the allegations imposed on him. Any allegations which are not answered by the defendant are deemed to be accepted by the defendant. 
  • The statement must contain the verification of the defendant by stating that the content written in the statement is true and correct as per the knowledge of the defendant. 
  • If the defendant fails to submit the written statement before 30 days, he can seek the court to extend the time, in that case, the court may extend the time period upto 90 days.

Effects of failing to submit a written statement

As per Order VIII Rule 10, if any person who is required to file a written statement does not do so within the time period prescribed or permitted by the court, the court shall pronounce the judgement against him or issue an order, and a decree shall be drawn up on the pronouncement of the judgement. The time period prescribed for the filing of the written statement in Rule 1 shall not be extended by the court. 

The court has two alternatives when a written statement has not been filed: 

Granting of adjournment: The court can grant an adjournment to the defendant. This grants more time to the defendant to file a written statement. However, no more than three adjournments can be given to a party to the suit as per Order VII Rule 1 of the Code. If the party still fails to file the written statement, the court can move on to the next alternative, which is the ex parte decree. 

Pass an ex parte decree: The court can pass an ex parte decree against the defendant. This is not mandatory but the court has the discretion to do so. This is usually avoided by the court in the first instance. However, if the party fails to file a written statement in spite of many adjournments, the court can resort to passing an ex parte decree against the defendant. 

Now that we know the consequences of not filing the written statement during the prescribed time period, let us look at the provisions of appeal and revision. 

Appeal and revision

Order VIII Rule 10 provides that a decree will be drawn upon such judgement. Following that, an appeal would lie under Section 96. As per Section 115, the High Court can adjudicate upon such a decree through revision. When a decree is appealable, the aggrieved party cannot apply for revision. 

Now, let us look at the inherent powers of the court with regard to the same.

Inherent powers of the court 

Section 151 of the CPC lays down the inherent powers of the court. As per this Section, no provision in the Code acts as a restriction on the power of the court to issue an order in the interest of justice or for the purpose of preventing the abuse of the power of the court. 

This Section acts as a limitation to Order VIII Rule 10 of the Code. This provision allows the courts to extend the period of limitation for filing the written statement. However, this is only allowed in exceptional situations that arise from causes outside the control of the defendant. This power cannot be used in ordinary cases. 

Now that we are familiar with the provisions of the code, let us look at some important decisions by the judiciary regarding the same matter

In Badat & Co. v. East India Trading Co. AIR 1964 SC 538, the Supreme Court held that the combined effect of Rule 3, 4 & 5 is that every allegation in the plaint should be traversed. Written statement should answer the point in substance. If the denial is evasive the fact shall be taken to be admitted.

Whether a written statement can be amended:

As per the requirement to Order 6, Rule 17 of the CPC provides the trial of the Suit has not commenced. The Court can allow an amendment of the written statement at any stage of the proceedings.

But in this way defendant can not allow being allowed to change completely the case made in the written statement and substitute an entirely different and new case. And also be note that amendment could not be permitted at such a late stage

When can an additional written statement be filed:

In the case of Jyotish Chandra Sen Vs. Rukmini Ballav Sen and other, AIR 1959 CALCUTTA 35, The Calcutta High Court held that pursuant to provision order 8 Rule 9, the Court’s leave may accept an additional written statement on such terms as the Court may deem appropriate. One of the requirements is that a certain amount will be paid within a fixed period, that is, an act allowed by the Statute, and when the Court sets a time limit for performing that act, Section 148 applies in terms.

The Supreme Court in Kailash v. Nankhu AIR 2005 SC 2441, held that outer time limit of 90 days for filing the written statement is not mandatory. The court held that though the provision is couched in a negative language, it is directory and permissive not mandatory or imperative. It provides that process of justice may be hurried but the fairness which is the basic element of justice cannot be permitted to be buried.

The Supreme Court in SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd.(2019) 12 SCC 210., held that proviso added by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 is mandatory and no written statement can be taken on record in commercial suits, if it is not filed within 120 days from the date of service of summons. Clear, definite and mandatory provisions of Order V Rule 1r/w Order VIII Rule 1 and 10 [as amended by Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015] cannot be circumvented by recourse to inherent power under Section 151 of the Code.

Following are the differences between a plaint and a written statement:-

S. No.PLAINTWRITTEN STATEMENT
1.The document stating the cause of action and other necessary details and particulars in support of the claim of the plaintiff is called the “plaint”.The defence statement containing all material facts and other details is called the “written statement”.
2.Plaint is filed by the plaintiff stating its facts and relief to be claimed by the plaintiff.The written statement is filed by the defendant as an answer to the contentions of the plaintiff and it contains all materials and other objections which the defendant might place before the court to admit or deny the claim of the plaintiff.
3.Plaint is the first stage in a civil suit setting the legal machinery in motion.The defendant is required to file a written statement of his defense within 30 days from the date of receipt of the copy of the plaint. This time period is extendible to 90 days.
4.A plaint is usually divided in parts such as a heading, the cause title, the body, the prayer and signature and verification of the plaintiff.A general denial of grounds alleged in the plaint is not sufficient and denial has to be specific and must be substantiated with documentary evidence wherever possible.
5.Plaint should contain name, description and residence of defendant.Every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading shall be deemed to be admitted.
6.Order VII of Civil Procedure Code, 1908 deals with plaint.Order VIII of Civil Procedure Code, 1908 deals with written statement.

Drafting a Written Statement

Following are the important points which should be kept in mind while drafting a written statement:—

  1. If the plaint has raised a point/issue which is otherwise not admitted by the opposite party in the correspondence exchanged, it is advisable to deny such point/issue and let the onus to prove that point be upon the complainant. In reply, one has to submit the facts which are in the nature of defence and to be presented in a concise manner.
  2. Attach relevant correspondence, invoice, challan, documents, extracts of books of account or relevant papers as annexures while reply is drafted to a particular para of the plaint;
  3. The reply to each of the paras of the plaint be drafted and given in such a manner that no para of the plaint is left unattended.
    Vinod     Kumar v. Surjit Kumar AIR 1987 SC 2179
    “The pleadings are foundations of a case”.
  4. The reply/written statement should be supported by an Affidavit of the opposite party. The Affidavit to be sworn by any of the persons aforesaid and duly notorized by an Oath Commissioner. The court is bound to see in every case that the pleadings are verified in the manner prescribed and that verifications are not mere formalities.
  5. The reply along with all annexures should be duly page numbered and be filed along with authority letter if not previously filed.
  6. At the time of filing of reply, attach all the supporting papers, documents, documentary evidence, copies of annual accounts or its relevant extracts, invoices, extracts of registers, documents and other relevant papers.
  7. I any of the important points is omitted from being given in the reply, it would be suicidal as there is a limited provision for amendment of pleadings as provided in Order 6, Rule 17 CPC, and also the same cannot be raised in the Affidavit-in-Evidence at the time of leading of evidence.
    Mrs.     Om Prabha Jain v. Abnash Chand Jain AIR 1968 SC 1083; 1968 (3) SCR
    “It is a settled law if any point has not been pleaded in the pleadings, no evidence could be led on that point. General rule is that no pleadings, no evidence.”
  8. If a party is alleging fraud, undue influence, coercion or mis-representation, general allegations are insufficient. Party must state the requisite particulars in the pleading.
  9. It is well settled that neither party need in any pleadings allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied.
  10. In every pleading, one must state specifically the relief which the party is claiming from the court or tribunal or forum. All possible relief as would be permissible under the pleadings and the law.

Conclusion:

A written statement is Defendant’s first opportunity to raise his point of view in the suit on the matter at issue. But if, for whatever reason or circumstances, Defendant did not file a written statement, that would not indicate that he had admitted the fact pleaded by the plaintiff. A written statement is the statement of the defendant in his defence in which he either admits the claims or denies the facts alleged by plant leaf in his plaint. The defendant can State New facts of the case and legal objections against the claim asked by the plaintiff. 

Plaint under C.P.C

 INTRODUCTION 

The Plaint is a document for instituting a suit in the proper court of law.it is very important, drafted by the advocate with consultation of his client.under section 26 of the c.p.c every suit shall be instituted by the presentation of the plaint.In plaint, the plaintiff should allege facts about his cause of action. A plaint which is presented to a civil court of appropriate jurisdiction contains everything, including facts to relief that the plaintiff expects to obtain.

 Plaint is defined in order 7 of CPC. Rules 1 to 8 of order relate to particulars in a plaint. Rule 9 lays down procedure on plaint being admitted. Whereas rules 10 to 10-B provide for the return of plaint, and appearance of parties, rules 11 to 13 deal with rejection of plaint. Rules 14 to 17 contain provisions for the production of documents. Order 7should be read with section 26 of the code.

Every plaint shall contain some particulars 

  • Name of the court in which the suit is brought .
  • The name ,description ,and place of residence of the plaintiff.
  • (Here description means age,fathers name ,total particulars of plaintiff)
  • The name ,description and place of residence of the defendant.
  • In case more than one plaintiff the name of each concerned plaintiff should be given numbering as 1,2,3 .
  • In case the plaintiff ,defendant is a minor or a person of unsound mind,that statement is also mentioned here.
  • The facts which are constituting the cause of action ,and when it arises.
  • Court jurisdiction 
  • The relief what the plaintiff is claiming
  • The statement of the value of the subject matter of the suit for the purpose of jurisdiction and court fees admits 
  • Relief or prayer.( according to rule 1(g) of order v11 0f the cpc the plaint shall contain the relief which the plaintiff claims. In a civil suit different kinds of reliefs can be claimed.
  • Ex:recovery of debt ,damages,possession & declaration of title.declaration of any right for specific performance.,injunction,rendering of account,appointment of receiver).:
  • Signature &    verification .
  • (as per order v1, rule14 of the cpc every plaint shall be signed by the plaintiff and his advocate.in case of plaintiff is illiterate and cannot make signature, on that time he may put his thumb mark on the plaint)
  • Who can verify 
  1. By the party ( in case single)
  2. By one of the party ( in case of several parties)
  3. By a third person who is proved to the satisfaction of the court
  4. In case suit against the corporation —by the secretary or any director or principal officer of the corporation .
  5. In case suit against a minor or disabled person —-verified by any authorized person or guardian ,or next person who may become plaintiff.
  6. In case an idol—— a trustee or legally authorized person or a representative appointed under order 1 rule 8 of the cpc. .

Stages of civil suit 

  • Presentation of plaint 
  • Service of notice on  defendant  
  • Appearance of parties 
  • Ex-parte decree
  • Interlocutory proceedings 
  • Filing of written statement by defendant
  • Production of documents by parties
  • Examination of parties 
  • Discovery & inspection 
  • Admission of evidence 
  • Framing of issues by court 
  • Attendance of witnesses
  • Hearing of suits //examination of witnesses 
  • Arguments
  • judgment//decree
  • Appeal ,review,revision 
  • Execution of decree
  • attachment .

Case Laws:

In R.K. Roja v. U.S.Rayadu & Anr. (2016) 14 SCC 275, the Hon’ble Supreme Court held that “The application under Order VII Rule 11 may be filed at any stage but once the application is filed the court has to dispose of the same before proceeding with the trial”.

Part rejection of Plaint: The Supreme Court in Madhav Prasad Aggarwal v. Axis Bank, (2019) 7 SCC 158 held that plaint can either be rejected as a whole or not at all. It is not permissible to reject plaint qua any particular portion of a plaint including against some of the defendant(s) and continue the same against the others.

The Supreme Court in Mayar H.K. Ltd. v. Owner and Parties, Vessel M.V. Fortune Express, AIR 2006 SC 1828 held that grounds of rejection of plaint specified in Rule 11 are not exhaustive. A plaint can be rejected on other relative grounds also. Where the plaint is found to be vexatious or meritless, not disclosing a clear right to sue, the court may reject the plaint.

Additional particulars of a Plaint

  1. ORDER VII RULE 2- it has been stated under order VII rule 2 that the exact amount of money should be stated by the plaintiff in the plane which is to be obtained from the defendant in a case. Indications, where the exact amount of money to be obtained, cannot be calculated, an approximate amount shall be mentioned in figures by the plaintiff in the plaint.
  2. ORDER VII RULE 3– it has been stated under order VII rule 3 that in the cases where the subject matter of the plaint is an immovable property, such property must be described sufficiently in order to identify it in the ordinary course.
  3. ORDER VII RULE 3 – it has also been stated under order VII rule 3 that when the suit has been initiated by the plaintiff, it should be proved that yah sufficient interest in doing so.
  4. The involvement of the defendant should be adequately shown in the plaint, including his concerned interests.
  5. If the suit has been filed by the plaintiff after the period of limitation, the plaintiff must provide a sufficient reason to obtain an exemption under the law for such delay.

When a Plaint can be rejected?

As per order VII rule 10, records have been empowered to return the plaint under the circumstances when it does not have the proper jurisdiction to entertain such plaint.

The quotes can return the plaint for presentation before the appropriate Court when it is convinced that the trial court itself did not possess the appropriate jurisdiction to entertain the plaint in the first place.

Once the appellate codes are satisfied that the civil suit has been decided by the trial court without proper jurisdiction, such decree passed by the trial court would be considered nullified.

Grounds for rejection of plaint

  • Where it does not disclose a cause of action .
  • Where the relief claimed is undervalued 
  • No stamping 
  • Time barred by any law.
  • Where it is not filed in duplicate

When can a Plaint be rejected by the court of law?

A plaint can be rejected on the following grounds—

  1. The non-disclosure of the cause of action
  2. The relief sought by the party is undervalued and the party is unable to rectify it.
  3. The documents are not properly stamped and the party fails to do so.
  4. Where the suit is barred by law in some way.

Conclusion


A plaint is important in the sense that it is the first and foremost step towards instituting the suit. Therefore, due care has to be taken to ensure that the procedure required for the initiation of plaint has been duly recognized. It is mandatory to follow protocol by stating the relevant facts, the necessary details, refrain from providing evidence and mention the kind of relief envisaged so that the plaintiff is duly benefited

Procedural Laws

Introduction

According to Article 21 of the Indian Constitutional Law, a person’s life and personal liberty may be taken away if only a “procedure established by law” (i.e., a legally valid law) is in place. However, the doctrine of procedural due process requires that this procedural law be “fair, just, and reasonable.” The phrase “Procedure Established by Law” refers to the requirement that the proper steps have been taken in order for a law to be properly passed by the legislature or other relevant entity.

Law can be further divided into two broad categories – I. Substantive laws and II. Procedural laws. They form the two major branches of law.

The law of procedure is the area of law that regulates the litigation process. It contains the regulations for starting and carrying out civil and criminal cases. The procedures by which a court hears and decides what happens in civil or criminal proceedings are known as procedural law. In the past, most people were familiar with substantive law, whereas individuals who presently practice law or who have served as judges have been more interested in procedural law. However, the courts have created laws and rules of evidence over time. But over time, the courts have created procedural law, including rules of evidence and procedure, which are primarily concerned with the fairness and transparency of the legal process.

I. Procedural Law

Adjective law, also known as procedural law, is concerned with the application of the law as it is governed and controlled by practice, process, and machinery. The administration of justice is greatly impacted by this law. The means by which society carries out its important objectives is procedural law. Procedural law is derived from constitutional law, laws passed by the legislature, written rules that law enforcement organizations issue for their employees and that, while not having the legal force of law, may result in internal sanctions if broken, and the rules and procedural guidelines established by the Supreme Court. Holland claims that although adjectival law largely deals with the rights and behaviour of individual litigants, it also directly addresses issues like the structure of courts and the duties of judges and sheriffs, which belong to public law. It comprises
of (i) jurisdiction (in the conflicts sense); (ii) jurisdiction (domestic sense) ; (iii) the action, including summons, pleadings, trial(including evidence); (iv) judgment; (v) appeal; (vi) execution.

Procedural Law is that law which prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a Suit. The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;Indian
Evidence Act, 1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits Valuation Act, 1887 are examples of Procedural Law in India.


The Procedural Law can be said, is a law that:

  • Lays down the rules with the help of which law is enforced
  • Relates to process of litigation and determines- what facts constitute proof of a ‘wrong’ or ‘Tort’.
  • In the context of administration of justice -the law of procedure defines the modes and conditions of the application of remedies to violated rights.
  • Are the adjective rules, prescribing the mode in which the State, as such a personality, may sue or be sued.
  • Provides for mechanism for: obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing.
  • It is the law of action that includes all legal proceedings, civil or criminal.

Kinds of Procedural laws:

  1. Law of Civil Procedure

Civil Procedural Law consists of the rules and standards which courts follows while conduct civil trials. These rules govern how a civil suit or case may be commenced, what kind of service of process (if any) is required, the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks must function. Civil actions concern with the judicial resolution of claims by private individual or group, companies or organisations against another and in addition, governments (or their subdivisions or agencies) may also be parties to civil actions. In India Code of Civil Procedure, 1908 consolidates and amend the laws relating to the procedure of the Courts of Civil judicature.

2. Law of Criminal Procedure

Law relating to criminal, Procedure provides or regulates the steps by which one that violate a criminal Statute is punished. Procedural Criminal Law can be divided into two parts, the investigatory and the adjudicatory stages. In the investigatory phase, investigation primarily consists of ascertaining of facts and circumstances of the case by police officers and arrest of suspect of criminal offence. The adjudicatory phase begins when with the trial of suspect for the alleged criminal conduct in the court of Law. In India Criminal Procedure Code, provides the procedure of getting the penal offences prosecuted and punished
by the criminal courts. It also lays down the details regarding the arrest, investigation, bail, jurisdiction, appeals, and revisions and compounding of offence etc with regards to the various offences.

Limitations of procedural laws

Procedural laws have certain drawbacks and limitations. 

  • Some of the procedural laws may impose strict time limitations which may either hasten or slow down the speed of the legal proceedings.
  • Any party who is unfamiliar with procedural laws may breach the guidelines. Though they may not affect the merits of the case, the failure to follow these guidelines may severely damage the chances of the party.
  • Procedural laws are constantly torn between arguments that judges should have greater discretion to avoid the rigidity of the rules. While the other argument is that the judges should have less discretion in order to avoid a result based more on personal preferences than the laws or the facts.

2. Substantive Law

The Substantive Laws are basically derived from Common, Statutory, Constitution and from the Principles found in judicial decisions following the legal precedents to cases with similar facts and situations. With the passage of time and creation
of new Statutes, the volume of Substantive Law has increased. For Example:- Penal Law, Law of Contract, Law of Property, Specific Relief Act, etc are Substantive Law

1Substantative Civil Law
The Civil Law includes any private wrong, a ‘Tort’, which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act. Substantative Law defines to charge the ‘Tort’. Substantative Civil Law also includes the Law of Contract- defines what is essential elements required for formation of contract; real property. The Indian
Succession Act, 1925 deals with Substantative Law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindu and Muslims in India. Other Acts that provides for Substantive Civil Law in India are Indian Contract Act, 1872;

Substantive Criminal Law
The Indian Penal Code (IPC) in India defines various penal offences and lists the elements that must be proved to convict a person of a crime. It also provides for punishment applicable to these offences. For example Substantive Criminal Law defines what constitutes ‘Murder’, ‘Robbery’, ‘Rape’, ‘Assault’ etc.

Justice Schroeder (Sutt v Sutt, 1969) explained in a family law case, that “It is vitally important to keep in mind the essential distinction between substantive and procedural law”. Substantive law creates rights and obligations, and is concerned with the ends which the administration of justice seeks to attain. It defines the actual law set down by the legislature, such as elements of a right, liability / obligation, crime, penalties to be imposed, rules of evidence, etc. Procedural law defines the manner in which the case proceeds and will be handled. In a criminal case, if the state violates a substantive rule of law, that is more likely to result in reversal of a conviction than a violation of criminal procedural law (unless the violation relates to a constitutional or legal protection).

Limitations of substantive laws

  • Elements of substantive laws sometimes act as an obstacle to access to justice. Some elements of substantive laws which are unfavourable to any litigant will constitute an impediment to justice.
  • Substantive laws can be used to limit and restrict the power and freedom of any individual.
  • The State possesses the uncontrolled and unlimited power to frame laws according to its own will which the judiciary is bound to follow. 

However, in India, the judiciary may strike down any law if it is unconstitutional.

SUBSTANTATIVE AND PROCEDURAL LAWS – RETROSPECTIVE OR PROSPECTIVE

In general, all Procedural Laws are retrospective unless a legislature specifies so.
In ‘Nani Gopal Mitra v. State of Bihar’ (AIR 1970 SC 1636), the Court declared that amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law the same cannot be reopened for the purpose of applying the new procedure. In ‘Hitendra Vishnu Thakur and others etc. etc. v. State of Maharashtra and others (1994) 4 SCC 602– the Court summed up the legal position with regard to the Procedural Law being retrospective in its operation and the right of a litigant to claim that he/she be tried by a particular Court, in the following words:
(i) A Statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to form and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in Substantive Law but no such right exists in Procedural Law.
(iv) A Procedural Statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A Statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.

In Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa’ (2009) 4 SCC 299 the Court relied upon the observations made by Justice Benjamin N. Cardozo in his famous compilation of lectures The Nature of Judicial Process – that “ in the vast majority of cases, a judgment would be retrospective. It is only where the hardships are too great that retrospective
operation is withheld.”

EQUIVALENT- PROCEDURAL AND SUBSTANTIVE RULES/PRINCIPLES

According to Salmond, although the distinction between Substantive Law and Procedural Law is sharply drawn in theory, there are many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules
of Substantive Law. Of these equivalent Procedural and Substantive principles there are at least three classes as discussed below:

  1. An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. e.g. the Rule of Evidence that a Contract can be proved only by writing corresponds to a Rule of Substantive Law that a Contract is void unless reduced to writing.
  2. Conclusive evidential fact is equivalent to and tends to take the place of the fact proved by it. For example:
    A child under the age of eight years is incapable of criminal intention is a rule of evidence, but differs only in form from the substantive rule that no child under that age is punishable for a crime.

The acts of a servant done about his master’s business are done with his master’s authority is a conclusive presumption of law, and pertains to procedure; but it is the forerunner and equivalent of our modern substantive law of employer’s liability.
A ‘Bond’ (that is to say, an admission of indebtedness under seal) was originally operative as being conclusive proof of the existence of the debt so acknowledged; but it is now itself creative of a debt; for it has passed from the domain of procedure into that of Substantive Law.

  1. The limitation of actions is the procedural equivalent of the prescription of rights. The former is the operation of time in severing the bond between right and remedy; the latter is the operation of time in destroying the right.

Procedural laws are also known as ‘Adjective laws’. In absence of substantive laws, procedural laws cannot be framed. Similarly, without procedural laws, substantive laws cannot be applied fairly and properly. Both the laws are equally important and one could not be applied effectively in absence of the other law. 

In the case of  Commissioner of wealth tax, Meerut V Sharvan Kumar Swarup & Son’s 1994 210 ITR 886 (SC) , the Supreme Court of India made the distinction between substantive and procedural laws clear.  The Court defined substantive laws as the laws which fix duties and establish rights and responsibilities among and for natural or artificial persons, while procedural laws are those which prescribe the methods in which such rights and responsibilities may be exercised and enforced respectively

Differences between substantive laws and procedural laws

TopicSubstantive lawsProcedural laws
Subject matterSubstantive laws deal with the legal rights and obligations of the individuals among themselves and towards the state.Procedural laws describe the ways and methods following which substantive law is enforced.
ObjectiveThese laws control and govern the rule of law as a whole.Procedural laws exclusively deal with the proceedings in the court and the methods to start a legal case.
Context of applicationSubstantive laws are applied only in legal contexts.Procedural laws are applied in both legal and non-legal contexts including proceedings of litigation.
RegulationSubstantive laws are regulated by the Acts of Parliament or governmental implementations.Procedural laws are regulated by statutory laws only.
CapacitySubstantive laws have individual capacities to decide the course of any legal proceedings. Procedural laws only can dictate the paths any legal proceeding should follow. 

Conclusion:

We can conclude that the substantive law defines the rights and duties, while procedural law provides the machinery or mechanism for enforcing the rights and duties. Both substantive and procedural laws are inevitable components of law of any civilized society. One without the other has neither any useful and meaningful existence nor any significance as well. Both, substantive law and procedural law, are mutually reinforcing and one acquires greater meaning and validity in presence of the other.

The Substantive and Procedural laws are the two important branches of Law. The Substantive Law is a Statutory law that defines and determines the rights and obligations of the citizen to be protected by law. Procedural Law or Adjective Law deals with the enforcement of Law that is guided and regulated by the practice, procedure and machinery. Substantative Law also defines the crime or ‘wrong’ and also their ‘remedies’; determines the facts that constitute a wrong -i.e. the subject-matter of litigation; in the context of administration of justice. the substantive law defines the remedy and the right; includes all categories of Public and Private Law. It includes both Substantive Civil and Criminal Law.
Procedural Law lays down the rules with the help of which law is enforced; determines what facts constitute proof of a wrong; in the context of administration of justice –The Procedural Law defines the modes and conditions of the application of remedies to violated rights; provides for mechanism for obtaining evidence by police and judges, conduct of searches, arrests, bail, and presentation of evidence at trial and process of sentencing. It is the law of action that includes all legal proceedings, Civil or Criminal.

PLAINTIFF

The  Plaint is a document for instituting a suit in the proper court of law.it is very important, to draft by the advocate with the consultation of his client. under section 26 of the c.p.c, every suit shall be instituted by the presentation of the plaint. In the plaint, the plaintiff should allege facts about his cause of action. A plant that is presented to a civil court of appropriate jurisdiction contains everything, including facts to relief that the plaintiff expects to obtain.

The plaint is defined in order 7 of CPC. Rules 1 to 8 of order relate to particulars in a plaint. Rule 9 lays down the procedure for plaint being admitted. Whereas rules 10 to 10-B provide for the return of plaint, and appearance of parties, rules 11 to 13 deal with rejection of the plaint. Rules 14 to 17 contain provisions for the production of documents. Order 7should be read with section 26 of the code.

Every plant shall contain some particulars 

  • Name of the court in which the suit is brought.
  • The name, description, and place of residence of the plaintiff.
  • (Here description means age, fathers name, total particulars of plaintiff)
  • The name, description, and place of residence of the defendant.
  • In the case of more than one plaintiff, the name of each concerned plaintiff should be given numbering as 1,2,3.
  • In case the plaintiff or defendant is a minor or a person of unsound mind, that statement is also mentioned here.
  • The facts which are constituting the cause of action, and when it arises.
  • Court jurisdiction 
  • The relief what the plaintiff is claiming
  • The statement of the value of the subject matter of the suit for the purpose of jurisdiction and court fees admits 
  • Relief or prayer. ( according to rule 1(g) of order v11 0f the CPC the plaint shall contain the relief which the plaintiff claims. In a civil suit, different kinds of reliefs can be claimed.
  • Ex: recovery of debt, damages,possession & declaration of title. declaration of any right for specific performance., injunction, rendering of account, the appointment of a receiver).:
  • Signature &    verification .
  • (as per order v1, rule14 of the CPC every plaint shall be signed by the plaintiff and his advocate. In case of the plaintiff is illiterate and cannot make a signature, on that time he may put his thumb mark on the plaint)
  • Who can verify 
  1. By the party ( in case of single)
  2. By one of the parties ( in case of several parties)
  3. By a third person who is proved to the satisfaction of the court
  4. In case suit against the corporation —by the secretary or any director or principal officer of the corporation.
  5. In case suit against a minor or disabled person —-verified by any authorized person or guardian, or next person who may become a plaintiff.
  6. In case an idol—— a trustee or legally authorized person or a representative appointed under order 1 rule 8 of the CPC. .

Grounds for rejection of plaint

  • Where it does not disclose a cause of action.
  • Where the relief claimed is undervalued 
  • No stamping 
  • Time is barred by any law. 
  • Where it is not filed in duplicate.

.

WRITTEN STATEMENT

 Actually, it is a pleading of the defendant in the answer of the plaintiff led by the plaint against him. It is a reply statement of the defendant in a suit specifically denying the allegations made against him by the plaintiff in his plaint. The provision regarding the written statement has been provided in the Code of Civil Procedure, 1908.

Who may be written statement:

A written statement may be filed by the defendant or by his duly authorized agent. In the case of more than one defendant, the common written statement led by them must be signed by all of them. But it is succinct if it is verified by one of them who is aware of the facts of the case and is in a position to lead an affidavit. But a written statement led by one defendant does not bind other defendants.

The time limit for written statements:

A written statement should be made within thirty days from the service of the summons on him. The said period, however, can be extended up to ninety days,(Rule -1). A defendant should present a written statement of his defense in the said period.

Particulars: Rules 1-5 and 7-10

 Before proceeding to draft a written statement it is absolutely necessary for the defendant to examine the plant carefully.

New facts, such as the suit is not maintainable, or that the transaction is either void or voidable in law, and all such grounds of defense, if not raised, would take the plaintiff by surprise, or would raise issues of fact not arising out of the plaint, such as fraud, limitation, release, payment, performance or facts showing illegality, etc. must be raised. (Order 8 Rule 2)

It is not succinct for a defendant in his written statement to generally deny the grounds alleged by the plaintiff, but he must deal especially with each allegation of fact which he does not admit, except for damages

. The denial should not be vague or evasive. Where a defendant wants to deny any allegation of fact in the plaint, he must do so clearly, especially and explicitly, and not evasively or generally

Where the defendant relies upon several distinct grounds of defense or set-o or counterclaim founded upon separate and distinct facts, they should be stated separately and distinctly.

Any new ground of defense which has arisen after the institution of the suit is a presentation of a written statement claiming a set-o or counterclaim may be raised by the defendant or plaintiff in his written statement as the case may be

.If the defendant fails to present his written statement within the time permitted or relaxed by the court, the court will pronounce the judgment against him or pass such order in relation to the suit as it thinks it, and a decree will be drawn up according to the said judgment.

JURISDICTION AND  KINDS

In simple words, jurisdiction can be defined as the limit of judicial authority or the extent to which a court of law can exercise its authority over suits, cases, appeals, and other proceedings. The rationale behind introducing the concept of jurisdiction in law is that a court should be able to try and adjudicate only in those matters with which it has some connection or which fall within the territorial or pecuniary limits of its authority.

The basis to determine jurisdiction

Jurisdiction is determined mainly on the grounds of:

  1. Fiscal value;
  2. Geographical boundaries of a court;
  3. The subject matter of court.

So, the Court, before accepting notice of crime, needs to take into consideration the following characteristics:

  • The Fiscal value of the trial.
  • The specialties of the case.
  • The regional limits of the court.

Territorial or local jurisdiction

Under this territorial or local jurisdiction, the geographical limits of a court’s authority are clearly delineated and specified. It cannot exercise authority beyond that geographical/ territorial limit

Section 16 that the suit pertaining to immovable property should be brought to the court. The court does not have the power to decide the rights of property which are not situated. However, the court can still pass a relief if the opposite party agrees to try the suit in such a case.

Pecuniary jurisdiction

Pecuniary means ‘related to capital.’ It approaches the question of whether the court is competent to try the case of the financial value. The code allows analyzing the case unless the suit’s value exceeds the financial limit of the court. Section 15 of the Code of Civil Procedure commands the organization of the suit in the court of the low grade. It refers to the pecuniary jurisdiction of the Civil court.

Jurisdiction as to the subject matter

The subject matter can be defined as the authority vested in a court to understand and try cases concerning a special type of subject matter. In other words, it means that some courts are banned from hearing cases of a certain nature. No question of choices can be decided by the court which does not have subject matter jurisdiction.

Original and appellate jurisdiction

Appellate jurisdiction refers to the court’s authority to review or rehearse the cases that have been already decided in the lower courts. In the Indian circumstances, both the High Court and Supreme Court have the appellate jurisdiction to take the subjects that are bought in the form of appeals.

Original Jurisdiction refers to the court’s authority to take notice of cases that could be decided in these courts in the first instance itself. Unlike appellate jurisdiction wherein courts review the previously decided matter, here the cases are heard afresh.

Exclusive and concurrent jurisdiction

In Civil Procedure, exclusive jurisdiction means where a single court has the authority to decide a case to the rejection of all the courts. This jurisdiction is decided on the basis of the subject matter dealt with by a specific court. For example, the U.S District courts have particular jurisdiction over insolvency topics.

Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a particular case. In this situation, parties will try to have their civil or criminal case heard in the court that they perceive will be most favorable to them.

General and special jurisdiction

General jurisdiction means that general courts do not limit themselves to hearing only one type of case. This type of jurisdiction means that a court has the power to hear all types of cases. So the court that has general jurisdiction can hear criminal, civil, family court cases,s and much more.

Specific jurisdiction is the ability of the court to hear a lawsuit in a state other than the defendant’s home state if that defendant has minimum contacts within the state where the suit will be tried.

Legal and equitable jurisdiction

Equitable jurisdiction belongs to the authorities of the courts to take specific actions and pass some orders in order to deliver an equitable and reasonable outcome. These judgments are usually outside the purview of law, in the sense that support provided by the courts may not be necessarily confirmed by the statute.

Expounding and expanding jurisdiction

Expounding jurisdiction means to describe, clarify and explain jurisdiction. Expanding jurisdiction means to develop, expand or prolong jurisdiction. It is the duty of the court to clarify its jurisdiction and it is not proper for the court to extend its jurisdiction.

Execution  & Attachment

The word ‘execution’ is not defined in the C.P.C. It simply means the process for enforcing the decree that is passed in favor of the decree-holder. As per Rule 2 (e) of Civil Rules of Practice “Execution Petition” means the Petition to the court for the execution of any decree or order.

Choice of the mode of execution

There are various modes of execution that are acceptable according to Sec.51 of the Code of Criminal Procedure. According to this section, the various modes of execution of a decree are:

  • Delivery of any property that is specifically mentioned in the decree;
  • Attachment and sale of property;
  • Sale without an attachment of property;
  • The arrest of the judgment debtor;
  • Detention of the judgment debtor;
  • Appointment of a receiver.

Section 47 of the Code of Civil Procedure provides certain questions to be determined by the Court before executing the decree. The Court has to determine all questions arising between the parties to the suit, like:

  • Execution of decree;
  • The satisfaction of decree;
  • Discharge of the decree;
  • The Court can also determine whether the person is representative of a party or not.

The application of execution has to be filed by the decree-holder and the application can either be an oral application or a written application.

Modes of executing decrees

There are various ways to execute a decree, the Court has to follow the appropriate rules provided in Order 21 while executing a decree. According to Order XXI Rule 10, an application has to be filed in the Court by the decree-holder if he desires to execute it.

Delivery of property

Delivery of property is one of the most famous modes of executing a treaty. According to order XXI Rule 79, it is said that when the property that is sold is a movable property of which actual seizure has been made, it shall be delivered to the purchaser. Rule 35 of Order XXI discusses the rules regarding the decree of immovable property. According to this rule,

  • When the decree is for the delivery of immovable property, the property can be delivered to the person to whom it has been adjudged or to the representative of that person;
  • This delivery has to be made after removing any person bound by the decree who refuses to vacate the property; 
  • When the decree is for the joint possession of the immovable property, the possession shall be delivered after affixing the copy of the warrant in a place that is visible;
  • When the person in possession is not providing free access to the property, then the Court can remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession after giving proper warning to the women in that property.

 Attachment and sale of property

Section 60 of the Code of Civil Procedure provides the list of properties that are liable to attachment and sale in execution of the decree. The list which is liable to be attached for enforcement of decree according to this Section is:

  • Land;
  • Houses or other buildings;
  • Goods and Money;
  • Banknotes and cheques;
  • Bill of exchanges and promissory notes;
  • Hundis;
  • Government Securities, bonds, and other securities for money;
  • Debts; 
  • Shares in the corporation;
  • All other saleable property that belongs to the judgment-debtor can be movable or immovable.

Section 61 of the Code of Civil Procedure provides a partial exemption of agricultural produce.

Order XXI Rule 3 of the Code of Civil Procedure provides that if the immovable property is located within more than the local limits of the jurisdiction of one or more courts, then one of the Courts can sell and attach the property. According to order XXI Rule 13, there has to be certain information in the application for attachment of immovable property. According to Order XXI Rule 31, the decree for the specific movable property can be executed by:

  • Seizure of the property if it is practicable;
  • Delivery of the property to the person whom it has been adjudged;
  • The detention of judgment debtors in the civil prison.

Rule 41 of the Order XXI provides power to provide orders to the Court to examine the property of judgment debtors. The court may provide orders to the judgment debtor or officers in the case of firms to submit the relevant books and documents for examination. The value of the property is assessed in order to examine whether it would be sufficient for satisfying the decree. The judgment debtor, the officer in the case of corporations, and any other relevant person can be orally examined. According to Section 64 of the Code of Civil Procedure, any private alienation or transfer of property after the attachment, then the transfer would be considered void. Section 74 of the Code of Civil Procedure provides the power to arrest the judgment-debtor if they have obstructed or restricted the decree-holder from obtaining possession of any immovable property. The judgment debtor can be detained in prison for thirty days by the order of the Court.

Arrest and detention

Section 55 of the Code of Civil Procedure deals with various rules regarding arrest and detention. According to this Section,

  • The judgment debtor can be arrested at any time of the day and can be brought before the Court.
  • The detention of the Judgment debtor should be in civil prison.
  • No officer can enter the dwelling-house after sunset and before sunrise for making an arrest.
  • The officer should release the judgment debtor once the amount is paid.

Rule 37 of the Order XXI in the Code of Civil Procedure provides discretionary power to the judgment debtor to show cause against detention in prison. According to this rule:

  • Where the application is made for the execution of the decree for the payment of money by the arrest and detention of a judgment-debtor in the civil prison, then the Court provides an opportunity to the judgment debtor to show cause why he should not be sent to the civil prison.
  • The Court provides notice to the judgment debtor to appear before the court on a specified date and provide show cause.
  • The Court will also not provide the notice in certain situations, for example, if the court feels it would delay the process of execution or the judgment debtor might abscond within that time.

According to Rule 38, the warrant for the arrest of the judgment debtor will direct the officer authorized for execution to produce him in the Court within a reasonable time. Rule 39, of Order XXI, is an important provision that deals with the subsistence allowance. The decree-holder has to pay a certain sum that is fixed by the Court for the maintenance of the judgment debtor in the civil prison from the time of his arrest until he can be brought before the Court. No judgment debtor can be arrested if the decree-holder has not paid the subsistence allowance. Section 56 of the Code of Civil Procedure provides protection to women and according to this Section, women cannot be arrested in the execution of the decree for money. The scale for the monthly allowance is fixed under Section 57of the Code of Civil Procedure or else the Court can fix an amount that it thinks is sufficient. The payment has to be made in advance to the authorized officer in the beginning and the officer of prison in the later stage. The sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil prison shall be deemed to be costs in the suit. Rule 40 provides various proceedings that have to be followed after the appearance of the judgment debtor after providing the notice. Section 58 of the Code of Civil Procedure deals with the rules regarding detention and release. According to this section, the judgment debtor can be detained in a civil  prison:

  • For a period not exceeding three months- When the decree amount is more than a thousand rupees;
  • For a period not exceeding six weeks- When the decree amount is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees.

Section 59 of the Code of Civil procedure provides that the judgment debtor can be released on the grounds of illness. 

Interlocutory application (I.A)

An interlocutory application is an application that is moved in the main petition. it is usually filed when you ask for some urgent relief or to bring certain new facts to the knowledge of the court

“Interlocutory application” means an application to the Court in any suit, appeal, or proceeding already instituted in such Court, other than a proceeding for execution of a decree or order. The orders which are passed in those applications are called interlocutory orders.

‘interlocutory’ as order other than a final decision. Once an auction has been commenced all subsequent applications are referred to as interlocutory applications.

The provision dealing with the incidental proceedings is contained under part III Of the code of civil procedure. But such applications are moved under various provisions of the Code of civil procedure, 1908 which include applications for appointment of Commissioner, Temporary Injunctions, Receivers, payment into court, security for cause, etc.

Sec 141 of CPC provides, that the procedure provided in the Code of Civil Procedure, in regard to the suit shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction, therefore the procedure with regard to such applications is the same as that of the original suit, in matters like a recording of evidence, examining witnesses, etc.

Interlocutory orders

Interlocutory orders are passed by the courts to prevent irreparable harm from occurring to a person or property during the pendency of a lawsuit or proceeding.

Rules 6 to 10 of Order 39 mention certain interlocutory orders, which include the court’s power to order the interim sale of movable property, and to order the detention, preservation, or inspection of any property which is the subject matter of such a suit. Similarly, when the land in the suit is liable to Government revenue or is tenure liable to the sale and the party in possession neglects to pay the revenue or rent, the court may order any other party to the suit in case of sale of the land to be put in immediate possession of the property.

In the course of the trial, a trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in the prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone the delay in filing documents, after the first date of hearing order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other.

“Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge.”

What is the difference between interim order and interlocutory order?

While an interlocutory injunction is normally enforceable until the determination of the action, an interim injunction is generally granted for a short, specific period of time, and the plaintiff needs to return to court at the end of the period to ask for the continuance of the injunction. .. Court orders are a declaration made by a judge, commanding something to be done, or prohibiting the certain activity. Interlocutory applications can seek a wide range of orders, such as: 

  • urgent assistance from the court; or 
  • orders about the procedure or timetable of the court proceedings,  including orders about obtaining or disclosing evidence.

What is an interlocutory hearing?

An interlocutory hearing is held if a party does not consent to the orders sought by an interlocutory application. The hearing allows for both sides to present their arguments so that the judge can make a decision. 

Types of Interlocutory Applications 

There is a wide variety of types of interlocutory applications. Common types include:

Injunctive Relief   

Orders that stop the other party from doing something, like terminating a contract or completing a sale purchase. They are usually urgent, requiring the orders by a certain deadline.

Particulars

Orders to compel a party to provide particulars (details) that the other party has requested, seeking clarification of information in legal documents, including a statement of claim or defense.

Discovery

Orders to compel a party to provide certain documents sought by the other party through the discovery process. Therefore, an interlocutory application seeks orders that the documents should be discovered.

subpoenas

Subpoenas are orders to determine whether a party can ask a third party to provide certain documents. As above, the other party may object to documents sought by the other party because they are not relevant to the proceedings.

Interrogatories

Orders to compel the other party to answer certain questions are required to determine a position on a matter in dispute. The questions must be necessary to help provide a fair trial.

Medical Examination

Orders that one party submit to a medical examination. For example, this may be sought where the other party has concerns about the medical condition of that party and how it may impact the matters in dispute.

Interlocutory applications, and hearings, are an important part of court proceedings. Above all, they allow the parties to correct any unjust behavior by the other party and keep the proceedings in line with the court’s timetable. They can add significant time and expense to a court proceeding.

COUNTER CLAIM

Rule 6A to 6G of Order 8 deals with counter-claim. It is a claim made by the defendant in a suit against the plaintiff. It is a claim independent of and separable from the plaintiff’s claim which can be enforced by a cross-section. Counter-claim can be set up in respect of action accruing to the defendant either before or after the filing of the suit but before the defendant has delivered his defense or before the time fixed for the delivery of his defense has expired.

Such a claim should not exceed the pecuniary limits of the jurisdiction of the concerned court. The counterclaim is to be treated as a plain and the plaintiff can file a written statement in answer to it. Counter-claim can be filed after the filing of a written statement.

Who may file a counterclaim?

Normally, it is the defendant who may file a counterclaim against the plaintiff. But incidentally and along with the plaintiff, the defendant may also claim relief against the co-defendants in the suit. 

When counterclaim may be set up?

A counterclaim may be set up by a defendant against a plaintiff in respect of the cause of action accruing either before or after filing of the suit, provided such claim is not barred by limitation.

Effect of counterclaim: Such counterclaim has the effect of a cross-suit and the court can pronounce a final judgment both on the original claim and the counterclaim. The counterclaim of the defendant will be treated as a plaint and the plaintiff has a right to file a written statement in answer to the counterclaim of the defendant.

The effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued, dismissed, or withdrawn, the counterclaim will be decided on merits and the defendant will have a right to get a decree for a counterclaim as claimed in the written statement. If the plaintiff does not file any reply to the counterclaim made by the defendant, the court may pronounce the judgment against the plaintiff in relation to the counterclaim made against him or make such order in relation to the counterclaim as it thinks fit.268 The counterclaim shall be treated as a plaint and will be governed by the rules applicable to plaints. Similarly, a reply filed in answer to a counterclaim shall be treated as a written statement and governed by rules applicable to written statements.

Set Off & Counter Claim

The distinction between set-off and counter-claim.

  • Set-off is a statutory defense to a plaintiff’s action, whereas a counterclaim is substantially a cross-action.
     
  • Set-off must be for an ascertained sum or must arise out of the same transaction as the plaintiff’s claim. A counterclaim need not arise out of the same transaction.
     
  • Set-off is a statutory ground of defense and has to be pleaded in the written statement. It can be used as a shield and not as a sword. Counterclaim, on the other hand, does not afford any defense to the plaintiff’s claim. It is a weapon of offense that enables the defendant to enforce his claim against the plaintiff as effectively as in an independent action. It is a sort of cross-action.
     
  • If the statute of limitation is pleaded to a defense of set-off, the plaintiff in order to establish his plea has to prove that set-off was barred when the plaintiff commenced the action. It is not enough to prove that it was barred at the time when it was pleaded. In the case of a counterclaim, it is enough for the plaintiff to prove that the counterclaim was barred when it was pleaded.
     
  • An equitable set-off is a claim by the defendant in defense, which generally cannot exceed the plaintiff’s claim. A counter-claim the defendant may, however, exceed the plaintiff’s claim, being in the nature of the cross action. Under the provision rule 6-F of Order 6, if in any suit a set-off or counterclaim is established as a defense against the plaintiff’s claim and any balance is found due to the defendant as the case may be the court may give judgment to the party entitled to such balance.