LLB 301: Indian Code of Civil Procedure I

Essential Elements A.S.R.C.

(I) Adjudication - Formal Judicial determination No appeal lies from an informal decree. Misdescription of decision as an Order amounting to a Decree does NOT make it less than a Decree. (II) Suit Commenced by filing of a plaint; without which there cannot be a Decree. U/certain enactments, application = suit. (III) Rights of Parties in Controversy Substantive, NOT merely procedural - rights of parties inter se, having a general effect on the proceedings. (IV) Conclusive Determination Complete & final decision NOT interlocutory/sub: T&Cs Q. sought to be adjudicated left open is NO DECREE.

S.94 - 95 Supplemental Proceedings

- S.94: Interlocutory Proceedings Lays down, in order to prevent ends of justice from being defeated, court may: (a) issue WARRANT of arrest upon defendant (b) direct defendant to furnish security, produce any property & place at court's disposal; order attachment (c) grant TEMP. INJUNCTION - disobedience, commission of guilty to civil prison (d) appoint RECEIVER of any property & enforce performance of duties by attaching & selling his property (e) other INTERLOCUTORY ORDERS - S.95: Insufficient Grounds Lays down, if satisfied of "insufficient grounds"/no reasonable ground - may award reasonable compensation, as it deems fit, not exceeding ₹50,000; against the plaintiff to the defendant - for expense/injury (incl. to reputation) caused. Court cannot award any amt. exceeding limits of pecuniary jurisdiction. Summary remedy for injured defendant, enabling him to seek compensation upon application instead of by suit. Order determining any such application shall bar any suit for compensation w.r.t. such arrest/attachment/injunction.

NOT Decrees R.A.D.

1. PLAINT REJECTION Order returning plaint/MOAppeal to be presented at a proper court is NOT a decree; b/c (a) Doesn't negate rights of plaintiff/appellant (b) Not a decision on rights of parties 2. APPEALABLE ORDERS Decrees expressly exclude appeals from adjudications/orders. Thus, order returning plaint for presentation at proper court, order rejecting order to be set aside ex parte decree, etc. are Appealable Orders & NOT decrees. 3. DEFAULT DISMISSAL Decrees do NOT include any order for 'dismissal of default', viz. want of prosecution of suit/appeal, non-appearance, etc.

Types P.F.C.D.D.

1. PRELIMINARY [O. 20 & O. 34] Further proceedings remain. Decides parties' rights w.r.t. some matters but does NOT dispose of the suit. Working out stage for parties' rights, to be finally adjudicated by a FINAL Decree. Courts may pass even in cases not covered by the Code's prov.'s. S. 97 - Appeal from a Preliminary Decree, if taken, then Final Decree falls to the ground. CASE: Sital Prasad v Kishori Lal AIR 1967 SC 1236) 2. FINAL Final disposal of suit. Decides all matters-in-controversy for parties. No matters left to be decided. - 2 ways: (i) no appeal lies/decided by highest court of jurisdiction. (ii) Court disposes of suit completely. CASE: (a) Hasham Abbas v Usman Abbas AIR 2007 SC 1077) (b) Bicoba v Hirabai (2008) 8 SCC 198 3. COMPOSITE Certain cases, viz. suit for possession of land & Mesne profits; where first half is final > directs delivery of possession to plaintiff, while the second half is preliminary > directs an inquiry into Mesne profits. 4. DEEMED (Faux) Legal fiction. Statutory fiction for purpose of extending meaning which it doesn't expressly cover. Eg: Rejection of plaint (for non-payment of court fee), determination of Q. u/S. 144 5. APPEAL DISMISSAL FOR LIMITATION Dismissal of an appeal in 'limine' u/O. 41 is a decree.

O.39 (R.6-10) Interlocutory Orders

1. Passed by court during pendency of suit 2. Made vis-à-vis suit while its receiving active consideration of court before final adjudication upon subject-matter of suit 3. Relate to matters of procedure 4. Passed to: (i) assist parties in prosecution of their case (ii) protect subject-matter of suit (iii) ensuring determination of case's merits - they don't, however, determine substantive rights of parties w.r.t. subject-matter of suit 5. Like temp. injunctions, intended to prevents frustration of ends of justice (by parties' acts) R.6. Power to order interim sale of property sub: speedy & natural decay. R.7. Power to order detention/preservation/inspection of any property. O.40. Appointment of a receiver - falls w/in meaning of I.O.

O.40 Appointment of Receiver

A person who received money of another & renders a/c. PURPOSE: preserve suit property & safeguard interests of both parties.* *CASE: P. Lakshmi Reddy v L. Lakshmi Reddy AIR 1957 SC 314 Impartial person, appointed by court - receive & preserve property (movable/immovable) or fund litigation pendente lite - doesn't seem reasonable that either party hold it. Protective relief - one of the harshest remedies - deprives opposite party of possession before final judgment. Should not be lightly resorted to.* *CASE: Krishna Kumar v Grindlays Bank AIR 1991 SC 899 Should not be appointed unless plaintiff prima facie proves excellent chances of succeeding. R.1(a). Where just & convenient - court may appoint receiver, before/after decree, of any property & remove any person in possession/custody. Receiver = Officer/Rep. of court & functions u/its directions. EXCEPTIONAL/SPECIAL CIRCUMSTANCES: A party to suit/proceeding may be appointed.* *CASE: Kasturi Bai v Anguri Chaudhary AIR 2001 SC 1361 It's a discretionary power, sub: controlling provisions of S.94, to be exercised for preventing the ends of justice being defeated. Court can appoint not only on application of a party to suit, but any person interested in the preservation of property; or suo motu. R.1(d). POWERS of a receiver: 1. Institute & defend suits 2. Realise, manage, protect, etc. property 3. Collect, apply & dispose of rents/profits 4. Execute documents 5. Cannot sue/be sued for official acts, by 3rd party w/out court's leave 6. Property in receiver's hands cannot be attached w/out court's leave 7. CUSTODIA LEGIS - obstruction/interference w/his possession w/out court's leave = interference w/court's proceedings - liable for Contempt of Court. All suits to collect/obtain possession of the property - prosecuted by receiver - proceeds received & controlled by him alone. CASE: Jagat Tarini Dasi v Naba Gopal Chaki ILR (1907) 34 Cal 305 R.2. Entitled to remuneration fixed by court for serviced rendered. R.3. Entitled to be indemnified - debts incurred/contracts entered into - due course of estate management. - Receiver must furnish suitable security - duly to a/c for what he shall receive w.r.t. property - to be paid as per court's directions. R.4. Upon failure to pay due amount/occasion loss to property/submit a/c's - by wilful negligence - court may direct attachment & sale of his property to make good any amt. found to be due from him. R.5. Court - Inherent Power - remove receiver - when he doesn't comply with court's orders/abuses his power/authority. A Collector - appointed as receiver - cases where disputed property is land paying revenue to the govt.

S.79 Suits by/against Govt.

Authority - plaintiff/defendant: (a) Central Govt, UOI (b) State Govt., The State.

S.148-A Caveat [1976 Amendment]

Caution/warning giving notice to the court not to take any step w/out notice being given to party lodging such Caveat. Common in testamentary proceedings. Provision found in the SC Rules. Precautionary measure - avoids multiplicity of proceedings. Any person claiming a right to appeal before the court on the hearing of such application may lodge a Caveat. Note, any person likely to be affected by order can file a Caveat - he need not be a party to the proceeding. Caveator must serve a notice of Caveat by regd. post, acknowledgement due, etc. on person by whom application is to be made. After lodging, any application filed in suit/proceeding - court must serve a notice of application on Caveator. Also, Applicant must furnish Caveator (at C's expense) copy of application & other docs. Doesn't remain in force post expiry of 90 DAYS from date of lodging, unless another application is made prior to expiry. Related provisions = applicable to suits, appeals, other proceedings u/CPC or other acts.

O.33 Suits by Indigent Persons (Pauper Suits)

DEFINITION: (i) not possessed of sufficient funds enabling him to pay prescribed court fee (ii) no such fee prescribed, when he isn't entitled to property worth ₹1,000 - property exempt from attachment - subject matter of suit, excluded Enable paupers to institute & prosecute suits w/out payment of court fee. Allowed to prosecute any suit in FORMA PAUPERIS, prov. he satisfies certain conditions. Court - Inherent Powers - allow defendant to defend in FORMA PAUPERIS. A minor indigent person may sue through next friend, although latter NOT = indigent. INSTITUTION PROCEDURE: R.1, Explanation II: Any property acquired after presentation of application - to be taken into a/c w.r.t his pauper status. R.1A. Initial inquiry into means of applicant - to be made by Chief Ministerial Officer of court. R.4. Applicant has to appear before court, unless exempted. R.7. Application NOT rejected, court shall fix a day - receiving evidence - proof/disproof of applicant's indigency. At least 10 days' notice - opp. party & govt. pleader. R.8. Application, if granted - deemed = plaint - suit proceeds ordinarily - EXCEPT, plaintiff NOT liable to pay any court fee, fee for process of service, fee for appointment of pleader, or any other proceeding w.r.t. suit. - Cases to be rejected: 1. Application - not framed & presented properly 2. Applicant is NOT = indigent 3. W/in 2 months before presentation, disposed of any property fraudulently in order to apply u/O.33 4. Allegations don't show cause of action 5. Entered into any agreement w.r.t. subject -matter of proposed suit 6. Allegation show suit = legally barred 7. 3rd party agreement to finance litigation POST-REJECTION OPTIONAL PROCEDURE: R.9. "Dispaupering" - done by court upon application of defendant/govt. pleader - 7 days' notice given to plaintiff - on following grounds: (i) guilty of vexatious/improper conduct (ii) means such - ought not to continue as pauper (iii) entered into agreement u/which 3rd party - obtains interest - suit's subject-matter. R.9A. Assign pleader. R.10-11: intended to secure govt. Right to recover court fee, payment - merely postponed. R.10. Upon succeeding in suit, court fee = first charge, ordered by decree R.11. Compulsory circumstances for payment of court fee: (i) Upon failure (ii) When dispaupered (iii) suit - w/drawn or dismissed R.11A. If a pauper suit abates - plaintiff's death, fee payable - recoverable from deceased plaintiff's estate. R.15. Upon refusal - operates as bar to subsequent similar application. Applicant may ordinarily sue prov. he pays the incurred costs by govt. & opp. party in opposing application for leave to sue FORMA PAUPERIS. It doesn't operate as res judicata. R.15A. When rejecting application, court can also grant time to applicant to furnish reqd. Court fee, and subsequent to payment, suit deemed - instituted - date of presentation of application to sue in FORMA PAUPERIS. R.17. Allows for indigent defendant to plead a set-off/counter-claim. Note, an order rejecting an application for permission to sue FORMA PAUPERIS is APPEALABLE u/O.43. O.44. Deals w/appeals by indigent persons. R.18. Empowers central/state govt. - make prov.'s for providing free legal services to indigent persons.

Interim Orders [25, 26, 38, 39, 40]

Don't finally determine substantive rights & liabilities of parties w.r.t. subject-matter of suit/proceeding. Settle some intervening matter. OBJECTS: 1. Protect parties' rights 2. Enable court to grant such relief/pass such order - necessary/just/equitable 3. Prevent abuse of process

S.2(2) Decree

Formal expression of an adjudication. Conclusively determines parties' rights w.r.t. All matters-in-controversy. 2 types: Preliminary Final Deemed to include: Rejection of a plaint. Determination of any Q. in S. 144 Does NOT include: Appeal for Order Dismissal Order for Default

S.144 Restitution

Layman terms, "An act of restoring a thing to its proper owner." Legal terms, "Restoring to a party the benefit which the other party has received u/a decree subsequently held to be wrong." Application for Restitution can be made when: Decree/order - varied/reversed on appeal, revision, etc./set aside/modified in a suit. DUTY of the court to restore property lost in execution of wrong decree, refund of costs & for payment of interest, damages, compensation & mesne profits. LEGAL MAXIM: "Actus curiae neminem gravabit", ie: the act of court shall harm no one. Based on equitable principles. Jurisdiction is not only restricted to S.144 - courts have Inherent Powers to grant/order restitution when justice demands it. S.144 doesn't confer new substantive right, it merely regulates power of the court in that behalf - not discretionary but obligatory. CONDITIONS: 1. Must be w.r.t. Erroneous Judgment (Decree/Order) - Varied/Reversed 2. Applicant must be entitled to BENEFIT u/reversed decree/order 3. Relief claimed - properly consequential to variation/reversal Entitled party must be party to the varied/reversed decree/order. Can be granted not only against litigating party, but also his legal reps. However, it does not apply to sureties. Where claimable by application, no separate suit shall be brought for such relief. OBJECTS OF DOCTRINE: 1. Shorten litigation 2. Provide speedy relief Determination = Decree, thus = appealable.

O.38 (R.5) Attachment before Judgment

Made if court - satisfied - defendant is about to dispose of the whole/part of his property/remove the property from local limits of court's jurisdiction. 2 cases wherein such order can NOT be passed: (i) w.r.t. agricultural produce/production in the hands of an agriculturalist (ii) w.r.t. immovable property; by Small Causes Court's OBJECT: Give assurance to plaintive - his decree, if made, would be satisfied. Guarantee against decree becoming infructuous for want of property available - from which plaintiff can satisfy decree. CASE: Sardar Govindrao v Devi Sahai AIR 1982 SC 989 R.6. Where, defendant - show cause - why he should not/fails to furnish security - w/in time fixed by court - court may order that property specified sufficient to satisfy the decree, be ATTACHED; may also order Conditional Attachment. Such an order made w/out complying w/prov's of R.5. = void. R.8. Any claim preferred to property attached before shall be adjudicated upon. R.9. Order will be w/drawn if defendant furnishes security/suit dismissed. R.10. Such attachment doesn't affect the rights of persons not party to suit, existing prior to attachment. Where property - u/attachment & decree subsequently passed in plaintiff's favour - NOT necessary - apply for reattachment of property in execution u/O.21 (R.11). Power to attach before judgment = far-flung consequences - NOT to be exercised lightly. CASES: 1. Premraj Mundra v Mohd. Maneck Gazi AIR 1951 Cal 156 2. Bharat Tobacco Co. v Maula Saheb AIR 1980 Guj 202 3. Nowroji Pudumjee v Deccan Bank Ltd. AIR 1921 Bom 69 S.95 Where in any suit, plaintiff obtained an order of attachment of property of defendant - insufficient grounds, court may order plaintiff - pay compensation (up to ₹50,000) to defendant.

S.80 Notice

Not needed in ordinary suits, but in suits u/S.79, NOTICE = condition precedent prior to filing of suit against govt./public servant; EXCEPT - urgent/immediate relief reqd. to be obtained Deals w/2 classes of cases: 1. Suits against govt.: Necessary, all cases 2. Suits against public officers: (i) Necessary ONLY where suit is w.r.t. 'Any act* purporting to be done by such officer in his official capacity'. (ii) NOT necessary where suit w.r.t. Act done - individual capacity (defamatory language/assault). CASE: Pukhraj v St. of Rajasthan AIR 1973 SC 2591 *includes illegal omissions. S.80(1) To Whom: No suit can be filed until expiration of 2 mths. - after notice in writing (incl.: ref. essentials) - delivered to/left at the office of, in case of suit against: (i) Central govt. - Sec. Gov.; Railways - GM (ii) Govt. of J&K - Chief Sec./other authorised officer (iii) State govt. - Sec./district collector (iv) Public officer - Such public officer S.80(2) Immediate Relief: Suit may be instituted w/leave of the court - obtaining urgent/immediate relief against such govt./public officer, w/out serving statutory notice. In such suit, court shall not grant relief - except after giving govt./public officer - reasonable opportunity - showing cause w.r.t. Relief prayed for. However, courts - deprecated such practice. CASE: Ghanshyam Dass v Dominion of India AIR 1984 SC 1004 S.80(3) Ignorance of Errs: Must be reasonable construed. Every venial error/defect NOT = permitted to be treated as excuse - defeat just claim. On reasonable reading, but not so as to make undue assumptions, plaintiff - shown to have given info. which statute reqs. him to give - any incidental defects/errors - ignored. OBJECT: 1. Give govt./concerned public officer - opportunity - reconsider - legal position - make amends, if so advised by legal expert - avoid litigation 2. Intended to alert govt. - negotiate - just settlement/courtesy - tell aggrieved - why claim being resisted 3. Advancement of justice CASE: Bihari Chowdhary v St. of Bihar AIR 1984 SC 1043 NOTE: S.79-80 - rules of procedure - don't affect claims & liabilities enforceable by/against govt. Determined in acc. w/prov.'s of the COI (Art./294-300) However, now become an "empty formality" - admin. = unresponsive. ESSENTIALS: 1. Cause of action 2. NDR of Plaintiff 3. Relief claimed 4. Delivered to appropriate authority 5. Plaint - post institution of suit - contains statement that such notice - so delivered/left - Failure to Comply = Suit Dismissal REQUIREMENTS: 1. Substantial info. conveyed - basis - servée - consider - claim such as to avert - claim thereof 2. Need NOT be practical copy - plaint. 3. To be given after cause of action has arisen. If given before = invalid. Applies to all suits. Does not apply to 1. Writs 2. Complaints filed - HC/SC/Tribunals Given for benefit of defendant, nothing preventing him from waiving it. Thus, service - procedural character. Therefore, legal technicalities - NOT to be strayed into by courts. EXCEPTION CASE: Mohanlal v Dominion of India 1953 NLJ Sh.N. 300 "When notice sent on behalf of individual & suit brought by firm, notice does NOT comply w/reqs. of S.80."

Null Decree

Passed by a court w/out Inherent Jurisdiction, i.e. ULTRA VIRES, not merely voidable. Hence, an erroneously passed decree is not always a nullity.

(NIBA) Plaint/Written Statement

Plaint - Plaintiff's Pleading ESSENTIALS 1. Court Name 2. Plaintiff's NDR 3. Defendant's NDR 4. Statement where Plaintiff/Defendant = Minor/Person of Unsound Mind 5. Cause of Action & when it arose 6. Lex Fori 7. Prayer Clause: Relief & costs claimed by plaintiff 8. Any set-off/claim relinquishment by plaintiff 9. Value of Subject Matter; for Pecuniary Jurisdiction & Court Fee 10. Signature & Verification WS - Defendant's Pleading ESSENTIALS 1. Deal w/every material fact plaintiff alleges 2. State new facts in his favour 3. Take legal objection against the plaintiff's claim Presentation of WS is time ltd. by not more than 30 days w/court's permission; or at/before first hearing. WS = Re: Plaint

Preliminary Decree v Final Decree

Preliminary Decree 1. Ascertains what is to be done. 2. Not dependant on FD. 3. Determines rights of parties sub: further inquiry. Final Decree 1. States the result achieved via PD. 2. Very dependant on & subordinate to PD. 3. Finally determines rights of parties, post-inquiry. 4. Function: Merely to restate & apply w/precision what PD ordains. Eg: In HJF, PD declares rights whereas FD specifically divides properties by metes & bounds. Executable decree secured to parties. CASE: Renu Devi v Mahendra Singh (2003) 10 SCC 200

S.2(8) Judge

Presiding officer of a civil court.

O.36 Special Case

Procedural CONDITIONS (R.1-5): (i) agreement duly executed (ii) parties' bonafide interest in Q. (iii) case = fit to be decided (iv) no appeal lies from decree u/O.36, as decree = compromise decree PROCEDURE: 1. Agreement filed in court 2. Numbered & regd. as a suit w/parties as plaintiff & defendant 3. Case set out for hearing as suit 4. Heard & adjudicated upon as normal suit 5. Decree passed

(NIBA) Suit Essentials: P.C.S.A.R.

Proceeding by which an individual pursues that remedy which the law affords. ESSENTIALS 1. Parties 2. Cause of Action 3. Subject Matter 4. Court's Adjudication 5. Relief Claimed

S. 2(12) Mesne Profits

Profits actually received, or might w/ordinary diligence, along w/interest on such profits; made by person in wrongful possession of property. Does NOT include profits due to improvements made by such person in wrongful possession. Compensation of Penal Nature. Wrongful possession is the essence of such a claim, and the object is compensation of person deprived of enjoyment of his own property. No fixed rule. Awarded as per justice of individual cases. Calculated by taking into a/c what defendant in wrongful possession has or reasonably might have gained; NOT what plaintiff lost by being out of possession. Multiple defendants > ALL liable, regardless of actual possession or receivable of profits. CASE: Lucy Kochuvareed v P. Mariappa Gounder AIR 1979 SC 1214 PRINCIPLES (I) No profit by wrongful possessor (II) Restoration of status before dispossession of decree-holder (III) Use to which decree-holder may have put the property, had he himself been in possession (III) Wrongful possessor NOT liable for failure to realise highest possible rent rates & premium, if 'fair'/reasonable rent has been realised (IV) Mesne profits to be realised on basis of more prudent & profitable purpose for land usage (V) Include Right to Interest on Mesne Profits; should be net profits CASE: (a) Sec. of St. v Saroj Kumar (1935) 62 IA 53 (b) Harry Grey v Bhagumian AIR 1930 PC 82 BOP 1. Actual profits > Receiver 2. Realisable profits > Claimant 2 types: - w.r.t. Immovable Property, i.e. a House - w.r.t. Movable Property, i.e. Shares

O.35 Interpleader Suit

R.1. Impartial Plaintiff: In every IP suit, plaint must also state:- (a) plaintiff claims no interest, other than charges/costs (b) claims made by defendants severally (c) no collusion b/w plaintiff & any of the defendants. R.2. Custody: Court may order plaintiff to place thing claimed in its own custody & provide his costs by giving him a charge on thing claimed. R.3. Stay Order: Where any defendant in IP suit files suit against plaintiff in another court w.r.t. same subject-matter, court shall STAY the proceedings. R.4. Plaintiff - In Lieu: If necessary, court may direct issue(s) be framed & tried, and that any claimant be made plaintiff in lieu of/in addition to original plaintiff. R.5. Ineligible Plaintiffs: 1. Agent - Principal 2. Tenant - Landlord For purpose of compelling them to interplead w/persons other than those claiming through such Principles/Landlords. Procedure: (i) At the first hearing, court may declare plaintiff discharged & dismissed (ii) if Justice/Convenience reqs., retain all parties until suit's disposal

Examination u/R.4 v R.7

R.4. Examination of Applicant. No cross examination. W.r.t. applicant's pauperism & case's merits. Examination not only of applicant, but may also be of witness. Confined to Q. of pauperism.

Powers

Rules 16 - 18. Commissioner may summon & procure attendance of parties/witnesses & examine them, call for & examine documents, enter upon a land, etc; or proceed ex parte if parties don't appear inspite of court order.

O.25 Security for Costs

Rules as to security for payment of costs to be furnished by plaintiff at any stage of suit. OBJECT: provide protection of defendant in certain cases where in event of success, there may be difficulty in raising costs from plaintiff. Made in all cases where it appears to court that plaintiff residing outside India & doesn't possess immovable property here (other than suit property). Court may pass an order u/O.25 either Suo Motu or upon application. Though this power is discretionary, reasons for use must be recorded. Suit can be dismissed in the event of non-furnishment of costs within time fixed. However, it can be restored by same court if plaintiff satisfies court for inability to furnish in time. Mere poverty/insolvency of plaintiff NOT = sufficient ground for passing order u/O.25. Conflict of opinion: Whether security shouldn't be ordered against a pauper plaintiff. Should not be ordered against a Minor Plaintiff or his next friend.

O.26 Commissions

Rules: EXAMINE WITNESS 1. Court may issue when such person resides w/in court's local jurisdiction but is exempted, or from sickness/infirmity, unable to attend court. 2. Court may issue either 'Suo Motu' or upon application. Shall not be issued without recording of reasons. 4. Can also be issued for: (i) any person resident beyond local jurisdiction of court (ii) person about to leave court's jurisdiction (iii) govt. servant, if he cannot attend w/out detriment to public service. 4A. [1999 Amendment] (I) Notwithstanding what's stated above, any court may issue w.r.t. person resident w/in local jurisdiction, if in interest of justice/necessary to expeditious disposal of case/other reasons. (II) However, party accused of fraud may have his prayer - to examine himself on commission - refused as 'Opportunity of Noting his Demeanour' may be lost. (III) This power should not be exercised solely on the ground that witness = high rank/social status. (IV) It may be exercised if party/witness apprehends danger to his life if he appears before court.* (V) A Sadhu as a witness can be examined. 8. EXCEPTIONS: Evidence taken shall form part of record, but not read in evidence in suit w/out consent of party against whom offered, UNLESS (a) Person giving evidence is beyond jurisdiction/dead/unable to attend from sickness or infirmity/exempted/govt. servant (b) Court in its discretion dispenses w/proof of any such circumstances (ie: notwithstanding proof - cause for taking such evidence - ceased at time of reading). *CASE: Vinayak Trading Co. v Sham Sunder & Co. AIR 1987 AP 236 LOCAL INVESTIGATION 9. Issue commission directing person (Commissioner) to make local investigation - report for purpose of: (a) elucidating matter in dispute (b) ascertaining market value of any property/mesne profits/damages/annual net profits 10. Can be issued ex parte or in presence of both parties. EXAMINE A/C's 11. Examination/adjustment of a/c's 12. Shall be evidence in suit MAKE PARTITIONS 13. Commission for Final Decree of Actual Partition 14. Commissioner will prepare report to be transmitted to court - appointing parties shares - distinguished by metes & bounds. Court will, after hearing parties objections, make Final Allotment as Decree. If set aside, court may issue new commission/pass other orders. SCIENTIFIC INVESTIGATION 10A. Scientific investigation which cannot be conveniently conducted before court. SALE OF MOVABLE PROPERTY 10C. Necessary to sell any movable property in court's custody which cannot conveniently be preserved. PERFORMANCE OF MINISTERIAL ACT 10B. Performance of any ministerial act which cannot be conveniently performed before court. 'Ministerial Work' NOT = office work of court, but work like a/c-ing, calculation, etc.

S. 2(5 & 6) Foreign Court & Judgment

S. 2(5): Court situated outside of India & not estd./contd. by Central Govt. Authority S. 2(6): Judgment of a Foreign Court [S. 2(5)]

S.91 Public Nuisance Suits

S.286, IPC - Public Nuisance: act/omission - causes any common injury/danger/annoyance - public or which causes injury/obstruction, etc. to persons in use of public rights/other wrongful acts. REMEDIES: - Are concurrent & NOT BARRING on one another 1. Liable to Criminal Prosecution 2. Action maintainable even w/out proof of damage 3. Be sued for special damages to pvt. individual S.91. Authorises filing of suit by Adv. Gen., or by him at the instance of relators/2 or more relators, w/leave of court. Injury = irreparable/continuous Injunction may be granted to restrain act, w/out proof of actual injury to the public.

S.75-78 Commissions

S.75 is illustrative and not exhaustive. It enacts that a court may issue a commission to (O.26) 1. Examine witness (R.1-8) 2. Make local investigation (R. 9-10) 3. Examine a/c's (R.11-12) 4. Make partitions (R.13-14) 5. Hold scientific investigation (R.10A) 6. Conduct sale of property (R.10C) 7. Perform any ministerial act (R.10B) S.76 lays down: A commission may be issued to any court (not a HC), situate in any other state, having jurisdiction in place of examinee's residence. PROCEDURE: 1. Receiving court duly executes it by examining such person 2. Returns to Issuing Court along w/Evidence taken

S.89 Arbitration [1999 Amendment] ADR

Settlement of disputes outside the court. (ADR) 0. Preliminary Step: (i) Where it appears - elements - acceptable settlement exist, court must formulate - terms of such settlement - give same to parties for observations/comments (ii) After receiving - observations/comments, court may reformulate terms of possible settlement & ref. same for: (a) Arbitration (b) Conciliation (c) Judicial Settlement - i) incl. Lok Adalat (d) Mediation I. Primary Step: Where ref: (a)/(b) - prov.'s of Arbitration & Conciliation Act, 1996 apply. (c) - suitable institution/person, which shall be deemed to be a Lok Adalat (c) i) - prov.'s of Legal Services Authority Act, 1987 apply (d) court must effect a compromise b/w parties & follow prescribed procedure New prov's based - recommendations made by Law Commission of India & Malimath Committee "Making it obligatory for court to ref. the dispute, after issues - framed, for settlement by way of arbitration, conciliation, mediation, etc." - Malimath Committee

O.38 (R.1-4) Arrest before Judgment

Special circumstances. 4 types of suits where such order can NOT be passed [in suits of immovable property for]: 1. Recovery 2. Partition 3. Foreclosure/sale/redemption - mortgage/charge 4. Determination of any right/interest R.1. At any stage of suit - court satisfied by affidavit/otherwise - defendant w/intent to: (i) delay the plaintiff (ii) avoid process of court (iii) obstruct/delay execution of any decree that may be passed against him (iv) absconded/left or about to; court's local jurisdiction limits; disposed of/removed any such property (v) about to leave India; - court MAY issue warrant to arrest defendant & present him before court - show cause why he shouldn't furnish security for his appearance. However, shall NOT be arrested if pays warrant's specified sum, sufficient to satisfy plaintiff's claim. Further, no arrest can be effected to ensure execution of decree. R.4. Where defendant - fails - furnish security - court may commit him - civil prison - until decision of suit/execution of decree. However, no such person - detained - more than 6 weeks, if amt. of subject-matter of suit - does NOT exceed ₹50; or for more than 6 months in any other case. Such person may not be detained any longer upon compliance w/such order. Plaintiff - make application for arrest - any time after presentation of plaint, even before service of summons. However, (i) suit must = bonafide (ii) cause of action = prima facie, unimpeachable (iii) court - reason to believe - unless this extraordinary power is exercised, there's real danger - defendant escaping - Power to arrest defendant before decree in favour of plaintiff = drastic action, taken after due care, caution & circumspection CASE: Vareed Jacob v Sosamma Greevarghese (2004) 6 SCC 378 S.95 Where in any suit, plaintiff obtained an order of arrest/attachment of property of defendant - insufficient grounds, court may order plaintiff - pay compensation (up to ₹50,000) to defendant.

S. 2(9) Judgment Essentials: C.P.D.R.

Statement given by Judge on grounds of a decree/order. It provides the grounds for passing of such decree/order. ESSENTIALS (a) Concise Statement (b) Points for Determination (c) Decision (d) Reasons (e) Intelligible (f) Application of mind *court of small cause > only (b), (c), (e) & (f) Sketchy orders, not self-contained & not appreciable by appellate/revisional court can NOT be said to be judgments. CASE: Gajraj Singh v Deohu (1951) ALJR A judge cannot merely pass a judgment w/out setting out the entire reasoning process; however it need not be a decision on all the case's issues. 1. Order deciding preliminary issue in a case, eg: Constitutional Validity of a Statute is a Judgment CASE: Balraj Taneja v Sunil Madan AIR 1999 SCC 3381 2. Order passed by Central Admin. Trib. Can NOT be said to be a judgment, even if described as such. CASE: St. of TN v Thangavel AIR 1997 SCC 2283

S.90 Special Case

Substantive Where any person agrees in writing to state a case for court's opinion. Court shall try & determine the same. "Friendly Suits" One where parties don't institute a suit by presentation of plaint. Instead, they claim to be interested in the decision of any Q. of fact/law. by entering into agreement stating such Q. as a case for obtaining court's opinion.

S.88 Interpleader Suit

Where 2 or more persons claim adversely to one another the same debt, sum of money or other property (movable/immovable), from another person who doesn't claim any interest except the charges/costs & ready to pay/deliver it to rightful claimant, such person may file an IP suit. However, no suit pending in which rights of rival claimants can be properly decided. Defendants interplead - where each defendant is virtually in position of a plaintiff.

(NIBA) Affidavit

Written statement in name of person called 'deponent', voluntarily signed & sworn/affirmed before an authorised officer/magistrate. ESSENTIALS 1. Drawn up in first person 2. Contain only facts & NOT inferences, which are to be proved by oral evidence *O. 19 is an exception to this rule, as it provides for cross-examination of witness by opp. party S. 30(c) requires any fact to be proved by affidavit