CODE OF CIVIL PROCEDURE, 1908

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Summary Judgement

MANU Citation

Decree

Section 2: Decree may be either preliminary or final or sometimes partly preliminary and partly final. For any adjudication to be termed as decree the above mentioned conditions has to be satisfied, but in case when courts determines the right of the parties but does not finally dispose the matters completely, it is called preliminary decree. When the court completely dispose of the suit and finally settles all questions in controversy between the parties and nothing further remains to be decided thereafter, it is called final decree.

Whether the decree was a final decree or a preliminary decree.

Facts: Appellants and the respondents filed for a suit for partition. A decree was passed on the basis of compromise arrived at between the parties. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed off . Through the compromise there was complete partition of the suit properties which was acceptable to both the parties and decree was passed in this regard. The Plaintiff applied for final decree after 13 years as an after thought as there was a change in values of the properties. The entire controversy in the present case revolved around the question which was whether the decree was a final decree or a preliminary decree.

Held: Supreme Court held that the definition of decree includes both preliminary and final decree. Preliminary decrees declares the rights of the parties and final decress fulfills the preliminary decree

Rachakonda Venkat Rao and Ors. vs. R. Satya Bai (D) by Lr. and Ors. (11.09.2003 - SC) : MANU/SC/0702/2003

Decree, Order & Judgement

Sections 2(2): Decree Means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties.

Section 2(14): Order means the formal expression of any decision of a civil Court which is not a decree.

Section 2(9): 'Judgment' means the statement given by a judge of the grounds of a decree or order.

Difference between Decree, Order and Judgement

Facts: This suit was instituted for the recovery of the advances made by the plaintiff against the defendant. The main contention of the petitioner was the suit has not been dismissed but the Court had only held that it is liable to be dismissed. As such, according to the petitioners, this is not a decree but is an interlocutory order and the revision is maintainable. He further submits that the Court has not directed that the suit to be dismissed and, for this reason formal decree has not been drawn.

Held: Court observed difference between decree,order and judgement and held that judgement stands on different footing than the decree and order. The expression of the words 'liable to be dismissed' by implication means that the suit is dismissed and it may tantamount the formal expression of the dismissal of the suit, though not said in specific words.

Boards and Boards Pvt. Ltd., Jaipur vs. Himalaya Paper (Machinery) Pvt. Ltd., New Delhi (09.11.1989 - RAJHC) : MANU/RH/0031/1990

Courts to try civil suits

Section 9: This section states that courts have jurisdiction to try all the suits unless barred

Jurisdiction of court

Facts: The appellant in this case agreed to do certain construction work for the respondent company registered under the Indian Companies Act and having its principal place of business at Bombay on the terms and conditions of a written tender. Clause 13 provided that despite of the place. where the work under the contract was to be executed the contract shall be deemed to have been entered into by the parties at Bombay and the court in Bombay alone shall have jurisdiction to adjudicate thereon. On disputes arising between the parties the appellant submitted a petition to the Court at Varanasi for an order under Section 20 of the Arbitration Act, 1940 that the agreement be filed and an order of reference be made to an arbitrator or arbitrators appointed by the court. The respondent contended that in view of clause 13 of the arbitration agreement, only the courts at Bombay had jurisdiction.

Held: The Court in this case held that it is not open to the parties to confer jurisdiction on any court which it does not otherwise possess under the code by agreement. However, where two courts have jurisdiction under the code, an agreement between the parties that the dispute should be tried in one such court is not contrary to the public policy.

Hakam Sing vs. Gammon (India) Ltd. (08.01.1971 - SC) : MANU/SC/0001/1971

Courts to try civil suits

Section 9: This section states that courts have jurisdiction to try all the suits unless barred

Whether the plaintiff is an agriculturist and secondly, whether this court has jurisdiction to try this suit.

facts: The plaintiff and defendant came to an agreement for sale of an agricultural land. The defendant later does not sell the land to the plaintiff. Hence, the plaintiff filed a suit for specific performance of contract for sale of an agricultural land. The defended contended that the land being an agricultural land is covered under Bombay tenancy and agricultural land act and plaintiff is not an agriculturist. The issue in this case was first, whether the plaintiff is an agriculturist and secondly, if yes then whether this court has jurisdiction to try this suit.

Held: Supreme Court held that in a suit properly constituted and cognizable by the Civil Court, if there arises an issue which requires to be settled by the competent authority, the jurisdiction of the Civil Court is not only ousted but the same is under a statutory obligation to refer the issue to a competent authority and upon the reference being answered by, to dispose of the suit in accordance with the decision of the competent authority.

Gundaji Satwaji Shinde vs. Ramchandra Bhikaji Joshi (05.12.1978 - SC) : MANU/SC/0307/1978

Res Judicata

Section 11: The principle of Res Judicata in a nutshell means that once a matter is finally decided by a competent court, no party can be permitted to reopen it in subsequent litigation

Principle of Res Judicata was raised

facts: A sub-inspector was dismissed from his services by an order of DIG. The sub-inspector challenged such dismissal in the High Court on the ground that he was not heard before passing of the such order. This was dismissed by the court. Further he brings an additional suit stating that DiG is not an appropriate authority to dismiss him rather IGP is the appropriate authority. This case was taken to Supreme Court where the principle of res judicata was raised and following was held.

Held: Supreme Court observed that " When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law to avoid multiplicity of litigation and to bring finality in it, is deemed to have been constructively and therefore, is taken as decided."

State of U.P. vs. Nawab Hussain (04.04.1977 - SC) : MANU/SC/0032/1977

Res Judicata

Section 11: The principle of Res Judicata in a nutshell means that once a matter is finally decided by a competent court, no party can be permitted to reopen it in subsequent litigation

Whether petition is barred by Res Judicata.

Facts: The petitioners and their ancestors had been the tenants of the land and respondentswere proprietors of the suit property for past 50 years. Due to communal violence in western district of UP, the respondents took unlawful possession of the said land and on return of the petitioners, denied to deliver the possession back to the true owners. The petitioners filed suit for ejectment under U.P. Tenancy Act, 1939. In the trial court the petitioners succeeded and a decree was passed in their favor. The said decree was confirmed in appeal which was taken by respondents. Respondents then preferred a second appeal before the Board of Revenue under Section 267 of the U.P. Tenancy Act, 1939. The board allowed the appeal preferred by respondents and dismissed the petitioner's suit with respect to the land. Aggrieved by this decision the petitioners moved the High Court at Allahabad under Article 226 of the Constitution for the issue of a writ of certiorari to quash the said judgment the said petition was dismissed. It was under these circumstances that the petitioners filed the petition under Article 32. The grounds against the decision of the Board which the petitioners seek to raise by their present petition are exactly the same as the grounds which they had raised before the Allahabad High Court; and so it is urged by the respondents that the present petition is barred by Res Judicata.

Held: Supreme court held that if the order is pronouced in a writ petition , in limine, it would be a bar but where order is without a speaking order, such dismissal cannot be treated as creating a bar or res-judicata.

Daryao and Ors. vs. The State of U.P. and Ors. (27.03.1961 - SC) : MANU/SC/0012/1961

Foreign Judgement not conclusive

Section 13: This section states that the indian court will not enforce a foreign judgment if the judgment is not that of a competent court.

Whether Indian courts enforce a foreign judgment if the judgment is not that of a competent court.

Facts: The first appellant and the first respondent were married at Tirupati on February 27, 1975. They separated in July 1978. The first appellant filed a petition for dissolution of marriage in the Circuit Court of St. Louis County Missouri, USA. The first respondent sent her reply from here under protest. The Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of the first respondent. The first appellant had earlier filed a petition for dissolution of marriage in the sub-court of Tirupati. In that petition, the first appellant filed an application for dismissing the same as not pressed in view of the decree passed by the Missouri Court. On August 14, 1991 the learned sub-Judge of Tirupati dismissed the petition. The first appellant married the second appellant in Yadgirignita. Hence, first respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Missouri Court. By his judgment of October 21, 1986, the learned Magistrate discharged the appellants holding that the complainant, i.e., the first respondent had failed to make out prima facie case against the appellants. Against the said decision, the first respondent preferred a Criminal Revision Petition to the High Court and the High Court by the impugned decision , set aside the order of the Magistrate holding that a photostat copy of the judgment of the Missouri Court was not admissible in evidence to prove the dissolution of marriage. The Court further held that since the learned Magistrate acted on the photostat copy, he was in error is discharging the accused and directed the Magistrate to dispose of the petition filed by the accused, i.e., appellants herein for their discharge, afresh in accordance with law. It is aggrieved by this describe that the present appeal was filed.

Held: Supreme Court held that if a foreign judgement is not passsed merits of the case, the courts in India will not recognise such judgment.

Y. Narasimha Rao and Ors. vs. Y. Venkata Lakshmi and Ors. (09.07.1991 - SC) : MANU/SC/0603/1991

Place of institution of suits where local limits of jurisdiction is uncertain

Section 18: This section states the place of institution of suit where local limits of jurisdiction of Courts are uncertain

Whether Ghaziabad court had territorial jurisdiction to try the suit

Facts: Appellant filed a suit against the Respondent to protect his copyright, trade marks and common law rights as regard his art work/ trade mark. Appellant filed a suit before the District Judge, Ghaziabad. The Addl. District Judge passed an order of injunction. Respondent filed an appeal before the High Court of Allahabad. High Court held that the Ghaziabad Court had no territorial jurisdiction to try the suit. Against the said order, the Appellant approached the Supreme Court.

Held: Supreme Court held that where it is uncertain as within whose jurisdiction of two or more courts the immovable property is situated, any of those courts may try the suit relating to that suit property and disposed of the matter and its decree shall have the same effect as if the property is situated within the local limits of its jurisdiction

Dhodha House and Ors. vs. S.K. Maingi and Ors. (15.12.2005 - SC) : MANU/SC/2524/2005

Suits to be instituted where defendants reside or cause of action arises

Section 20: This section provides the rights to the plaintiff to institute suit proceedings at a place where the defendant(s) are actually and voluntarily residing or carry on the business for gain.

Whether a suit is maintainable against the Government anywhere in the State because the State is deemed to carry on business everywhere in the country

Facts: The appellant, a contractor entered into a construction contract with the Military Engineering Service for making some additional construction in the factory in the State of Uttar Pradesh. The contract was entered into at Bareilly in Uttar Pradesh. A dispute arose in regard to the execution of the contract between the contractor and the respondent, Union of India. An Arbitrator was appointed who in due course rendered an award in favour of the contractor. The contractor instead of instituting an appropriate proceeding in Uttar Pradesh where the contract was executed and the work was carried out, instituted a proceeding on the original side of the Delhi High Court. By this proceeding the contractor prayed for making the award a rule of the Court under Sections 14 and 17 of the Indian Arbitration Act, 1940. The respondent raised a plea to the effect that the Delhi High Court had no Jurisdiction inasmuch as the cause of action had arisen at a place in Uttar Pradesh and that the contract was also executed at Bareilly in Uttar Pradesh.

Held: In order to end the controversy on the issue whether a suit is maintainable against the Government anywhere in the State because the State is deemed to carry on business everywhere in the country , the Supreme Court said that if the activity of the state is soveriegn in nature the suit aginst the government can be filed only at the place where the cause of action has arisen in full or in part. As against this, if the activities of State are commercial in nature, then the suit can be filed at the place where the cause of action has arisen in full or part and also at the principal place of business or principal office or the branch office, if the dealings have been there.

Bakhtawar Singh Bal Kishan vs. Union of India (UOI) and Ors. (10.02.1988 - SC) : MANU/SC/0298/1988

Res Judicata

Section 11: The principle of Res Judicata in a nutshell means that once a matter is finally decided by a competent court, no party can be permitted to reopen it in subsequent litigation

Interpretation of Explanation VIII to Section 11 of the CPC was under appeal.

Facts: The conflict of judicial opinion among the High Courts in interpretation of Explanation VIII to Section 11 of the CPC, as introduced by the CPC (Amendment) Act, 1976, is to be resolved in this appeal. Kutty Amma executed a settlement deed in favour of her husband giving life-estate to him, and vested remainder in favour of the respondent. She died in the year 1971. Her husband alienated the property in 1972 by a registered sale deed in favour of Narayanan Nair and Chennan. The respondent filed a suit to restrain the appellant from alienating the properties and committing acts of waste. Pending the suit, the appellant purchased the suit property from Narayanan Nair and Chennan. The trial court, by its judgment and decree , decreed the suit holding that 'the husband' had no right to alienate the lands and permanent injunction was issued restraining him from committing acts of waste. The appeal by 'the husband' was dismissed. The appellant, being not a party to the earlier suit, when he was committing acts of waste the respondent filed another suit against 'the husband' and the appellant for perpetual injunction restraining them from committing the acts of waste. The suit was decreed. Therein the validity of the appellant's title was left open. The respondent filed another suit in Court of Subordinate Judge for declaration of his title and possession against the appellant. The trial court by judgment and decree, decreed the suit and granted mesne profits. On appeal, it was confirmed. The second appeal was dismissed. Thus the conflict of judicial opinion among the High Courts in interpretation of Explanation VIII to Section 11 of the CPC was under appeal.

Held: The court held that Section 11 should be read in harmony with explanation VIII. An order or an issue arising directly and substantially between the parties and decided finally by the competent courts or tribunal even though of limited jurisdiction , will operate as res judicata in a subsequent suit or proceeding.

Sulochana Amma vs. Narayanan Nair (24.09.1993 - SC) : MANU/SC/0047/1994