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TUTORIAL-I

X lost a suit pertaining to the ownership of white acre . After the decree had been passed,

while attending a marriage ceremony he per chance meet his maternal uncle who had been

residing in Canada, who was on short visit to India. Material to state that it was for the

first time that the maternal uncle had met the person who had filed the suit. During the

conversation the maternal uncle informed the plaintiff that his grandfather had made a

will by which white acre was bequeathed to the plaintiff. According to him this will should

be somewhere in the old ancestral house. The plaintiff after some days, visits his ancestral

home and searches for the will. In a room stacked with old and moth eaten books that he

lays his hand on an envelope and discover the will. The said will is a material document so

relevant that had this been produced before the trail court the plaintiff would have become

the title holder of white Acre. Analyze whether these facts justify the filing and

maintainability of REVIEW PETITION.

In the present case the review petition must not be entertained.

Review literally and even judicially means re-examination or re-consideration of its own

decision by the very same court. Basic philosophy inherent in it is the universal acceptance of

human fallibility. An application for review may be necessitated by way of invoking the doctrine

‘actus curiae neminem gravabit ’ which means an act of the court shall prejudice no man. The

other maxim is, ‘lex non cogit ad impossibillia’ which means the law does not compel a man to

do that what he cannot possibly perform.

Section 114 of the Code of Civil Procedure provides for a substantive power of review by a civil

court and consequently by the appellate courts. Section 114 of the code although does not

prescribe any limitation on the power of the court but such limitations have been provided for inOrder 47, Rule 1 of the CPC.

The grounds on which review can be sought are enumerated in Order 47, Rule 1 CPC

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So the circumstances when review lies are

(a) cases in which appeal lies but not preferred,

(b) cases in which no appeal lies,

(c) decisions on reference from Court of Small Causes; and

the grounds are

(i) discovery of new and important matter or evidence, after the exercise of due diligence, was

not within his knowledge or could not be produced by him at the time when the decree was

passed or made, or 1

(ii) mistake or error apparent on the face of the record, or 2

(iii) any other sufficient reason mean a reason sufficient on grounds.3

The party seeking review must show that he exercised greatest care in adducing all possible

evidence and that the new evidence is such as is relevant and that if it had been given in the suit

it might possibly have altered the judgment. It is not the discovery of new and important

evidence alone which entitles a party to apply for a review, but the discovery of any new and

important matter which was not within the knowledge of the party when the decree was made.

An application for review on the ground of discovery of new evidence should show that: (i) such

evidence was available and of undoubted character; (ii) that the evidence was so material that its

absence might cause a miscarriage of justice; and (iii) that it could not with reasonable care and

diligence have been brought forward at the time of the decree. The applicant has, however, to

satisfy that there was no remissness on his part and it is not allowed when any of the party was

negligent in producing evidence in the court of law. In Chajju Ram v Neki4 review petition was

not allowed when lawyer of one party was negligent to produce documents in the court of law

which resulted in his client downfall in the suit.

1 Nundo lal case AIR 1918 Cal 618

2 Haridas v USha Rani Banik(2006)4 SCC 78

3 Hari Shankar v Anath Nath AIR 1949 FC 106

4 A. I. R. 1922 P. C. 112

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Considering the facts given, Mr. x lost the suit pertaining to ownership of white acre. Mr. X

should have searched all the places where documents relating to white acre could have been

found including his ancestral house, but plaintiff was negligent and has not taken due care to find

the will material to case which could have altered the decree. Since will was later discovered in

an envelope found in a room stacked with books. This shows that plaintiff has not exercised due

diligence while looking for material documents. Even if for argument sake it is agreed that

plaintiff had no knowledge of will, he happened to know about it per chance through his

maternal uncle then too other argument will come into picture that one before filing a suit must

be diligent enough to arrange all documents relating to suit and title of white acre, at all possible

place.

Therefore the present review petition hence not maintainable.

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TUTORIAL-II

Punjab National Bank gave a car loan of rs.1 lac to Mr. X. While giving the loan MR X,

they also needed two sureties who would act as guarantee for X in case he defaults in the

repayment of the loan. Subsequently Mr. X fails to discharge the said loan and defaults in

making good the said loan. The bank contact you for appropriate advice as to whether

separate suit has to be filed against Mr. X and the sureties or it would be enough to make

all the person as defendants. Discuss.

In the present case Punjab National bank is advised to file a single suit thereby making Mr X as

well as the two sureties party to the suit.

All persons may be joined in one suit as defendants where — (a) any right to relief in respect of,

or arising out of, the same act or transaction or series of acts or transactions, is alleged to exist

against such persons, whether jointly, severally, or in the alternative; and (b) if separate suits

were brought against such persons, any common question of law or fact would arise (Order I,

Rule 3).

Thus where A received injuries while riding in an omnibus belonging to B through a collision

between that omnibus and a cart belonging to C, A may join B and C as defendant in one suit for

damages for personal injury caused by their negligence because the injury to the plaintiff arose

from the same transaction or series of transactions and the case involves common question of

fact.

The underlying object of rule 3 of order 1 is to avoid multiplicity of suits and needless expensed.

5The provisions hence should be construed liberally. Where it appears to the court that any

joinder or plaintiffs or defendant may embarrass or delay the trail the court may order for

separate trial. A plaintiff is a dominus litis and has a right to chose his adversary against whom

he wants to fight and from whom he seeks relief. It is not province of a court of law to interferewith that right.

All person against whom relief is sought form part of same transaction than all those person must

be made parties to the suit as a necessary party. A necessary party is a party without impleading

5 Razia Begum v Sahebzadi Anwar AIR 1958 AP 195

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whom a claim cannot be legally settled by court. In other words, in the absence of a necessary

party, no effective and complete decree can be passed by the court.

But distinction has to be made between necessary party and proper party. In the case of non-

joinder of necessary parties the court cannot pass an effective decree in their absence. In such a

case the suit cannot proceed and is liable to be dismissed if the plaintiff on being provided with

an opportunity to amend the plaintiff refuses to do so. But in the case of non-joinder of proper

parties the non-joinder is not fatal.

The court can add the absent party or try the suit without him. Where nothing is sought against a

particular party, non-joinder of such party has no effect. Order 1, Rule 9 of the Code deals with

non joinder of parties, but is only a procedural provision, which does not affect the substantive

rights and duties of parties

There are two tests for determining the questions whether a particular party is necessary party to

the proceedings:

There has to be a right of relief against such a party in respect of the matters involved in

the suit.

The court must not be in a position to pass an effective decree in the absence of such a

party

Analyzing the given situation, the bank is the plaintiff who sought remedy against Mr. X who

took loan from bank and made default. While giving the loan two sureties became the guarantor

for X in case he defaults in repayment. Hence Bank can claim remedy form X as well as from

guarantor who became sureties and thereby made themselves part of same transaction where

Bank and Mr X was involved. Therefore Bank while filing suit can make the two guarantor

along with X as a defendant to the suit since they are the necessary party without whom legallythe suit cannot be adjudicated.

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TUTORIAL III

Mr. X has been arrayed as defendant in a suit. The civil court issues a summon to him to

answer the claim. The Process Server who took summon knocked at the door of the

defendant to serve summon. An Old lady half senile opened the door and informed the

process server that defendant is not presently residing in premises and she was the mother

of defendant. The Process Server served the summon on the lady. Discuss as regard the

validity of said service.

The said service is not valid.

A summon is an order from court to an individual to appear before it at a specified time and

place. A summon may be issued in both criminal and in civil cases. When a suit is instituted by

the plaintiff the court orders to issue summons to the defendant. This is to permit the defendant

to appear and answer the claim of the plaintiff. This ensures a fair trial. Without a duly served

summons no further action can be taken against the defendant. So sending of summons is very

important in a civil case.

If one is sued, and that one is not served properly, this fact can get his case thrown out of court or

help him to vacate a judgment. In fact, the best reason to vacate a judgment would be improper

service.

First of all, service of due process is a privilege set forth by the Constitution. This means that all

citizens of the India hold the right to be informed of being summoned as specified in the fifth and

sixth amendments of the Constitution. A process server is the messenger who "serves" a person

with the notification that states the legal issues involved in a lawsuit. A process server delivers

these papers in a timely manner and then there is verification a defendant was served a Summons

and Complaint.

Service of process is necessary for many reasons, but the primary reason is to make sure that the

procedure established by law is upheld in India . If papers aren't served properly, the court is not

able to rule on a case relating to an individual if they were not legally made aware of it. If service

is determined to be improper, the entire case may be thrown out. This makes it even more

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essential to be aware of the laws of your state pertaining to the correct way to serve a defendant

legally.

Another reason service of process is important is because being properly "served" gives legal

proof a defendant received the notice for which they are being sued. As stated before, if a

defendant is not properly served a Summons and Complaint, their legal rights have not been

upheld and the lawsuit can be thrown out of court.

As a general summon must be served to defendant personally. But section 15 says

” Where service may be on an adult member of defendant's family

Where in any suit the defendant is absent from his residence at the time when the service of

summons is sought to be effected on his at his residence and there is no likelihood of his being

found at the residence within a reasonable time and he has no agent empowered to accept

service of the summons on his behalf service may be made on any adult member of the family,

whether male or female, who is residing with him.

Explanation- A servant is not a member of the family within the meaning of this rule. ”

The philosophy behind incorporating this section is that in case defendant cannot be found at his

place of residence and there is no likelihood of him being found then the other adult member of

his family residing with the defendant so that that member of family can communicate to the

defendant that his presence is required in the court.

In the given case the defendant presence was required at the court that’s why summon was issued

in his name. This issuance of summon cast a duty on process server to serve the summon to

defendant effectively. But the process server did not perform his duty efficiently and served the

summon on the lady who though happen to be the member of defendant family was half senile

and might not communicate the same to defendant on his return. A process server is required to

be reasonable, prudent and must exercise due diligence while serving summon because his one

wrong step would not ensure fair trail and lead to the violation of principles of natural justice.

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TUTORIAL IV

Annex a copy of summon published under order v rule xx in a newspaper and published

and circulated in New Delhi. Analyze whether the said publication is in terms of

OVRXX1(A).

Three basic methods are used for service of process: (1) actual, or personal, service, (2)

substituted service, and (3) service by publication. Although each method is legally acceptable,

Personal Service is preferred because it is the most effective way of providing notice and it is

difficult for the defendant to attack its legality. Personal service means in-hand delivery of the

papers to the proper person. Traditionally personal service was the only method of service

allowed by law because it was best suited to give the defendant notice of the proceedings.

A third method of service is publication of a notice in a newspaper. Publication is also called

constructive service because the court construes it to be effective whether the defendant actually

reads the notice or not6. Generally, service by publication is allowed only by leave of the court,

which usually grants permission only when the plaintiff can show that no other method of

service can be effected. Usually the legal notice must be published in at least one newspaper of

general circulation where the defendant is likely to be found or where the court is located, or in

both places. Ordinarily the notice must be published on more than one occasion, such as once a

week for three weeks.

In truth, courts realize that defendants rarely read notices published in newspapers, but the effort

must be made when the defendant cannot be found and served in any other way. Plaintiffs prefer

not to use publication because it is expensive and a court might later find that the defendant

could have been served personally.

20. Substi tuted service.- (1) Where the court is satisfied that there is reason to

believe that the defendant is keeping out of the way for the purpose of avoiding

service, or that for any other reason the summons cannot be served in the

ordinary way, the court shall order the summons to be served by affixing a copy

6 Sunil Poddar v Union Bank Of India(2008)2 SCC 326

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thereof in some conspicuous place in the court house, and also upon some

conspicuous part of the house (if any) in which the defendant is known to have

last resided or carried on business or personally worked for gain, or in such

other manner as the court thinks fit.

(1A) Where the court acting under sub-rule (1) orders service by an

advertisement in a newspaper, the newspaper shall be a daily newspaper

circulating in the locality in which the defendant is last known to have actually

and voluntarily resided, carried on business or personally worked for gain.

(2) Effect of substituted service — Service substituted by order of the court shall

be as effectual as if it had been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed — Where service is

substituted by order of the Court, the Court shall fix such time for the appearance

of the defendant as the case may require.

The summon published in newspaper which is attached along with this tutorials is in terms of

OVRXX1(A) because the newspaper is a daily newspaper having wide publication in the area

where defendant known to last reside so as he can be made aware that his presence is required by

the court. The intention behind this section is that newspaper is that one thing which is accessible

to every common man and is widely read. So in case defendant is not found or he is escaping

from process server to effect service , newspaper cannot be avoided and hence he cannot take

plea of ineffective service.

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TUTORIAL VIII

Explain the position of law where defendant has been proceeded exparte and on the date of

subsequent hearing wants to participate in the proceeding. Explain as to whether he is

required to file application before the court for the said relief .

Order 9 rule 6 says:

“

Procedure when only plainti ff appears.- (1) Where the plaintiff appears and the defendant does

not appear when the suit Is called on for hearing, then

(a) When summons dul y served — lf it Is proved that the summons was duly served, the court

may make an Order that the suit be heard ex parte;

(b) When summons not duly served — if it is not proved that the summons was duly served, the

court shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time — if it is proved that the summons was served on

the defendant, but not insufficient time to enable him to appear and answer on the day fixed in

the summons, the court shall postpone the hearing of the Suit to a future day to be fixed by the

court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owning to the plaintiff’s default that the summons was not duly served or was not

served in sufficient time, the court shall Order the plaintiff to pay the costs occasioned by the

postponement. “

Order 9, Rule 6, is not meant to be a penal clause but is only meant to prevent undue delay. If the

defendant chooses not to appear after he has been served, the court may proceed in his absence,

but if he subsequently appears he ought not to be debarred from taking any further Part in the

proceedings even if he can show no good cause for his absence: all that the Code says in Order 9,

Rule 7, is that, if he does show good cause, the ex parte order may be set aside and the defendant

heard in answer to the suit, as if he had appeared on the date fixed. That means that the case is

put back to the stage at which it had arrived when the defendant first failed to appear; and the

defendant suffers no loss or disadvantage through his non-appearance except perhaps an order

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for costs. If however the defendant fails to show good cause, he cannot claim any rehearing, and

what has already taken place in his absence must stand. As regards future proceedings however

he should not he debarred from appearing and contesting the suit.

in Venkatasubbiah v. Lakshminarasimhan,7

observed:

"One cardinal principle to be observed in trials toy a court obviously is that a party has a right to

appear and plead his cause on all occasions when that cause comes on for hearing. It follows that

a party should not be deprived of that right, and in fact the court has no option to refuse that

right, unless the Code of Civil Procedure deprives him of it. Is there any rule of procedure then

which gives power to a court to say to a party when he appears to plead his case that it cannot

heat him because at the previous hearing he was absent? I do not so read Order 9, Rule 7. That

applies to a Party who wishes to be relegated back to the position which he would have been in if

he had appeared at a previous hearing at which he was absent, and who wishes the Proceedings

taken in his absence to be taken over again in his presence, so that he may regain the

opportunities of cross-examination, etc., which he lost by his absence. After all "ex parte" only

means that the party has not been heard because he was absent and the adjournment of the

Rearing "ex parte" in. the words of Rule 7 applies only to the heaving on the particular day when

that hearing and adjournment "ex parte" was made."

In the words of justice Wallace “even a defendant who fails to show good cause for his previous

non-appearance is not debarred from participating in the further conduct of the case and that the

original order only covers the Period during which the party was originally absent. He proceeds

to point out that where good cause for non-appearance is shown, the party would be relegated

back to the position which he would have been put in if he had appeared at the previous hearing

i.e., that proceedings which have taken place in his absence could be re-opened so as even to

give him the opportunity of cross examining witnesses that had been examined in his absence.

This principle has generally been adopted in most of the reported cases vide Pattanna v. Neeli Chetti, ILR 51 Mad 597: (AIR 1927 Mad 1197): Arumugam Pillai v. Kandaswami Pillai, AIR

1928 Mad 211 (2); and Harba v. Mt. Chandrabhaga, AIR 1931 Nag 122.”

7 AIR 1925 Mad 1274.

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The position is that the sdefendant against whom an order declaring him ex parte was passed on

the date of the first hearing is entitled to come in and take part in the trial at a later stage. If he

agrees to be bound by what has taken Place during his absence he need not make an application

under Order 9, Rule 7, C.P.C., and get the order set aside; he can continue from the stage at

which he appears.

However, if he desires to cross-examine the witnesses examined before he entered appearance he

can apply under Rule 7 and get an order, in which case he can claim an opportunity to cross-

examine the witnesses examined before he entered appearance. In such a case, what he seeks is

to be relegated back to the position he would have been in if he was present on the day on which

evidence was taken. Had he been so Present he would have got an opportunity to cross-examine

the plaintiff's witness. This is the right which he can exercise after getting an order under Order

9, Rule 7.

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TUTORIAL IX

It is imperative on a court of law to put back the defendant in possession of a property

which has been attached in execution of a decree where the decrees have been set aside.

Discuss.

Let us understand the above through an illustration:

Illustration ‘B’ is in a possession of a Black Acre. ‘A’ files a suit for ownership against ‘B’. ‘B’

lost the suit and by the ex parte decree was evicted by ‘A’. ‘B’ moves an application under Order

IX rule 13 and the court comes to the conclusion that the decree needs to be scrapped away. The

issue which arises is whether the clock should be put back to the position, where ‘B’ was in

possession of Black Acre?

As ‘B’ was first in possession and it was because of the decree that ‘B’ was evicted from the

Black Acre. After the decree is scrapped off, ‘B’ should be restored the possession of Black

Acre, as the matter should be said to be still pending. Moreover the decree which empowers ‘A’

to evict ‘B’, and when that decree is nullified it demands that ‘B’ should be restore the

possession of Black Acre.

Section 144 of CPC also says the same, it attacks that if a decree or an order is varied or reversed

or is set aside or modified, an application u/s 144 made to the court which passed that order or

decree will act as if no decree was passed and will put the parties back to the same position

before the proceedings. A status quo would be maintained of the initial stage of the suit.

Illustration: In the matter between A and B, a decree was passed and B had to pay Rs 10 lack to

A. B sold Black Acre to pay Rs. 10 lack to A. Later B filed an appeal that the decree is erroneous

and the court set aside the decree. After hours the decree was set aside, B filed an application u/s

144 for the restitution of Black Acre. The question in debate is, whether Black Acre can be

restituted in the particular situation?

Section 144 states further that any order made under the section for refund, payment of interest,

damages, compensation and mesne profit must be consequential to the variations, reversal,

setting aside or modification of the decree or order. In the above case restituting Black Acre

would not be consequential as those were other ways which ‘B’ could have chosen to satisfy the

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decree and moreover restituting black acre would be unjust to the third party who bought black

acre.

Coming to the case laws, the doctrine of restoration was first evolved by Cairn in the land mark

judgment of Rodger vs comptoir de Paris,8

where he held that the principle amount along with

the interest should be restored.

In India the Privy Council in the case of The Bexhan vs. Kedar Nath Marwari ,9 it was held that

relief of restoration is not discretionary. If an erroneous decree has been passed by the court, then

the person affected has to be put back onto the position as if no decree was passed. The Supreme

Court in Lala Bhagwan Das vs Lala Krishna Das,10 reiterated the Privy Council and held that

the Section 144 has the same powers.

In Uni on Carbide Corp. v. Uni on of India ,11 the settlement in Bhopal Gas Disaster case was set

aside and Union Ccarbide was entitled to restitute the entire amount deposited with interest.

8 1871 LB3 PC 465.

9 1922 PC.

10 1953 SCR 559.

11 AIR 1992 SC 248.

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TUTORIAL X

An applicant has challenged as unconstitutional the provisions of admissions in a

university. Analyse the essential postulates for the grant of interim relief and whether such

an applicant shall be in a position to get admission under provision of Order XXXIX Rule

1 and 2.

Every court is constituted for the purpose of administering justice among parties and, therefore,

must be deemed to possess all such power as may be necessary to do full and complete justice to

the parties before it.

It is well settled principle of law that interim order can always be granted in the aid of and as

ancillary to the main relief available to the party on final determination of his rights in asuit or

any other proceeding. Therefore, a court undoubtedly possesses the power to grant interim relief

during the pendency of the suit.

Object of granting Interim Relief

The primary purpose of granting interim relief is the preservation of property in dispute till legal

rights and conflicting claims of the parties before the court are adjudicated. It aims at striking a

delicate balance between two conflicting interests i.e. injury and prejudice, likely to be caused to

the plaintiff if the relief is refused; and injury and prejudice likely to be caused to the defendant

if the relief is granted. The court in the exercise of sound judicial discretion can grant or refuse

the interim relief.

The underlying object of granting temporary injunction is to maintain and preserve status quo at

the time of institution of the proceedings and to prevent any change in it until the final

determination of the suit. It is in the nature of protective relief granted in favour of a party to

prevent future possible injury.

Order XXXIX Rule 1 and 2

1. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by

affidavit or otherwise —

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(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by

any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to

defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the

plaintiff in relation to any property in dispute in the suit,the court may by Order grant a

temporary injunction to restrain such act, or make such other Order for the purpose of staying

and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or

dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any

property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further

orders.

2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for

restraining the defendant from committing a breach of contract or other injury of any kind,

whether compensation is claimed in the suit or not, the plaintiff may, at any time after the

commencement of the suit, and either before or after judgment, apply to the court for a

temporary injunction to restrain the defendant from committing the breach of contract or

injury complained of, or any breach of contract or injury of a like kind arising out of the same

contract or relating to the same property or right.

(2) The court may by Order grant such injunction, on such terms, as to the duration of the

injunction, keeping an account, giving security, or otherwise, as the court thinks fit.

Principles for holding Interim Relief

Generally before granting interim relief, the Court must be satisfied about the following factors:

(i) Whether the plaintiff has a prima facie case?

(ii) Whether the plaintiff would suffer irreparable injury ?

(iii)Whether the balance of convenience is in favour of the plaintiff?

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The above three rules are described as “three pillars” on which foundation of every order of

interim relief rests. All these three elements are of extreme importance.

Power to grant interim relief is extraordinary in nature and it can be exercised cautiously and

with circumspection. A party is not entitled to this relief as a matter of right or course. Grant of

injunction being equitable remedy, it is in the discretion of the court and such discretion must be

exercised in favour of the plaintiff only if the court is satisfied that, unless the defendant is

restrained by an order of injunction, irreparable loss or damage will be caused to the plaintiff. In

reply to the question above A court cannot give an answer in affirmation when it comes to the

grant of interim relief neither it can give an answer to negate the rights of a person. So, to

maintain the delicate balance between the three basic principles of grant of interim relief and to

meet the ends of justice in my opinion the Court will pass any such order as it deems fit but

cannot pressurise the administration to give the admission to the applicant till the pendency of

the case.

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