After passing out, in early 1980s, from awesome campus of Mahindra College Patiala, on completion of my graduation in English Literature, I thought, joining M.A. (English) was the only and the most natural way to go forward, not only because I thought it was my natural calling but also because I thought it would see me through to the Central Civil Services. My father, then a judicial officer, however, persuaded me to join the LLB course, for he thought it offered better career prospects and I, in the end, very reluctantly agreed to fall in line.

Just as we were nearing the completion of LLB, everybody worriedly reflected upon, “what next”. As far as I remember no one, enthusiastically planned on setting up his own law practice. I too followed the then `National hobby’ and started preparing for the Civil Services. As we went along, we often heard of some college mate, upon completing his MBA, joining a well-known private company on a “handsome package” and we would think, wow! Some went to banking and some to public sector undertakings and seemingly, the more accomplished amongst us, cleared the Civil Services, leaving us envious, as we thought, “wow! A regular monthly salary, with power & influence to boot as well, how damn lucky”. Eventually, I decided to give up chasing that elusive dream of joining civil services and plunged into the Law Practice. Soon I shifted to Chandigarh and started my own practice at Punjab & Haryana High Court in the right earnest. It is as a lawyer you realize what `uncertainty in life’ really means. As once the Hon’ble Mr. Justice G.S. Singhivi remarked in court that a lawyer often does not know how and when his next meal is going to come from. However, like many before me, I too realized soon that eventually a lawyer’s persistence and sheer hard work starts bearing fruit. It gradually dawns upon him that he on account of his dogged persistence is not only able to make more money than the most `handsomest of the packages’ that some of his erstwhile peers are getting but also on account of being able to get judicial “decrees” and the “writs” issued by the process of law, is able to exert a considerable amount of influence and respect in society. Those amongst the lawyers who could move up to the `Bench’, needless to say, outshone all services, in the arena of `power’, influence and respect.

I am however, only now beginning to realize, that the best was still yet to come, especially for those who steadfastly kept pulling themselves along the path of the legal practice. Almost suddenly, all those college mates who had joined any kind of services, started staring at the impending retirement and then there actually were retirements all around but the lawyer within us (the lawyers) was telling us, “what retirement? I have just started and all that tremendous knowledge and experience that I have gained over the years will continue to be put to their best use and cannot be allowed to go waste, God willing, not for the next, may be, twenty years”. Quite clearly the lawyer is, in fact, the proverbial tortoise.

Discussion over the Legality of Intervention by a third party in a Criminal Proceedings has drastically changed over a time. That traditionally No Stranger has a right to intervene in the criminal proceedings in “Thakur Ram v. State of Bihar” cited in AIR 1966 SC 911 : 1966 SCR (2) 740 the Apex court had held that “the state will take all necessary steps on behalf of the aggrieved party in criminal matters by making the state the custodian of the social interests of the community at large, the court ruled out the locus standi of any private party that tries to intervene”.

2. “Locus Standi” refers to the Legal capacity of a person to take a stand before the court, it is the right of a party or a person to prove before the court its stand due to its connection to and harm from the law or action challenged to support that party’s participation in the case. The existence of Locus standi is necessary for any legal process of approaching the courts i.e., filing a suit or an action before the court, if the person lacks “Standi” to appear in the case the court may reject their arguments without going into the facts, merits of the case.

3.The intervention of third parties clearly cited in “Rajubhai Dhamirbhai Baria v. State of Gujarat” cited in 2004 CriLJ 771 : (2004) 1 GLR 404. It iterated the settled position of third parties having no locus standi for intervention in the criminal Proceedings. The Code of Criminal Procedure also makes it clear that Strangers have no right to appear before the court.

4. Subsequently the judgment given in “Subramanian Swamy v. Raju” cited in (2014) 8 SCC 390 stands on the same principle but recognizes the limited rights of third parties in certain exceptional situations.

5.The contention of the people who support the right of the third parties to intervene in the criminal proceedings that one of the fundamental principles of the criminal justice system is that wrong done to anyone is a wrong done to society. So, any person on behalf of society must have a right to seek justice.

6. In Criminal Proceedings, the State prosecutes the offender and the de-facto complainant or the victim does not have much role in the prosecution of the offender. However, this view has ironically changed after the Code of Criminal Procedure amendment Act 2008(5 of 2009), wherein certain amendments were made in the Cr.P.C to facilitate the participation of victim in criminal prosecution of an offender.

7. That according to Section 2(wa) definition of ‘victim’ has been added quoted herein below: 2(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;

8. It is pertinent to mention that in Sub Section 8 of Section 24 of Cr.P.C a proviso has been added whereby court was authorized to permit the victim to engage an Advocate of his choice to assist the prosecution. The relevant provision of Section 24(1) and 24(8) are,

a) Section 24 relates to Public Prosecutors which states as infra:

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.]

Further the victim is also given right to prefer an appeal under Section 372 Cr.P.C.

b) Section 372 relates to No appeal to lie unless otherwise provided

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

9. From the above it is clear that legislature made certain amendments vide Act No. 5 of 2009 in Cr.P.C. by adding definition of victim and giving rights to victim to engage counsel of his choice during prosecution of accused under section 24 and also giving right to file an appeal under section 372.

10. The Hon’ble High Court at Allahabad in Lokesh Singh v. State of Uttar Pradesh, reported in 2013 (83) ACC 379, observed that the objective to be achieved by the aforesaid amendment as per proviso added in Section 24(8) of Cr.P.C seems to extend help the victims and to give more active role in dispensation of the criminal justice and to provide active participation of the victim in the justice delivery system keeping in view the concept of fair trial enshrined under article 21 of the Constitution of India.

11. Section 301 Cr.P.C provides that the Public Prosecutor or Assistant Public Prosecutor in-charge of a case may appear without any written authority before any court in which that particular case is under inquiry, trial or appeal. Sub-section 2 provides that if any private person instruct a pleader to prosecute any person in any court, the Public Prosecutor in charge of the case shall conduct the prosecution and pleader so instructed shall act therein under the direction of Public Prosecutor and may with the permission of the court submit written arguments after the evidence is closed in the case. Section 301 Cr.P.C. has not been amended vide Act No. 5 of 2008.

a. Proviso added to section 24(8) Cr.P.C, provides that victim defined in Section 2(wa) may be permitted to engage an advocate of his choice to assist the prosecution under this sub-section. Sub-section 8 provides appointment of Special Public Prosecutor, different from Public Prosecutor appointed under Section 7 of Sub-section 24 of Cr.P.C. The basic distinction drawn in the statute by introducing the proviso that if the victim defined under Section 2(wa) Cr.P.C, is permitted to engage a lawyer he will acquire status of Special Public Prosecutor subject to riders imposed under the proviso.

b. In proviso added to Section 24(8) Cr.P.C, the words used are “assist the prosecution” and not to ‘assist the public Prosecutor’ as mentioned in Section 301 Cr.P.C. There is difference in the scheme of two sections. From 6 perusal of Subsection 2 of section 301 Cr.P.C. made it clear that if in any case private person instructs a pleader to prosecute any person in any court even though the Public Prosecutor in charge of case shall conduct the prosecution and the pleader instructed shall act therein under the directions of the Public Prosecutor. Up to this stage no permission of court is needed for appointment of pleader by a private person. The permission is only required to the pleader if he wants to file written argument in the case. However after insertion of proviso to Section 24(8) Cr.P.C. the court can permit a victims advocate to assist the prosecution. The status and position of Advocate engaged by the victim would be changed because in that situation the court at the very inception may permit the Advocate of the choice of the victim to participate in the proceeding and to assist the prosecution and not to the public prosecutor. Prosecution includes investigation, enquiry, trial and appeal within the meaning of Section 24 Cr.P.C. Section 301 Cr.P.C. deals with only inquiry, trial or appeal. Inquiry has been defined in Section 2(g) Cr.P.C., means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. As such inquiry is different from investigation as defined in Section 2(h) Cr.P.C.

12. In view of the aforesaid definition the ‘end’ for which a plan or project is carried out is called prosecution. In respect of proviso to Section 24(8) Cr.P.C. prosecution in respect of an offence begin with putting the law into motion by any aggrieved party or sufferer of crime. The ‘end’ in a prosecution within the meaning of proviso to Sub Section 8 of Section 24 Cr.P.C. would be adjudication of guilt of an offender who is charged with commission of an offence in accordance with procedure established by law in a court constituted under this code. So the prosecution starts with giving information of commission of crime and continued during investigation or inquiry, trial of offender and if any appeal is filed finally end by an order passed in appeal.

13. The whole scheme if taken into consideration for prosecution and trial of an accused the dominant role is played by the public prosecutor but by insertion of proviso to Section 24(8) Cr.P.C. the Court is now authorized to permit the victim to engage a lawyer of his choice to assist the prosecution. The prosecution of an offender is virtually carried out in the court of law constituted under some statute presided over by a judge and not by any party to the proceedings. The public prosecutors, the advocate of the accused or 9 special counsel appointed by the aggrieved person or the Advocate engaged by a victim, all are officers of the court. They all assist the court to arrive at truth during prosecution of an accused. Therefore in Section 24 or in section 301, phrase ‘with the permission of court’ is used. So, once the permission is accorded to the advocate of the victim to assist the prosecution his assistance could not be restricted to the terminology of Section 301, i.e. only to assist the prosecutor. The court in view of the same can permit to advance the oral argument too to the advocate engaged by the victim apart from submission of the written argument. The importance of oral argument cannot be outweighed by saying that right to written argument has been given in Section 301 Cr.P.C.

14. Section 301 Cr.P.C. explicates and envisages that

301. Appearance by Public Prosecutors.

(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case, any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

15. Section 301 Cr.P.C. does not say that oral argument cannot be permitted to an advocate engage by the victim. It only prohibits that if a private party engaged a pleader he can assist the public prosecutor and court may permit him to file the written argument. There is difference between the pleader and advocate. Advocate is treated to be officer of the court and supposed to assist the court in arriving at the truth, so, right to address the court to an Advocate cannot be curtailed while representing his client in the light of provisions of Advocates Act.

16. In view of the Judgement delivered by Hon’ble Apex Court in Poonam v. Sumit Tiwari, reported in AIR 2010 SC 1385, discussed the importance of assistance of a lawyer in the light of Section 35 of Advocates Act and observed that in absence of proper assistance to Court by the lawyer, there is no obligation on the part of the Court to decide the case, for the simple reason that unless the lawyer renders the proper assistance to the Court, the Court is not able to decide the case properly. It is not for the Court itself to decide the controversy. The counsel cannot just raise the issues in his petition and leave it to the Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the Court itself to find out what the points 10 for determination can be and then proceed to give a decision on those points. In case counsel for the party is not able to render any assistance, the Court may decline to entertain the petition. Moreover if the petition is decided in such cases the judgment given may be violative of principles of natural justice as the opposite counsel would not “have a fair opportunity to answer the line of reasoning adopted” in this behalf.

17. Having regard to the above discussion, it is vivid & pellucid that under Cr.P.C it is possible to allow third-party intervention in criminal proceedings. The only problem that arises is with respect to a trial before a Court of Session. Section 302 speaks about trial before a Magistrate. This has to be read with Section 225 Cr.P.C which states that, in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. In my opinion, it makes sense to permit third party intervention in criminal cases.

Conclusion:

In the recent years United kingdom Courts have begun allowing third parties intervention that mostly consist of public bodies NGO’s etc Unlike in constitutional matters, interventions by a private party are only allowed when it has been established that the decisions of the court hearing the case will have much greater implications in the society or a section of society. Even an example where the London recognized the interveners’ contribution was the 2013 case of Hughes cousins-chang was arrested and held overnight with no access to reach his parents or an adult. Despite being a seventeen years old, he was treated an adult. The Haward League on panel reform and Coram Children’s legal center was granted a permission to intervene to make legal arguments on the rights of the young people in the criminal justice.

Hence from the above discussions with respect to the Intervention of third parties in criminal Proceedings is extended but under different circumstances though it is the rare situation as the state considers itself well equipped and motivated to meet the ends of justice conclusively it could be said that the intervention of third parties are envisages under CrPC not as the Legal right but rather as a safeguard embedded to ensure complete justice.

It is a cumbersome task to classify the documents into various categories. The wisdom of the legislature in the year 1872 has to be appreciated in this regard. Not only the classification of documents into different categories have been made but it is equally a tedious task to define differentiate and distinguish each category of document. The classification made by the Legislature is unique and has withstood the testing time of about 150 years.

Documents have been divided into two categories:- (a) Primary Evidence and (b) Secondary Evidence. In this article, my focus is limited to the extent of defining the primary evidence. Under section 64 of the Indian Evidence Act, 1872 (hereinafter called the “Act”), all the documents are to be proved by way of primary evidence except in the cases enumerated under section 65 of the Act. Although the science has not developed in the year 1872 to the extent as it has developed nowadays, yet the legislature had visualized that human mind may devise certain machinery/technique by which he is able to do the mischief to cause a wrongful gain to himself and a wrongful loss to the opponent party.

Definition of Primary Evidence:-

Section 62 of the Act, aptly defines the primary evidence as under:-

62. Primary evidence.-Primary evidence means the document itself produced for the inspection of the Court.

In Black’s Law Dictionary, 6th Edition; Primary Evidence has been defined as under:-

Primary Evidence means original or first hand evidence; the best evidence that the nature of case admits of, the evidence which is required in the first instance and which must fail before secondary evidence can be admitted. That evidence which the nature of the case or question suggest as the proper means of ascertaining the truth, it is the particular means of proof which is the most natural and satisfactory of which the case admits, and includes the best evidence, which is available to a party and procure able under the existing situation and all evidence failing short of such standard, and which in its nature suggest there is better evidence of the same fact is secondary evidence.

This definition given in the Black’s law dictionary also clarifies that the primary evidence is the original or firsthand primary.

Explanation 1.-Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.- Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

For the purpose of a facilitation to understand the true impact and meaning of this definition, two explanations and one illustration are appended therein. The sole purpose of adding explanation is that the legislature wanted to further fortify the definition with illustration, while illustration is added by way of an example to clarify further the true impact of the definition.

Thus, the primary evidence means the original or firsthand information, which the nature of the case admits. The evidence which is required in the first instance to be produced before the court is the primary evidence. No doubt can be attributed to the original document produced before the court. Otherwise also why a party ought not to produce the primary evidence in the first instance.

Explanation No.1:-

When we go through this explanation, it is divided into two parts. The first part provides that where a document is executed in several parts, each part is primary evidence of the document.

An agreement or a compromise is executed between three or more parties. Number of sets of the agreement or compromise are prepared at one and the same time. Each part is signed by the all parties and witnesses at one and same moment in the present of each other. Such parts becomes the primary evidence.

A will, when required to be registered, is to be prepared in duplicate. The copy of will is typed out at the same time. It is signed by the scribe, testator and the witnesses. The second copy is kept by the Sub Registrar at the time of registration of will in his record. First copy of the will is handed over to the testator. Once the copy of will is signed by scribe, testator or the witnesses, it assumes the character of the original document. However, same is applicable in all type of documents viz. sale deed, mortgage deed, gift deed etc. However, the only lacuna in the said copy retained in the office of Sub Registrar is that it is not written or scribed on the proper stamp paper. Non appending of stamp paper has been held by the courts to be in the formed of the secondary evidence, whereas, under section 74(2) of the Act says that public record kept in any state of private documents is covered under the definition of the Public Documents. In the considered opinion of the author, it is submitted that no discrimination should be shown to the original sale deed, mortgage deed, gift deed and the copy of same retained in the office of Sub Registrar, where the said document is registered.

The second part of explanation-1 is a bit complicated, as it provides that if a document is executed in counter part, each counter part being executed by one or some of the parties only, each counter part is primary evidence as against the parties executing it. Thus, applying the dictum of this second part of the explanation, it becomes crystal clear that the copy retained in the office of Sub Registrar, which is duly signed by the scribe, executant and the witnesses becomes the primary evidence and can never be considered as secondary evidence.

Explanation-2:-

This explanation is based on the scientific technique invented by human brain for preparing a large number of copies. The essentials of this explanation are that where a number of documents are all made by one uniform process, as in the case of printing, lithography, photography, each is primary evidence of the contents of the rest, but where they are copies of common original, they are not primary evidence of the contents of the original.

When we analyze this explanation in its entirety, it is deducible from it is that there are different essential and processes prescribed in it. Such different essential and processes have to be separately dealt with.

The opening lines of the explanation reads as, “where a number of documents are made by one uniform process”, it mandates that number of documents are to be prepared. All the documents are to be prepared by one uniform process. If the process of preparation of document is different, then, it will be outside the purview of this explanation. The emphasis of the legislature is of the uniform process. Some further illustrations of uniform process are given in the later part of the explanation.

Printing:- The second part consists of printing. In the year 1872, printing was the main process of preparation of documents. Printing press prepares the copies of documents in the same process and then, these are considered to be primary evidence.

Lithography:- The process of printing from a flat surface treated as to repel the ink except when it is required for printing. You may have seen the printing of fabric by wooden or stone blocks. On the said printed blocks, the human do carry out the designs with the help of needle and thread.

Counter-part:- This word has not been defined anywhere either in the Act or under the General Clauses Act. For understanding the true meaning of the word counter-part we can rely upon Black’s law dictionary 6th Edition, wherein the counter-part has been defined as under:-

In convincing, the corresponding part; a duplicate or a copy. Where an instrument of conveyance, as a lease, is executed in parts, i.e., by having several copies or duplicate made and interchangeably executed, that which is executed by the grantor is usually called the original and rest are counter-parts; although, where all the parties execute every part, this renders them all originals.

Illustration

A perusal of the illustration appended to Section 62 of the Act, provides that if a person is shown to be in possession of number placards, all printed at one time from one original. Anyone of the placards is the primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

A close scrutiny and analysis of this illustration shows that original is one. From that original, a number of placards are printed at one time, then each placards is the primary contents of any other, but no one of them is the primary evidence.

Conclusion:-

From the discussion made above, it can be easily assumed and presumed that there is a fine distinction between the primary evidence in the form of original document and a copy of the document retained by Sub Registrar or any other authority prepared in the same process. In case, the copies retained in the office of Sub Registrar are considered to be the primary evidence a lot of time energy and money will be saved in proving the said document as a primary evidence. A certified copy of a public document under section 74 of the Act is per se admissible and requires not proof unless covered under the contours of section 68 of the Act.

[1*] The author passed degree in Master of Laws from the Panjab University Chandigarh in the year 1978. He has been practicing on civil side at Ludhiana. He has been a guest professor in Panjab University Regional Centre, Ludhiana. The author has written various articles, which have been published in the journals. The author has also addressed various webinars on facebook/youtube on various legal aspects to enlighten the younger generation. He had judged various moot competitions held in PURC, Ludhiana. Contact No. 9814712425, email: advocateajayjindal@gmail.com, Ch.No.425, 4th Floor, Advocates Complex, District Courts, Ludhiana, Punjab.

[2*] The co-author started visiting the courts since May, 2011 and completed his law graduation from Panjab University, Chandigarh and is regularly doing practice on Civil Side. Email:-Abhayjindal14@yahoo.co.in, M No. 9814912425

Introduction

The philosophy and principle underlying Order II is to discourage and minimize litigation. The law has always frowned upon multiplicity of litigation since less litigation is seen as a sign of a peaceful, progressive and developed society. Hence, Order II has rightly been incorporated in the Code of Civil Procedure in furtherance of the said philosophy of minimizing litigation.

Provisions of Order II

Rule 1 of Order II provides for the abovementioned basic principle, and states that every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 1, therefore, provides the foundational principle. This principle of minimizing litigation is seen in action in Rule 2 and, from a litigation point of view, is the most important provision of this Order.

Rule 2 provides for the following conditions to be complied with while filing a suit:

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action;

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

This provision consists of two parts, or two situation and these have been explained by the Hon’ble Supreme Court in a vast number of decisions. The most recent of such judgments is one delivered in the year 2020 in the case of Kalyanaswamy (D) v. L. Bakthavatsalam (D), 2020 (3) RCR (C) 404. In this case, the Court explained that Order II Rule 2 has 3 subrules. The first sub-rule is the general principle that a plaintiff should include the whole of his claim in the suit. Sub-rule 2 deals with the effect of omission or relinquishment of a claim and sub-rule 3 deals with the omission of a relief. There is a difference between omission of claim and omission of relief. As per the sub-rule, if a claim has been omitted, a person cannot later, in any condition or circumstance, sue for the same. There is an absolute bar to the second suit. On the other hand, in case of relief, if a person omits the same, he or she can sue for the same with the leave or permission of the Court.

The difference between claim and relief can be explained well with the help of an example. Suppose A lets a house to B at a yearly rent of Rs. 1 lakh in 2017. The rent for the whole of the years 2017, 2018 and 2019 is due and unpaid. In 2020, A sues B only for the rent due for 2018 and 2019. He omits for sue for rent for the year 2017. As per this provision, A cannot afterwards sue B for the rent due for 2017. This is a case where he has omitted one of his claims i.e., claim for rent for the year 2017 and he cannot later sue for the same. The Court cannot give permission to file suit for such a claim. On the other hand, a relief is the legal remedy for wrong. In the same example, if the rent is not paid on time, A can ask for interest from the date it fell due. This amounts to a relief. If he omits to ask for the same, but files an application or makes a prayer and takes permission of the Court to file for interest separately, he can file a separate suit. However, if he fails to take the permission of the Court, then the bar of Order II sub-rule 3 comes into operation and he cannot sue for the said relief.

Further, the leave of the Court need not be express and may be inferred from the circumstances of the case. It can also be obtained at any stage. In 1993, the Bombay High Court had held that the leave should be obtained at the time of filing the suit, but now it has been clarified in 2016 that the leave can be obtained at any stage in the suit^[1*]
. The power to grant permission is completely on the discretion of the Court. There exists no straight-jacket formula to grant leave, which implies that such a grant depends upon the facts and circumstances of the case.

[1* 2016(1) CCC 426 Bombay]

There are two more terms which warrant understanding at this juncture – omission and relinquishment. The consequences for omission are clear. While omission is usually unintentional, it is always open for the plaintiff to intentionally relinquish his claims, and the consequences for relinquishment are the same as omission i.e., a subsequent suit for the claims relinquished cannot be permitted to be filed. Further, the Rule also clarifies in sub-rule 1that a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. It is always his right to do that. However, in such a case, he cannot later sue for the said amount.

An illustration of the same is if A advances a loan of Rs. 2200 to B. The jurisdiction of a particular Court is up to Rs. 2000 only. In order to bring the suit within the jurisdiction of Court X, A sues B for Rs. 2000. A cannot afterwards sue for the remaining Rs. 200.

Object of this Rule

A Constitution Bench of Supreme Court in Gurubux Singh v. Bhooralal, AIR 1964 SC 1810 laid down in its words the object of the Rule. The Court stated that the object of Order II Rule 2 of the Code is two-fold. The first is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. The second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order II Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action from filing a second suit in regard to other reliefs based on the same cause of action. Therefore, it is a salutary provision to prevent multiplicity of litigation in current times when courts’ dockets are exploding with multifarious litigation.

What is important to understand here is that Order II Rule 2 does not bar a second suit based on a different and distinct cause of action. Hence, if the second suit is on a different cause of action, it will not be barred. This was explained well in the judgment of the Supreme Court in Sandeep Polymers (P) Limited v. Bajaj Auto Limited & Ors., (2007) 7 SCC 148, where the Court observed that this rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. Hence, it is not mandatory for the plaintiff to join more than one cause of action, but it is mandatory to join all claims and reliefs arising out of one cause of action.

Cause of action

Cause of action may be defined as `a bundle of essential facts or factual situation, which is necessary for the plaintiff to prove before he can succeed and obtain a remedy from the Court against another person.’ It includes every fact which is material for the plaintiff to prove to succeed and every fact which a defendant will have a right to traverse or contradict. A cause of action must include some act done by the defendant which gives the plaintiff his cause of complaint since in the absence of such an act no cause of action can possibly accrue.

How to determine whether cause of action is same or different

One primary criterion to determine whether the cause of action in the subsequent suit is identical to that in the first suit, is whether the same evidence will maintain both actions. The rough test to impose Rule 2 would be to see if the evidence provided in the first suit would sustain in the subsequent suit also, if the answer is in affirmative then the second suit is barred by Order II Rule 2. This was the holding in the case of Mohd. Khalil v. Mahbub Ali, AIR 1949 PC 78 and holds good to this day. Further, it was held by a Constitution Bench in the case of Gurubux Singh v. Bhoora Lal, AIR 1964 SC 1810 that “to establish that the cause of action in both the suits is the same, it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed.”

The Court stated that, like res judicata, a plea of bar of Order II Rule 2 will have to be established by the defendant by producing the previous plaint or evidence showing that it is arising out of the same cause of action. The Court cannot take cognizance of the previous suit suo motu, which means that the onus would be on the defendant to clearly establish that the cause of action was the same in the previous pleadings. Therefore, if the previous pleadings are not brought before the Court, the bar of Order II Rule 2 will not apply.

This principle was taken a step further by the Supreme Court in Alka Gupta v. Narender Kumar Gupta, AIR 2011 SC 9 wherein the Court held that unless the defendant pleads the bar under Order II Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. In this case, the respondent did not contend that the suit was barred by Order II Rule 2 of the Code and no issue was framed as to whether the suit was barred by Order II Rule 2 of the Code. However, the High Court (both the trial bench and appellate bench) erroneously assumed that a plea of res judicata would include a plea of bar under Order II Rule 2 of the Code. The Supreme Court explained that res judicata relates to the plaintiff’s duty to put forth all the grounds of attack in support of his claim, whereas Order II Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order II Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, was held to be unsustainable.

Thus, the provision under Order II Rule 2 is penal in nature as it bars the plaintiff to file for a claim that he ignored unintentionally or even intentionally. This provision should be construed strictly and has been done so by the Supreme Court in several situations.

Practical implications of Order II Rule 2

There are certain other legal propositions with respect to Order II Rule 2 which are often seen in a practical application of the provision. One is with respect to filing of suits relating to injunction and specific performance in cases of an agreement to sell. Many a times we find that when the seller is not honouring the agreement, people initially file a suit for injunction and later, when the stipulated target date passes, they file a suit for specific performance. Here, the question arises as to whether the second suit in this case will be barred by operation of Order II Rule 2. The law in this regard was unclear until a few years ago, but has been settled by recent decisions of the Supreme Court. The first case in this regard is M/s Virgo Industries v. M/s Venturetech Solutions Pvt. Ltd., 2012 (4) RCR (C) 372 in this case, the Court stated that if A enters into an agreement to sell with B and later A, by his overt acts, makes his intention clear not to honour the agreement to sell, then B cannot simply file a suit for injunction for restraining A from alienating the property. Rather, he has to claim the relief of specific performance as well, otherwise the second suit will be barred by the provisions of Order II Rule 2. The Court also made it clear in this case that the provisions of Order II Rule 2 will be applied to the second suit even if the first suit was pending. Earlier a number of High Courts had taken the view that Order II Rule 2 will not apply to bar the second suit if the first suit is pending. The Supreme Court, in essence, took a strong view in favour of imposition of the bar under Order II Rule 2 in order to curtail multiplicity of litigation in such cases.

This decision holds good even today and was followed recently in a judgment of the Punjab and Haryana High Court in the case of Harbhajan Singh v. Hazur Singh, 2019 (1) RCR (C) 945 by Hon’ble Mr. Justice Anil Kshetarpal. Here, however, one distinction needs to be clarified. In cases where the seller hands over possession to the buyer and thereafter tries to dispossess him and the buyer files a suit for injunction restraining the seller for dispossessing him, the buyer will not be barred from subsequently filing a suit for specific performance. This is because in such a case, the cause of action of the seller trying to dispossess the buyer and the seller not agreeing to perform his part of the agreement form distinct causes of action and, as already stated above, if the causes of action are different, the bar of Order II Rule 2 does not apply. The relevant judgments in this regard are Inbasagaran and another v. S. Natarajan (D) through L.R.s, 2015 (11) SCC 12, Rathnavathi and another v. Kavita Ganashamdas, 2015 (5) SCC 223 and Sucha Singh Sondhi (D) through L.R.s v. Baldev Raj Walia, 2018 (2) RCR (Civil) 782.

The second proposition from a practical point of view is with respect to the applicability of Order II Rule 2 to writ proceedings. Section 141 of the CPC provides that “the procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.” The Explanation to this Section states that, in this section, the expression “proceedings” does not include any proceeding under Article 226 of the Constitution. Thus, as per the CPC itself, the Code will not apply to writ proceedings.

However, there are certain principles of CPC which are based on reason and justice and Courts have consistently held that these will be applicable to writ proceedings also when the Court is exercising its discretionary jurisdiction. For instance, it has been held in Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153 that the principle of res judicata is applicable to writs. Further, it was held in Sarguja Transport Service v. STAT, AIR 1987 SC 88 that Order 23 Rule 1 is applicable to writs. Similarly,it was held in Avinash Nagra v. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534 that the principle of constructive res judicata would be applicable to writ petitions.

So far as the applicability of Order II Rule 2 to writ proceedings is concerned, the Supreme Court in the year 1962 in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and others, AIR 1962 SC 1334 made passing observations without going into the issue in depth. Here, the Court stated that “the bar of Order II Rule 2 of the Civil Procedure Code, on which the High Court apparently relied, may not apply to a petition for a high prerogative writ under Article 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court.”

In this case, mere passing observations were made against the application of Order II Rule 2 to writ proceedings and the judgment of the High Court in which it had applied Order II Rule 2 was upheld and hence, this judgment cannot be said to be a binding precedent.

Thereafter, in a number of cases with respect to matters arising from the Central Administrative Tribunal,Order II Rule 2 has been applied by the Supreme Court. Some of these judgments are M/s D. Cawasji & Co. v. State of Mysore, AIR 1975 SC 813 Commissioner of Income Tax v. T.P. Kumaran, (1996) 10 SCC 561 and Union of India & Ors. v. Punnilal & Ors., (1996) 11 SCC 112. The Central Administration Tribunals, like writ Courts, are not bound by the CPC. In spite of this, the Supreme Court has applied the principles of Order II Rule 2 to cases arising from Central Administrative Tribunals, and in a large number has consistently taken a view that the principles of Order II Rule 2 will apply to writ petitions. The Himachal Pradesh High Court has taken a clear and categorical view with respect to the applicability of Order II Rule 2 to writ petitions. A recent reported judgment is Ex Petty Officer Hari Pal Singh v. State of H.P., 2017 (3) Himachal Law Reporter 1696 which was delivered by a Division Bench. The Punjab and Haryana High Court has in a number of cases applied the principles of Order II Rule 2 to writ proceedings. One such judgment of the Division Bench is Ravi Dutt Sharma v. State of Haryana, 2003 (4) SCT 151.

Infact, a very elaborate judgment has been passed recently by Hon’ble Mr Justice Anil Kshetarpal in the High Court of Punjab and Haryana on 16 July 2020 in Freudenberg Nok Plant 1 & 2 Workers Union v. State of Punjab, 2003 (4) SCT 151 wherein the Court has referred to Rule 20 and Rule 32 of Writ Jurisdiction (Punjab and Haryana) Rules and held that Order II Rule 2 is applicable to writ proceedings. As per Rule 20, the petitioner has to make a statement in the petition as to whether a similar petition has been made to the Supreme Court or previously in this Court or in any other Court in respect of the same matter, and if made, with what result. Further, Rule 32 of the Rules provides that the provisions of the Code of Civil Procedure, unless inconsistent with these Rules, shall apply mutatis mutandis. The Court held that Order II Rule 2 of the CPC is applicable, particularly when in the 1976 Rules there is no provision inconsistent with the provisions of Order II Rule 2 of the CPC.

The Court here also referred to a judgment of the Supreme Court in State Bank of India v. K.C. Tharakan and others, (2005) 8 SCC 428 wherein it had deprecated the practice of filing multiple writ petitions on same or similar cause of action. The Court stated that filing of multiple writ petitions should be avoided since the dockets of the Courts are already over flowing and that the filing of multiple petitions is neither in the interest of justice nor in the interest of the judicial institution. Thus, for this reason, the provisions of Order II Rule 2 have to be applied by writ Courts.

Courts must use Order II Rule 2 as a tool to curtail the abuse of legal process and the multiplicity of litigation. It must be pointed out here, however, that in spite of the several decisions in favour of application of Order II Rule 2, there has been an aberration in a recent judgment delivered by the Supreme Court in February 2020 in the case of Brahma Singh v. Union of India, 2020 (3) SCALE 224. In this case, while deciding a matter regarding retiral benefits of employees of the Supreme Court Legal Services Committee, the Supreme Court refused to take a hyper-technical view and relied with approval on its judgment in Devendra Pratap Narain Sharma, AIR 1962 SC 1334 and granted the relief which the Court had gone into in a previous petition. This judgment, in the author’s opinion, is vague and will require clarification in times to come.

Remaining provisions of Order II

Order II Rule 3 provides for the joinder of cause of action. According to this Rule, save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant(s), may jointly unite such causes of action in the same suit. If there are two or more plaintiffs or defendants and several causes of actions are involved, they may unite such causes of action in one suit only if they all are interested. But this should be read with Order 1 Rules 1 and 3 which furnishes two conditions that has to be fulfilled before coming under this provision. The first condition is that the causes of actions must have arisen out of same act or transaction or series of acts or transactions, and the second condition is that common questions of law or fact must have been involved.

Rule 6 provides for the power of the Court, and states that where it appears to the Court that the joinder of causes of action in the suit may embarrass or delay the trial or is otherwise in convenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice. This provision was inserted by way of an amendment in the year 1976.

Rule 4 states that in a suit to recover the immovable property, a plaintiff is not entitled, without the leave of the court, to join any claim, except:

i. Claims for the mesne profits or arrears of rent in respect of the property claimed or any part thereof.

ii. Claims for damages for breach of the contract under which the property or any part thereof is held.

iii. Claims in which the relief sought is based on the same cause of action.

Rule 5 deals with the suits by or against three classes of person which are executors, administrators and heirs. It states that no claim could be merged together which was made in their representative capacity with the claims by or against them personally in the same suit, except:

i. Where the personal claims arise with the reference to the estate he represents,

ii. Where he was entitled to or liable for, those claims jointly with the deceased whom he represents.

The primary objective of these provisions is to prevent a representative from intermingling the assets of his testator with his own estates.

Rule 7 provides for objections as to misjoinder. It states that all objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

Rule 8 added by Punjab and Haryana High Court in the year 1909. It states that when an objection, duly taken, has been allowed by the Court, the plaintiff shall be permitted to select the cause of action with which he will proceed, and shall, within time to be fixed by the Court, amend the plaint by striking out the remaining causes of action. When the plaintiff has selected the cause of action with which he will proceed, the Court shall pass an order giving him time within which to submit amended plaint for the remaining causes of action and for making up the court fees that may be necessary. Should the plaintiff not comply with the Court’s order, the Court shall proceed as provided in Rule 18 of Order VI and as required by Court Fees Act.

These are the 8 Rules forming part of Order II. There initially were 6 Rules when the Code was enacted in 1908, one Rule was added by the Punjab and Haryana High Court in 1909 and one Rule was added by the Centre in 1976.

Conclusion

Order II is a salutary provision, not just for the general public and litigants in order to save them from unnecessary multiplicity of litigation, but it is also a salutary provision for lawyers in the sense that it is meant to keep us on our toes. It is a message to us to stay alert and vigilant while drafting and also keep ourselves up-to-date with respect to the latest law so we that we do not miss out on any claim or relief for our clients while drafting and do not cause any permanent loss to them by our omission. Hence, it is a provision which encourages us to become better lawyers.

“No one can make you feel inferior, without your consent”

A decision of a civil suit culminates into a decree and the party in whose favour suit is decided, becomes the decree holder and the opposite party, against whom the suit is decided becomes the Judgement Debtor. Every judgement is followed by a decree, crystallising the rights of the parties to the lis, based on the reasoning given in the judgement.

A decree, is a formal expression which determines the interest of both the parties in a conclusive manner, with regards to any disputed matter in a civil suit. Significantly, a decree is a formal expression of adjudication by which the court determines the rights of parties regarding the matter in a controversy or a dispute. A set-off or a counterclaim can be obtained on the decree. It shall be deemed to include a rejection of a plaint and determination of any question under Section 144 of the Act. However, a decree shall not include, any adjudication from which an appeal lies as an appeal from an order; and any order of dismissal for default.

Section 2(2) of the code of civil procedure defines Decree as: –

(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 with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

A civil suit can be decided on the basis of contest; can be compromised; and can also be decided based on admission. At times, a civil suit is decided on the basis of admission so made in the written statement itself, without any contest.

Order XII Rule 6 reads as under :-

Judgment on admissions– (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of an party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as It may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.

From the language of Order XII Rule 6, of the Code of Civil Procedure, it is clear that it is open to the Court to base a judgment on admission on the pleadings or otherwise. The phrase “otherwise”, in the said provision clearly indicates that it is open to the Court to base the judgment on statements made by a party not only in the pleadings, but also de hors the pleadings. Such admissions may be made either expressly or even constructively.

The provision under `Order XII Rule 6′ of the Code is enabling, discretionary and permissive, and is neither mandatory nor it is peremptory, since the word “may” has been used. It is thus not incumbent on the Courts to pass judgment on admissions, and in order to succeed under Order XII Rule 6 CPC; the admission of the other party has to be clear and unequivocal. When either party, based on pleadings or otherwise, can convince the court regarding admission of fact, the court may, after due consideration, pass a judgment. However, it is necessary to highlight the word `may‘ which suggest that the Code has conferred complete discretion on the Court, which was reiterated in S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287. Such discretion should always be based and guided by the principles of fairness and should not be arbitrary in nature.

A judgement based on admission can be passed by the court at any point of time, as there may be instances where a judgement is passed on the basis of admission given by the defendant in the written statement itself, or in a statement made in the court, at a later stage. The said admission by the defendant of the facts stated in the plaint, can relate to anything – from the most common recognition of family settlement; a Testament or a Will; or contract; or anything that is permissible under law. Such a judgement on admission is commonly called a Consent Decree because it is based on the consent/admission of the party to the lis. The said decree not only saves the time of the court from lengthy litigation, but also helps to maintain harmony and peace between the parties.

A consent decree, as stated above, can be based on anything, recognising any legal right between the parties, and the court on the basis of such an admission or understanding between the parties, may pass a decree. A consent decree though passed by a court of competent jurisdiction, determining the rights between the parties on the basis of admission or statements, may require registration in some cases.

Section 17 of The Registration Act,1908 lays down that any document that creates a right in a property which exceeds Rs100/- is required to be registered compulsorily, and in the absence of registration, the document shall have no effect, as per the provisions of section 49 of the said act.

Section 17 and Section 49 of the Registration Act 1908 reads as: –

17. Documents of which registration is compulsory-

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No, XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-

(a) Instruments of gift of immovable property;

(b) Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) Lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

(2) Nothing in clauses (b) and (c) of sub-section (1) applies to. –

(i) Any composition-deed; or

(ii) Any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property-, or

(iii) Any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or party of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) Any endorsement upon or transfer of any debenture issued by any such Company; or

(v) Any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) Any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding, or

(vii) Any grant of immovable property by Government or

(viii) Any instrument of partition made by a Revenue-officer; or

(ix) Any order granting a loan or instrument of collateral security granted under the land improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) Any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or

(xa) Any order made under the Charitable Endowments Act, 1890. (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or

(xi) Any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) Any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-officer.

Explanation. – A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.

(3) Authorities to adopt a son, executed after the Ist day of January, 1872, and not conferred by a will, shall also be registered.

Section 49. Effect of non-registration of documents required to be registered

No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-

(a) Affect any immovable property comprised therein, or

(b) Confer any power to adopt, or

(c) Be received as evidence of any transaction affecting such property or conferring such power; unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 11 of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1892, or as evidence of any collateral transaction not required to be effected by registered instrument.

A bare perusal of the above two provisions makes it abundantly clear that any document that passes of a right in an immovable property of value of more than Rupees one hundred is required to be compulsorily registered, and any failure to do so, shall negate the effect of the same and can be received only as evidence of a contract, in a suit for specific performance of a contract. The underlying principle behind this provision is that parties to the litigation may not get the documents and consent decrees passed, in order to bypass and circumvent the provision of Stamp Act, resulting in defrauding the State exchequer of its legitimate dues.

A consent decree is sometimes also termed as a compromise decree, though the line between the two is very thin, and both have the same force, and are as much valid as any other contested decree, yet the major difference between the two is that a consent decree or a judgement on admission is passed under the provisions of order 12 rule 6, and a compromise decree is passed under the provisions of order 23 rule 3, of the Code of Civil Procedure, 1908. The law does not recognise any distinction between a consent decree or a compromise decree, and one passed after contest, as regards its effectiveness or the force behind it. The only difference between a consent decree or a decree on a consent on the one hand, and a decree after contest on the other, is that in the former case the suit is decided and a decree passed on the basis of a compromise or consent, and in the latter case it is passed after the court has, on the basis of the evidence, recorded its findings. In both the cases there is a formal adjudication by the court, conclusively determining the rights of the parties, in respect of the subject matter in dispute. The decree in first situation is as effective as the decree in the second situation.

Most common form of consent decree is a amongst the family members, whereby one person of the family files a suit against the others, asserting his rights and the other family members, who are often arrayed as defendants in the said suit, admit the claim of the plaintiff, either in written statement itself, or give a statement to that effect at a later stage.

A question that arose before the courts in many cases, arising out of the consent decree, was that whether such a consent decree, which is based on the admission between the parties, shall have a binding force, or shall fail because of lack of registration, in the light of the provisions of section 17 and section 49 of the Registration Act, the key point for determination being the recognition of a newly given right in the property, by way of the decree/document so executed, or the recognition of a pre existing right between the family members.

The Supreme Court in Sahu Madho Das v. Mukand Ram, AIR 1955 Supreme Court 481 observed as follows:

“It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it to the portions allotted to them respectively.” 

In AIR 1966 SC 292 (Larger Bench) Tek Bahadur Bhujil v. Debi Singh Bhujil. Supreme Court examined the concept of family settlement and held that the word ‘Family’ cannot be interpreted in a narrow sense and it is not necessary that the person entering into a family arrangement must have some antecedent title. It is to be assumed that parties to the arrangement had an antecedent title of some sort and the agreement clinches and defines what that title is. It was further held that family arrangement can be arrived orally. Its terms may be recorded in writing in the form of a Memorandum as to what had been agreed upon by the parties. In such a situation, it is not required to be registered

In the case of Ram Charan Dass v. Giri Nandini Devi, AIR 1966 Supreme Court 323, the Supreme Court held as follows:

“Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. In this context the word ‘family’ is not to be understood in a narrow sense of being a group of persons whom the law recognizes as having right of succession or having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations. The consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be impeached thereafter……..”

“…….. The transaction of a family settlement entered into by the parties who are members of a family bona fide to put an end to the dispute among themselves, is not a transfer. It is not also the creation of an interest. For, in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. Every party who take benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection.”

Again, in the case of Kale v. Deputy Director of Consolidation, AIR 1976 Supreme Court 807, it was held by the Supreme Court that: –

“The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same…….”

“……… Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

Thus, the above said judgements laid down clearly that a consent decree can be passed on the basis of admission recognising a family arrangement or settlement between the parties, and the dispute in this case can be settled, even if it is relating to a future claim or even a possible claim. Any such settlement between the family members can be oral or in writing and had no requirement of any registration or other legalities.

In 1989 PLJ 182 Gurdev Kaur and others v. Mehar Singh and others it was held that the compromise or consent decree, even if it creates title, does not require registration. It was further held that grounds on which the compromise decree can be set aside are the same on which a contract can be set aside, namely fraud, misrepresentation, coercion or unsound mind,

The said position of law was again reiterated In Bhoop Singh v. Ram Singh Major and others, 1995(3) RRR 541 (SC), whereby the Supreme Court while relying upon its earlier decision in Tek Bahadur v. Debi Singh, AIR 1966 Supreme Court 292 held that: –

“16. We have to view the reach of Clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.

17. It would, therefore, be the duty of Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registerable.

18. The legal position qua Clause (vi) of Section 17(2) can, on the basis of the aforesaid discussion, be summarised as below:

(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.

(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100/- upwards in favour of any party to the suit, the decree or order would require registration.

(3) If the decree were not to attract any of the Clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court’s cases, it is apparent that the decree would not require registration.

(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of compromise in question.

(5) If the property dealt with by the decree be not the “subject matter of the suit or proceeding”, Clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.”

Though the said judgement of the Supreme Court only laid down the concept of mandatory registration of a decree, in case the value of the property is more than Rupees one hundred, and is creating the right in the property for the first time, yet many civil suits were filed on the basis of aforesaid plea of non registration of earlier passed consent decrees. It may be noted that in Bhoop Singh’s case (supra), the Supreme Court had just laid down the law, on the basis of earlier law, but had no where explained the concept of pre existing right, yet many already settled consent decrees became the subject matter of challenge on account of non registration of the same. It was also held in Bhoop Singh’s case that a memorandum of family arrangement does not require registration, as it simply recognises the rights of the family members as created earlier. The relevant paragraph holding so laid down that: –

“14. In Tek Bahadur v. Debi Singh, AIR 1966 Supreme Court 292, the Constitution Bench of this Court considered the validity of the family arrangement and the question was whether it requires to be compulsorily registered under Section 17. This Court, while up-holding oral family arrangement, held that registration would be necessary only if the terms of the family arrangements are reduced into writing. A distinction should be made between the document containing the terms and recital of family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act. It was held that a memorandum of family arrangement made earlier which was filed in the Court for its information was held not compulsorily registrable and therefore it can be used in evidence for collateral purpose, namely, for the proof of family arrangement which was final and binds the parties. The same view was reiterated in Maturi Pullaiah v. Maturi Narshimham, AIR 1966 Supreme Court 1836, wherein it was held that the family arrangement will need registration only if it creates any interest in immovable property in present time in favour of the parties mentioned therein. In case where no such interest is created the document will be valid, despite it being non-registered and will not be hit by Section 17 of the Act.”

The aforesaid judgment though said nothing about a pre existing right but it led to a series of litigation, which unsettled the many settlements between the family members on the basis of earlier passed consent decrees. It was in Bachan Singh v. Kartar Singh and others, 2002(3) RCR(Civil) 495 (SC), that the Supreme Court held that

“……… A consent decree passed by the Court is not required to be registered under the provisions of the Indian Registration Act and therefore, the view taken by the first Appellate Court was not legally correct and has been rightly set aside by the High Court. We are, therefore, in agreement with the view taken by the High Court.”

The said view was followed by the Punjab and Haryana High Court in Jagdish v. Ram Karan, 2003(1) RCR(Civil) 657 (P&H) and further in Hari Singh v. Gurcharan Singh, 2003(3) RCR (Civil) 632(P&H) whereby after relying upon the entire law on the issue it was held that: –

“…… that if the claim of the defendant was admitted by the plaintiff and on the basis of the said admission, a decree was passed and if there was no fraud in passing the decree, then the said decree was good and valid and could not be ignored on the ground that the same was not registered.”

The said judgements were subsequently followed in a number of other judgements to hold that a consent decree, which is based upon an admission of pre existing rights, does not require registration, and cannot be challenged on that ground. The same view was reiterated by the Punjab and Haryana High Court in Tejpal Singh v. Kushal Pal Singh RSA Number 5023 of 2009 decided on 08/05/2017.

The Supreme Court in Phoolpati v. Ram Singh, (2015) 3 SCC 164 drew a distinction between self acquired property and joint Hindu Family property, and held that qua self acquired property, the civil Court decree was required to be registered. However, the said judgment passed by the Supreme Court of India was in the peculiar facts of that case, as there was a dispute relating to some gift, as well as a decree, and cannot be taken to be as a general exception to various other judgements. The same view was taken by the Punjab and Haryana High Court in Dhian Singh v. Mohinder Singh 2017 (4) PLR 729.

In a very recent judgement of the Supreme Court in Mohammade Yusuf v. Rajkumar, 2020(2) RCR (CIVIL) 23 observed that a compromise decree does not require registration if it does not mention the property that is not the subject-matter of the suit. It was held that: –

“The only question to be considered in this appeal is as to whether the above noted compromise decree dated 04.10.1985 was required to be registered under section 17 of the Registration Act, 1908 or not?”

“……… Under Section 17(1)(b), non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property requires registration. The word “instrument” is not defined in Registration Act, but is defined in the Indian Stamp Act, 1899 by Section 2(14).

6. A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but sub-section (2) of Section 17 provides for an exception for any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by virtue of sub-section(2)(vi) of Section 17 any decree or order of a Court does not require registration. In sub-clause(vi) of sub-section (2), one category is excepted from sub-clause(vi), i.e., a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17(2)(vi). A copy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 04.10.1985 was not required to be registered on plain reading of Section 17(2)(vi). The High Court referred to judgment of this Court in Bhoop Singh v. Ram Singh Major and Others, (1995) 5 SCC 709: 1995(3) R.R.R. 541, in which case, the provision of Section 17(2)(vi) of Registration Act came for consideration. This Court …….

11……….. In view of the pronouncement of this Court by Three Judge Bench judgment in Ravinder Kaur Grewal and Others v. Manjit Kaur and Others (supra), the very basis of the High Court for holding that compromise deed dated 04.10.1985 requires registration is knocked out. The present is not a case where there is any allegation that the decree dated 04.10.1985 is a collusive decree. The decree dated 04.10.1985 was in favour of the plaintiff of 7 biswa land, survey No.203 and for remaining land of survey No.203, it was held that it belonged to defendants.

12. In Bhoop Singh (supra), this Court held that the earlier decree required registration for the reasons as mentioned in paragraph 19. The reasons given in paragraph 19 of the above case has no application in the facts of the present case.

13. This Court in Som Dev and Others v. Rati Ram and Another, (2006) 10 SCC 788 : 2006(4) R.C.R.(Civil) 303 while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following: –

“18. ……. But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit………”

…………… In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., “any decree or order of a Court”. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The compromise decree dated 04.10.1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly.”

The said judgement of the supreme court was again followed in Gurcharan Singh v. Angrez Kaur 2020(2) RCR (Civil) 696, Wherein it was held that :-

“Defendants obtained right, title and interest in suit property by virtue of decree passed in earlier suit between owner and defendants – In said suit original owner admitted claim of defendants and consent decree was passed – Owner in said suit prayed that suit of plaintiffs be decreed as prayed – Pre-existing right of plaintiffs was admitted by defendant and decree was passed therein – No registration of decree required – High Court erred in holding decree as void for want of registration.”

The aforesaid law as laid down by various courts makes it clear that a consent decree is as good as any other contested decree i.e. a decree obtained after contest, and shall have the same binding force as any other validly passed decree.

A consent decree also creates an estoppel against the parties to the litigation and it cannot be challenged subsequently on merits, except on the grounds of fraud, misrepresentation, undue influence etc. As discussed above the registration of the decree also has been made a ground to challenge the same, but time and again the same has been negated, and discouraged by the courts, if the person in whose favour the decree was passed, had a pre existing right in the property that is subject matter of the decree.

Though there is no limitation to challenge a decree on the basis of fraud etc., however, the same needs to be challenged within a period of 3 years from the date of knowledge of the same (fraud), in light of the provisions of Articles 58 and 59 of the Limitation Act.

It may also be mentioned that a compromise decree passed under the provisions of Order 23 Rule 3 can only be challenged before the same court i.e. the court which passed the decree, or in appeal under the provisions of Order 23 Rule 3A, but a judgement on admission, as under Order 12 Rule 6, popularly called a consent decree, can be challenged by the person so affected, even in a separate civil suit on the basis of fraud etc., but not on the ground that facts pleaded in the previous suit culminating in the impugned consent decree were erroneous and incorrect. The said questions stand determined and concluded by the consent decree, and cannot be re adjudicated, and would be barred by principle of res judicata in the subsequent suit.

Thus from the entire case law on the point, it can well be said that though both the words `compromise’ and `consent decree’ are often interchangeably used and there is a thin line of distinction between a `consent decree or a judgement based on admission’ and a `compromise decree’, as passed under order 23 rule 3, and one holds as good as the other, yet when it comes to challenging the same on any of the permissible grounds, both hold different parameters and checks.

Further more, a `Judgment on Admissions’ under Order XII Rule 6, can not be claimed as matter of right as the language used in that provision of the Code is enabling, discretionary and permissive, and is neither mandatory nor it is peremptory, since the word “may” has been used. No matter how much clear the admission may be, the said power with the court is absolutely discretionary and should be exercised judicially, on the facts and circumstances of each case. The underlying object of the abovementioned rule is to enable a party to obtain speedy judgment on admission, in respect of admitted claims, although disposal of disputed claims in a suit are pending. A decree can be passed only to the extent of admitted claims, for which admissions are clear, unequivocal and unambiguous. There is no specific form of admission required for a Court to pass a decree. It may be contained in pleadings or otherwise. It may be in writing or may even be oral, but once recognised and affirmed by the court in the shape of a decree, the same is as effective and has the same force as any other decree obtained after a contest.

Despite having a binding effect and application of principle of estoppel as against the parties to the litigation in consent decrees, they are challenged as easy as they are consented too.

Thus, it would not be wrong to conclude by saying that “one can never consent to creep when one feels an impulse to soar”.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

A clear Rejection is always better than a fake promise.

A “Suit“, is a proceeding by a party or parties against other/s in the civil court of law. The archaic term “suit in law” is found in only a small number of laws still in effect today. The term “suit” is used in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss or wronged, as a result of a defendant’s actions, demands a legal or equitable remedy, through his plaint. The defendant is required to respond to the plaintiff’s complaint by filing a written statement to all the averments contained in the plaint.

If the plaintiff is successful, judgment is in the plaintiff’s favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

A Law Suit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also, in certain cases, enable the State to be treated as if it were a private party in a civil case, as plaintiff, or defendant, regarding an injury, or may provide the State with a civil cause of action to enforce certain laws.

The conduct of a lawsuit is called litigation. The plaintiffs and defendants are called litigants and the procedure adopted for the same is governed by the principles of law, as contained in the Code of Civil procedure, 1908.

A suit begins when a document, known as a plaint, is filed with the court. A plaint should explicitly state the exact cause of action and, even when one or more plaintiffs seek/s damages or equitable relief from one or more stated defendants, should state the relevant factual allegations supporting the legal claims brought by the plaintiffs, pertaining to each of the plaintiffs. As the introductory pleading, a plaint is the most important step in a civil case, because it sets the factual and legal foundation for the entirety of the case. Thus, the same needs to have the exact details of relief, and grief for which the plaintiff is suing the defendant. The filing of a Plaint is considered a sine qua non for institution of a Suit. It is basically a statement of claims, treated as a repository of facts by the Court. Thus, every Court is obligated to analyze the Plaint, and decide whether it is fit to be proceeded further or not.

Order II of the Code of Civil Procedure, 1908, lays down the various principles governing the Frame of the Suit, and the procedure to be followed therein. Thus, once a suit is filed then the contents of the plaint must contain the whole of the claim as envisaged under order 2 rule 2, and must also be in complete compliance with the provisions of order 2.

Checking of Plaint by the Court is essentially a formal pre-admission scrutiny of the pleadings filed in the Indian law courts. The process is aimed at filtering out non-jurisdictional cases, and getting other formal defects, such as computation of Court fees and stamping of instruments, annexing spot map to the Plaint etc., rectified before the case is taken up for further hearing. Many of such formal defects and objections are taken care by the court registry where the case is filed, and would keep the same `in defect’ and not place the same for hearing before the court till the same is removed.

The process of Civil litigation, in Indian context, is regularized by the provisions of Code of Civil Procedure (India). The code is silent about any comprehensive procedure to be adopted for Plaint checking. However, there are various circulars issued by the different High Courts to regulate the intervention of office, in fault-finding process, at different stages of the suits, in compliance with the provisions of Order VII of the Code of Civil Procedure.

Once the suit is allowed to proceed, then the court is obliged with the duty that, before it proceeds further, to appropriately inspect the plaint, to decide, on the question as to whether it ought to be returned, or rejected, and examine as to the plaint is maintainable or barred by any law, so it cannot proceed further. It is the court’s obligation to take into consideration, different materials placed before it at that juncture. Order VII Rule 11 of CPC deals with all such situations, where plaint ought to be rejected, at that stage only, on the basis of such material placed before the court.

Order VII Rule 11 of the Code of Civil Procedure, lays down the concept of rejection of plaint, by the court, in specific circumstances and various conditions. Such a decision may be taken either Suo moto or upon a formal application made by the defendant for rejecting the plaint. It is mandatory for the court, before it proceeds further on the lis to give a decision upon the application for dismissal of the plaint, under Order VII rule 11. The object is based upon the principle that a litigant cannot be forced to file a written statement, on a frivolous litigation, where the court has no jurisdiction or plaint does not disclose any cause of action or is otherwise defective or barred by any law.

It has been held by the court time and again that the remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, only on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

Order VII Rule 11 Code of Civil Procedure 1908 lays down as under:

11. Rejection of plaint: – The plaint shall be rejected in the following cases: –

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provision of Rule 9;

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.

A bare reading of the above provision of Order 7 rule 11 shows that the plaint can be rejected by the court if it appears from the contents of the plaint that the same is barred by any law, undervalued, insufficiently stamped, not filed in duplicate or does not specify any cause of action. The court must give a meaningful reading to the plaint and if it finds that it is manifestly vexatious or meritless in the sense of not disclosing the clear right to suit, the court may exercise its power under Order 7 rule 11 of the code of civil procedure 1908, to reject the plaint. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or even after issuing summons to the defendant, or before conclusion of the trial, as held by the Supreme Court in the judgment of Saleem Bhai v. State of Maharashtra. 2003(1) SCC 557.

If found to be deficient of any of the above-mentioned factors, a Plaint may be rejected by the Court of its own motion or upon filing of an application in that behalf by the opposite party, at any stage of the proceedings, before conclusion of the trial. It would not matter, even if the issues are already framed in the suit, and the case is at an advanced stage. In Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., (2004) 3 SCC 137, it was held by the Supreme Court that:

“The Trial Court can exercise the power at any stage of the suit – before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.”

Thus, a plaint can be rejected if: –

• It does not disclose a Cause of Action: – A cause of action, in law, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, declaration of title, or recovery). The legal document which carries a claim is often called a ‘statement of claim’ in English law, or a ‘plaint’ in Indian law. The word cause of action has not been explicitly defined in the code of civil procedure 1908. However, there are various rules and orders wherefrom the meaning of the same can be gathered. As per Section 20 of the Civil Procedure Code, 1908, “cause of action” suggests any violation of a legal right that must be produced in favor of the plaintiff to substantiate his claim. “Cause of action” also means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

In T. Arivandandam v. T.V. Satyapal & Anr. (1977) 4 SCC 467 the Supreme Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: –

“5. …The learned Munsiff must remember that if on a meaningful -not formal -reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing …”

In Azhar Hussain v. Rajiv Gandhi 1986 SCC Supp. 315, the Supreme Court held that:

“12. …The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.“

In Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I& Anr. (2004) 9 SCC 512, the Supreme Court held that: –

“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”

In Om Prakash Srivastava v. Union of India and Anr., 2006 6 SCC 207, it was further held by the Supreme Court that:

“Cause of action” means, in the restricted sense, the circumstances which constitute an infringement of the right or the immediate cause for the reaction. In the wider sense it implies the conditions required for the enforcement of the action, including the violation of the right and the violation combined with the power itself. Compendiously, as noted above, the expression means any fact that the plaintiff would need to assert, if violated, to maintain his right to the Court’s judgment. Every circumstance that is required to be established, as distinguished from every piece of evidence that is necessary, to prove that every fact is part of “cause of action.”

In Swamy Atmanand v. Sri Ramakrishna Tapovanam 2005 (10) SCC 51, the Supreme Court held:

“24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded”.

However, if, by clever drafting of the plaint, the document created the illusion of a cause of action, the Supreme Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal (2017) 13 SCC 174 has observed that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The basis of the same being that the Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.

Thus, the plaintiff in order to be successful has to demonstrate his cause of action for the breach of which he has initiated the civil suit. He must demonstrate from the plaint that:

• That there existed a legal obligation or a right;

• The act of the defendant resulted in breach of such right or obligation;

• The reason for such a breach; and

• The plaintiff has suffered a legal loss because of this breach.

Once no such cause of action is apparent from the plaint, then under the provisions of order 7 rule 11 the plaint shall be rejected by the court.

• Where the Relief claimed is Undervalued: -If it is brought to the knowledge of the court, that the valuation of the suit is less or is fabricated or baseless, the court may order the plaintiff to re-evaluate the amount and may allow sufficient time for the correction. However, if despite such time given to do the needful, the plaintiff fails to comply with such directions then the court invoking the provisions of order 7 rule 11, shall reject the plaint.

However, it was held by the Supreme Court in Meenakshi Sundaram Chettiar v. Venkatachalam Chettiar, 1979 AIR SC 989, that: –

“This section casts a duty on the Court to reject the Plaint when the relief claimed is undervalued. If on the materials available before it the Court is satisfied that the value of relief as estimated by the Plaintiff in a Suit for accounts is undervalued the Plaint is liable to be rejected. It is therefore necessary that the Plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. The Supreme Court further noted that in Suit for accounts, a Plaintiff may not able to ascertain the exact amount for the purpose of valuation of the Suit. In this regard it clarified that;

In coming to the conclusion that the Suit is undervalued the Court will have to take into account that in a Suit for accounts the Plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount, he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. The Plaintiff cannot arbitrarily and deliberately undervalue the relief. A Full Bench of the Andhra Pradesh High Court in a decision in Chillakuru Chenchuram Reddy v. Kanupuru Chenchurami Reddy (ILR (1969) Andh Pra 1042), after elaborate consideration of the case law on the subject has rightly observed that there must be a genuine effort on the part of the plaintiff to estimate his relief and that the estimate should not be a deliberate under-estimation.”

• Where the relief is properly valued but the plaint if written on an insufficiently stamped paper: –

Every plaint must be appropriately stamped for the reasons for the court fees under the Court Fee Act, 1870. If the plaint is not sufficiently stamped, the court either on its own or on an application so made by the defendant, may grant an opportunity to the plaintiff to fill in the deficiency of the stamp so fixed, but if despite such an opportunity the plaintiff chooses not to make up the same then again the court shall reject the plaint under the provisions of order 7 rule 11.

Though both the above said conditions are contained clearly in order 7 rule 11 for the purpose of rejection of plaint but in order to save the plaintiff of any bona-fide mistake that he might have committed while filing the plaint, the court may grant an opportunity to the plaintiff to make up for such deficiency before it chooses to reject the plaint.

• Where the Suit appears from the statement to be barred by any law: Where from the pleadings of the plaintiff and the contents so contained there-in it is apparent that the suit so filed by him is not legally maintainable, the same being barred by any law then in such circumstances the court shall reject the plaint without proceeding further with the case. The bar so created shall also involve the suits which are apparently filed beyond limitation. However, if the question of limitation relates to the merits of the case, the same will be decided with other issues, and not at the outset and shall not be a ground for rejection of plaint.

A three-Judge Bench of the Supreme Court in State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 has observed that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted.

In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr (2011) 9 SCC 126.,the Supreme Court has held that the use of the word `first’ between the words `sue’ and `accrued’, would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.

In Raghwendra Sharan Singh v. Ram Prasanna Singh, AIR 2019 SC 1430, the Supreme Court held that: –

“Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7, Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7, Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift……… Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein-original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7, Rule 11 of the CPC.“

It may also be noted that like limitation, there may be many other legal bars for a civil suit to proceed. Many of the special statutes like the Sarfaesi Act, 2002, Village Common Lands Act etc. confer a exclusive jurisdiction on special courts and tribunals and expressly bar the jurisdiction of civil courts with regard to the disputes/subject matters mentioned therein, in all these circumstances the court while invoking the provisions of order 7 rule 11 can reject the plaint. The same shall also apply to a set of cases where a notice under section 80 CPC is mandatory and the same is not given. However, where an exemption is pleaded in the plaint and the circumstances are mentioned explaining why the same is not required then in such circumstances the court may take all these factors while deciding an application under order 7 rule 11.

Another set of circumstances maybe where the plaintiff has pleaded fraud, misrepresentation, breach of contract but the entirety of the plaint may not prima facie establish the same, in such a situation the court shall not reject the plaint under order 7 rule 11 as the same requires evidence of factual as well as legal aspect to be led by the plaintiff in support of his assertions. Thus, the court shall proceed with the suit in such situation without rejecting the plaint on these factual aspects.

• Where the plaint is not filed in duplicate: – where the plaintiff who has instituted a suit does not file the plaint in duplicate then the court shall reject the plaint under order 7 rule 11. Thus, in any suit to be filed before the civil court it is obligatory for the plaintiff to file the plaint in duplicate. The said requirement was invoked in order 7 rule 11 (e) by an amendment of 1999 in the code of civil procedure.

• Where the plaintiff fails to comply with the provisions of rule 9 : – Clause (f) of Rule 11 states that where the Plaintiff fails to comply with the provisions of Rule 9 wherein it is stated that the process fee and the copies of the Plaint are to be filed within seven days from the date of order of summons on the Defendant, the Plaint shall be rejected. This provision was again invoked by 1999 amendment in CPC with a purpose that the plaintiff shall be more vigilant in pursuing his litigation without resulting in wasting of the time of the court.

• In a recent judgement of the Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)(D) through Lrs, Civil Appeal No. 9519 of 2019 decided on 9th July 2020, the court while explaining the principles of Order VII Rule 11 in detail held that:

• Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

• The documents filed along with the plaint in consonance with the provisions of order VII rule 14, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

• At the stage of deciding an application under order 7 rule 11, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.

• The test for rejecting a plaint under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed.

• The plaint has to be construed as it stands without any addition or subtraction of any words. If the allegation in the plaint show a cause of action the court cannot embark upon an enquiry to test the correctness of those averments.

• The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial.

• Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.

• The provisions of Order VII Rule 11 are mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out.

Thus, from the above it is clear that the provisions of Order VII Rule 11 are mandatory in nature, and are implemented with a purpose so as to save vexatious litigation and save the time of the court, and also to prevent the defendant from unnecessarily defend a claim that has no legal basis to stand. The court may after analysing its contents and the documents placed along with it has to be either accept or reject the plaint as a whole and not in part. The underlying principle of law for invoking these provisions is that that bogus litigation should end at the earliest. The provisions, as under order VII Rule 11, or its interpretation may not be exhaustive and may depend on the facts and circumstances of each case, as compared with the others.

However, one of the basic requirements to keep in mind, while adjudicating the plaint in terms of order 7 rule 11 is that the court shall only consider the allegations in the plaint and shall not advert to the defence raised by the defendant.

If, the plaint is rejected under the provisions of order VII Rule 11, then the same shall be treated as a decree, under the definition clause given under section 2(2) of the Code of Civil Procedure, and the remedy before the plaintiff, whose plaint has been rejected is to file an appeal against the same, and no further claim with regard to the same cause of action shall be entertained by the court. However, if an application under Order VII Rule 11 is dismissed and the suit is allowed to proceed then the remedy available with the defendant, who has filed that application for rejection of plaint is to challenge that order of dismissal by way of revision petition, as the same is in the form of an interlocutory order.

The underlying principle of law is that Courts must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court and in case the court finds any claim to be so, than without prolonging the litigation further it shall “Nip the Evil in the Bud” by rejecting the plaint.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

Introduction

The principle of binding nature of precedents is known as Stare decisis et non quieta movere. Courts have developed this principle to ensure consistency and predictability in judicial matters. In the event of an ambiguity in interpretation of a provision of law or a legal principle, one arranges their affairs in accordance with the judgments dealing with the same, or similar, issues. If a dispute arises subsequently, the expectation is that the courts would follow their previous judgments, and such a discipline brings in consistency and confidence in the administration of justice. This article examines some of the aspects of this principle and its practice in India.

Systematic Development of the Principle

The principle of stare decisis or the binding nature of the precedents is one of the attributes of Common law. According to the Blackstonian theory^[1*], judges do not make law, but only find them or propound them. It follows that once the courts `find’ the law or declare them, people are entitled to rely on such law and arrange their affairs. In the event of a subsequent dispute, courts are expected to apply the law found by it earlier, and apply the same to resolve later disputes. In this way, courts depart from their traditional function of resolving the disputes between the parties before them, and make law that would be applicable to future transactions. Thus, the courts declare what the law on a particular subject is. This theory is called the declaratory theory. However, the declaratory theory of law was not applicable to the Chancery Courts, which administered equity. The rules of the courts of equity are “established from time to time – altered, improved, and refined from time to time.^[2*]” Fitzgerald divides the judgments into two categories, authoritative and persuasive^[3*]. An authoritative judgment binds the court in a subsequent case, whereas a persuasive judgment is not binding, but the court may consider it. Foreign judgments and obiter dicta are examples of judgments having persuasive value. The judgements of superior courts are binding on the lower courts and thus they are authoritative judgments. One difficult question that arises in case of authoritative judgments is what happens if the court makes an error and the subsequent court finds that it would be unwise and unjust to follow it. The subsequent court will have to either follow the earlier judgments and maintain predictability, or refuse to follow it and decide the case as it deems fit. The Common law courts followed the stare decisis principle and respected the binding nature of precedents. The courts looked at the legislature to make law to remove the basis of the earlier judgments, so that such judgments lose their relevance. Originally, the House of Lords was also bound by its earlier decisions^[4*]. However, the Privy Council maintained that it was not bound by its earlier decisions^[5*]. In 1966, the House of Lords made an announcement that it would not be strictly bound by its earlier decisions.

[1* William Blackstone, “Commentaries on The Laws of England” at p.69.]

[2* Re Hallet (1879) 13 Ch.D. at p.710, as cited in P.J.Fitzgerald, Salmond on Jurisprudence, 12th Ed. p.145 ]

[3* Fitzgerald, supra, id.]

[4* London Tramways v. London County Council (1898) AC 375 as cited in David Wong, infra.]

[5* Fitzgerald, supra, p.146.]

“Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.”^[6*] A decision in the judgment operates as res judicata to the parties to the dispute. The reasons for the decisions in the judgment, i.e., ratio decidendi becomes law for all parties who are not parties to the dispute also^[7*]. There are certain circumstances which will weaken or destroy the binding nature of the precedents^[8*]. A subsequent law will abrogate stare decisis and remove the basis for its binding nature. If a judgment is affirmed or overruled on some other ground, it will lose its significance as a binding precedent. If a judgment is given in ignorance of a statutory provision or a binding precedent, it is per incuriam and will not have any binding effect. Decisions of equally divided courts will not have any binding effect. In Bengal Immunity Company Limited v. State of Bihar^[9*], Das, C.J. made an attempt to justify overruling the previous decisions on this ground. Another circumstance is sub silentio, that is to say, if a case is decided on a particular point, but if it is later demonstrated that it could not have decided that point, without first deciding another point, the rule of sub silentio applies^[10*].

[6* David Vong, “Binding Precedent and English Judicial law-making” available at https://www.law.kuleuven.be/apps/jura/public/art/21n3/vong.pdf accessed on 16.11.2019]

[7* A.K.Awasthi, “Stare Decicis and Supreme Court” available at intro.nic.in/web journal/8.htm. last accessed on 16.12.2019.]

[8* Generally, Fitzgerald, supra, p.148]

[9* AIR 1955 SC 661]

[10* Gerard v. Worth of Paris Ltd, [1936] 2 ALL.E.R. 905 (C.A.) as cited in Fitzgerald, supra, p.154]

Application of stare decisis in India

In India, courts have held that the lower court is bound by the decision of a higher court. A lower court in a State is bound by the judgments of the High Court of that State and the Supreme Court. A single judge of the High Court of bound by the judgment of a Division Bench, Full Bench or Supreme Court. The Division Bench of a High Court is bound by the judgment of the Full Bench of the same High Court and the Supreme Court. A judgment of a High Court will only have a persuasive value over the other High Courts. The judgments of the Supreme Court is binding on all the other courts in India by reason of Article 141 of the Constitution of India^[11*]. Like the House of Lords, the Supreme Court also stated that it is bound by its own decisions and it reserved the right to review its own decisions in appropriate cases^[12*]. A two member Bench or three member Bench of the Supreme Court is bound by the judgment a coordinate Bench^[13*] and also by the judgment of the Constitution Bench. A Constitution Bench is bound by the judgment of a seven member or a higher Bench. However, there are many instances where a two ember Bench or a three member Bench doubted the correctness of a Constitution Bench judgment and referred it to a larger Bench for reconsideration. The binding nature of the judgment of the Supreme Court on itself is the subject matter of many judgments.

[11* Article 141 provides: “The law declared by the Supreme Court shall be binding on all courts within the territory of India.”]

[12* Bengal Immunity, supra]

[13* Union of India v. Raghubir Singh, 1989 SCC (2) 754]

In Bengal Immunity, the issue of stare decisis was raised before a Constitution Bench of seven judges. The appellant challenged the notice issued by the Commissioner of Sales Tax, Bihar asking it to take registration in the State of Bihar and pay tax as its goods were sold in the State of Bihar. The appellant contended that it had no place of business in Bihar and its sales were inter-state sales, which are outside the taxing powers of the States in terms of Article 286 of the Constitution. In State of Bombay v. United Motors (India) Ltd.^[14*], a Constitution Bench of five judges considered the scope of Article 286 and held, by majority, that a State in which the goods are actually delivered for the purpose of consumption therein has power to levy tax on the transaction and Article 286(2) did not affect such power. It was argued that the court in Bengal Immunity was bound by the majority decision in United Motors and thus, the issue was no longer res integra.

[14* (1953) SCR 1069]

The judgment in Bengal Immunity was decided by a majority of 4:3, with N.H. Bhagwati, J., who was part of the majority in United Motors, which was decided by a majority, changed his view and overruled United Motors. Bhagwati J’s opinion tilted the scales in both United Motors and Bengal Immunity. Das, CJ, explained the reason for overruling United Motors. He held that the majority decision in United Motors authorises imposition of a tax which was outside the domain of the State legislature and allowing it to remain would perpetuating an unauthorised tax burden imposed on the people. Das, CJ, also went on to analyse the number of judges who formed the majority in United Motors and State of Travancore-Cochin v. Shanmugha Vilas Cashewnut factory^[15*]. After considering the common judges in both these cases and Bhagwati, J, who has changed his view from that in United Motors, Das, CJ, considered that these two cases were decided by the judges in the ratio of 3:3. The number of judges who form part of the Bench would determine the binding nature of its judgment. However, the analysis undertaken by Das, CJ has no precedents either before or after Bengal Immunity^[16*]. Bhagwati, J, wrote a separate concurring judgment explaining why he was taking a view different from the one he took in United Motors. This case is an example of the difficulties faced by judges when constrained to overrule their earlier judgments. In Sambhu Nath Sarkar v. The State of West Bengal^[17*], a Constitution Bench of seven judges rejected the contention that they were bound to follow the court’s earlier decision in A.K. Gopalan^[18*] which stood for a long time, holding that they would review their earlier decisions if they are “inconsistent with the legal philosophy of our Constitution” and that “perpetuation of an error would be harmful to public interests”. In Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay^[19*], P.N.Bhagwati, J, faced the argument that the court’s earlier decision in Northern India Caterers v. State of Punjab^[20*], would be binding on it. Bhagwati, J. was part of the court that decided Northern Caterer. The majority overruled Northern Caterer. Bhagwati, J, wrote a concurring judgment stating that the court’s earlier binding judgments in Kedar Nath Bajoria v. State of West Bengal^[21*] and A. Thangal Kunju Musaliar v M. Venkitachalam Potti^[22*] were not brought to the knowledge of court that decided Northern Caterer. This case is an example of how a judgment loses its precedent value if it is per incuriam, rendered in ignorance of an earlier binding judgment or law. If there are two interpretations possible, the courts have held that they would not depart from the earlier interpretation even if they disagree with the earlier interpretation^[23*]. However, the yardstick would be different, if they reach a conclusion that the earlier decision was erroneous. After referring to Jackson J^[24*], that “I see no reason why I should be considered consciously wrong today because I was unconsciously wrong yesterday” and Lord Denning^[25*] that “The doctrine of precedent does not compel Your Lordships to follow the wrong path until you fall over the edge of the cliff”, the court held in Distributors (Baroda) Pvt Ltd v. Union of India^[26*], that if there are overriding considerations, they would reconsider and review their earlier decisions. One of the difficulties in following the principle of stare decisis is that it is the ratio of the decision or ratio decidendi and not the decision itself that will have the binding effect^[27*]. In many judgments the ratio decidendi is not spelt out clearly. One of the tests recommended in this regard is Professor Wambaugh’s “Inversion Test” to discern the ratio in a judgment^[28*]. In some cases, the judges agree on the decision but for different reasons. Cases like these will not have any precedent value as the judges did not agree on the reasons for reaching their decision^[29*]. In some instances, the Supreme Court deprecated the practice of a two member Bench doubting the correctness of the decision of a Constitution Bench and referring it to a five member Bench^[30*]. In some instances, when a two member Bench doubted the correctness of a Constitution Bench and referred it to a seven member Bench, the same was entertained^[31*].

[15* State of Travancore-Cochin v. Shanmuga Vilas Cashewnut factory, AIR 1953 SC 333]

[16* This is one of the circumstances pointed out by Fitzgerald, supra, as weakening the principle of stare decisis. The number of judges in a majority or minority view of a judgment was considered for the purposes of determining the precedent value of the judgment. In Supreme Court Advocates-on-Record Assn v. Union of India, (2016) 5 SCC 1 at para 669, the court made an interesting analysis and found that in some cases when one considers the number of judges in the judgments overruling, and the overruled judgments, it shows that five judges had overruled opinions of seven judges.]

[17* (1973) 1 SCC 856. See also Waman Rao v. Union of India, (1985) 1 SCC 275. In Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, the court struck a different note and held that it would be hard to discard stare decisis when certain situations have crystallised and unsettling them would create avoidable problems.]

[18* [1950] S.C.R. 88]

[19* AIR 1974 SC 2009]

[20* (1967) 3 SCR 339]

[21* 1954 SCR 30]

[22* (1955) 2 SCR 1196]

[23* Lt. Col. Khajoor Singh v. Union of India, (1961) 2 SCR 828]

[24* In his dissenting opinion in Massachusetts v. United States, (1947) 333 U.S. 611]

[25* Ostime v. Australian Mutual Presidential Society, (1960) AC 459]

[26* (1986) 1 SCC 43]

[27* Prakash Amichand Shah v. State of Gujarat, (1986) 1 SCC 581]

[28* The central idea is that in order to make the test, let him first frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire whether, if the court had conceived this new proposition to be good, and had had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also. State of Gujarat v. Utility User’s Welfare Association, 2018 6 SCC 21. In Punjab Land Development and Reclamation Corporation Limited v. Presiding Officer, Labour Court, (1990) 3 SCC 682, the court observed that it is the discretion of the court to determine the ratio of the case cited before it.]

[29* In Vidyacharan Shukla v. Khubchand Baghel, AIR 964 SC 1099, Subba Rao, J, wrote the main judgment. Rajagopa Ayyangar, J, Raghubar Dayal, J, and Mudholkar, J, agreed with Subba Rao, J, that the appeal should be dismissed but each of them did not agree with the reasons given by Subba Rao, J and gave their respective reasons.]

[30* Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha, (2001) 4 SCC 448]

[31* A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602]

Conclusion

No one would dispute the proposition that consistency for the sake of consistency is not desirable, and where the circumstances demand a change of opinion, one would not hesitate to make the change. The Supreme Court has declared in no uncertain terms, time and again, that the courts would follow their earlier judgments. However, the court also declared that it would not hesitate to review and overrule its earlier judgments if it is necessary, and it would not be strictly bound by the rule of procedure such as stare decisis. Though the court has attempted to frame certain broad parameters for exercise of its powers in this regard, it has, by and large, left it to the wisdom of the judges considering the cases cited before them. This resulted in instances where the court first overruled its judgment and later such judgment was overruled, restoring the principles laid down in the first judgment^[32*]. A number of judgments in which the Supreme Court doubted its own judgments was sought to be reviewed, and the frequency with which such reviews are sought shows the necessity to look into the reasons for such frequent review.

[32* Para 673.6 in Supreme Court Advocates-on-Record, supra.]

[*] Research Scholar, VIT School of Law,VIT Chennai-600 127.

[**] Associate Professor & Head of the Department, VIT School of Law, VIT Chennai -600 127.

In England and Wales, Ireland, New Zealand, Australia, South Africa, Bangladesh, India, Pakistan, Canada, Sri Lanka, and many other countries in the world, it is generally considered inappropriate to comment publicly on cases sub judice, which can be an offence in itself, leading to contempt of court proceedings. This is particularly true in criminal cases, where publicly discussing cases sub judice may constitute interference with due process of justice dispensation.

Ubi jus ibi remedium is another basic fundamental principle of English Common law which means wherever there is a right, there is a remedy. As a general rule any aggrieved person can file a suit under the Code of Civil Procedure, and legally there is no bar if the Plaintiff has a sustainable cause of action and the suit is filed at the appropriate place, according to Code of Civil Procedure. However, there are few types of suits that are exclusively barred under the provisions of Code of Civil Procedure.

With a large number of pending cases in all courts in all jurisprudences, and the inevitable delay in adjudication, (even the Indian judiciary is overburdened and resultantly there is a long delay in timely disposal of the cases), even in Common Law and various other Systems of adjudication, the principle of Res Sub-Judice evolved. Thus, a doctrine developed to the effect that when two suits, arising out of the same issues, between the same parties or persons claiming under any of them on the same title, are brought before the courts, the suit filed prior in time shall continue, and the proceedings in the later suit were to be stayed. This doctrine of res sub judice has been captured and statutorily incorporated in Section 10 of the Code of Civil Procedure, 1908.

Section 10 deals with Doctrine of Res Sub-Judice. `Res’ means a `matter or litigation’ and `Sub-Judice’ means `pending’ (under judgment). Conjoining the two, it implies that the rule of Res Sub-Judice relates to a matter which is pending judicial trial. In other words, this rule applies where a matter is already pending before a court of competent jurisdiction, for the purpose of adjudication, then under Section 10 of CPC, subsequent (later) civil suit on the same issue between the same parties has to be stayed.

The phrase Res Sub judice is derived from a Latin maxim which means the “under judgment”. The rule of sub judice is based on the public policy, which prohibits a party to the suit to file two parallel cases on the same subject matter and minimise the chances of having two contradictory judgments by the two courts. The purpose of the doctrine of Res Sub Judice is to prevent the multiplicity of the proceedings and to avoid two conflicting decisions. The doctrine bars the parallel trial of a suit, where the matter is pending adjudication in a former suit, but it does not restrict filling the subsequent suit. It is based upon the theory of “first past the post” which means that the one who approaches the court first gets to carry on his suit.

The object of the principle contained in Section 10 is to prevent courts of competent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations, in respect of the same cause of action, between the same parties, the same subject-matter and the same relief. The primary rule under stay of suit or rule of res sub-judice prevents the courts of concurrent jurisdiction from simultaneously adjudicating upon parallel litigation filed for the same cause of action, for the same matter and for the same relief. Thus, two suits between same parties, involving same subject?matter and same questions then the subsequent suit should be stayed.

The objective of law is to confine the parties to the suit to one litigation, thereby avoiding the unnecessary delay, wastage of time and resources, and further also minimising the possibility of two conflicting decisions with respect to the same cause of action. It also protects the litigants from unnecessary harassment, as was held in SPA Annamalay Chetty v. BA Thornlill AIR 1931 PC 263.

However, in order to fall within the parameters of section 10, it is essential that there must be two suits, not instituted simultaneously i.e. one should be instituted prior in time before a court of competent jurisdiction, and the other one should be subsequent in time. It is also a condition precedent that the two suits should be between the same parties, or between persons claiming under any of them under the same title, and the matter in issue of the two suits must be substantially the same. Whether the matter is directly or substantially the same in the previous suit or not, the primary test for the same is to imply as to whether a final decision in the previous suit would operate as res judicata in the subsequent suit.

Section 10 of the Code of Civil Procedure, 1908, reads as under:

10. Stay of suit :- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government and having like jurisdiction, or before [the Supreme Court].

Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action.

Therefore, the primary object of the doctrine of res sub judice is to prevent simultaneous proceedings on litigation of same issues in two courts and avoid litigation on the same cause of action on the basis of principles of res judicata. Technically speaking, section 10 applies to those litigations which come within the scope of section 9, read with section 26(2) of the Code. The doctrine of res sub judice only bars the `trial’ of the subsequent suit. In cases where the subsequent suit does not depend on a trial, for example a summary suit, such suits are not affected by the rule of res sub judice and need not be stayed. It may also be noted that the institution of the subsequent suit i.e. mere filing of the plaint is not barred, only the trial proceedings are barred under the rule of res sub judice, as was held in Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd., AIR 1998 (SC) 1952. It was observed by the Apex Court that Section 10 of the Code prohibits the court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit provided other conditions mentioned in the section are also satisfied.

The term `trial’ in Section 10 applies to all the proceedings in a civil suit. The language of section 10 suggests that it is referable to a suit instituted in the civil court, and cannot apply to the proceedings of any other nature, instituted under any other Statute, as was held in National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR 2005 SC 242. It was also held in Sennaji Kapuechand v. Pannaji Devichand, AIR 1922 Bom 276, that since only trial is stayed under section 10, any of the orders passed without there being a trial, such as attachment, injunction etc. are not affected by res sub judice. Therefore, the rule of res sub judice only bars the trial of the suit, and does not bar the courts from adjudicating upon interlocutory orders such as appointment of receiver, injunction or attachment. Thus, the subsequent suit, even when stayed under res sub judice, is not a dead suit as the court is empowered to adjudicate over interlocutory matters that don’t require trial. It was held by the Supreme Court:

“8. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the -same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contra-distinction to the words “incidentally or collaterally in issue”. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical.“

(emphasis supplied by the writer)

The word `shall’, as used in the body of section 10, makes it mandatory for the court to stay the subsequently instituted suit, if it finds out that the conditions enumerated in Section 10 are satisfied. The test for invoking the provisions of section 10 to seek a stay of the suit is that whether the outcome of the prior litigation shall bind the parties for the same issue in a subsequent litigation, or in other words whether the decision in the prior suit on the said issue shall operate as res judicata in the subsequent suit.

It may now be relevant to discuss briefly the concept of Res Judicata, as it is not only one of the basic principles of law, but also one of the conditions precedent for invoking the power of the court to stay the proceedings of the subsequent suit under section 10.

Res Judicata, also known as claim preclusion, is the term for “a matter already judged”. It is based upon the Latin maxim “Res judicata pro veritate accipitur”.

It means that once the issue before a court has already been decided by another court, of competent jurisdiction, between the same parties, the subsequent court shall not re-adjudicate the same, and the earlier judgement shall have a binding effect on both the parties. It refers to two concepts, both in civil law and common law legal systems: a case in which there has been a final judgment that is not subject to appeal; the legal doctrine meant to bar (or preclude) relitigating of the claim between the same parties. The doctrine of res judicata is a principle of preventing injustice to the parties of a case supposedly finished; but perhaps also (or mostly) a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion over a lis that already stands decided. Thus, when a case has already been decided and the final judgement in that the matter is no longer subject to appeal, the doctrine of res judicata bars or precludes continued or further litigation of such matter between the same parties.

The doctrine of Res Judicata is based upon three legal Maxims:

•Nemo debet bis vexari pro eadem causa – no man should be tried twice for the same cause;

•Interest rei publicae ut sit finis litium – it is in the interest of the State that there should be an end to a litigation;

•Re judicata pro veritate occipitur – a judicial decision must be accepted as correct.

Thus, In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use the principles of res judicata to deny reconsideration of the matter, and treat the earlier decision as binding. This also results in efficiency in the judicial system. The doctrine of Res Judicata may be direct or constructive and artificial. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure, and in many other situations also, principles not only of direct res-judicata but of constructive res-judicata are also applied. If by any judgment or order, any matter in issue has been directly and explicitly decided, the decision operates as res-judicata, and bars the trial of an identical issue in a subsequent proceeding between the same parties or persons claiming under them or any of them, through same title. The Principle of res judicata comes into play when in a judgment or order, a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications, even then the Principle of res judicata on that issue is directly attracted. 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 about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided, as was held in AIR 1978 SC 1283.

Though both these doctrines of Res Sub Judice and Res Judicata are based upon the principles of Estoppel, that creates a check on frivolous subsequent litigation and lead to judicial efficiency, yet there is a stark difference between the two. While the principle of Res Sub Judice as laid in section 10 CPC, bars trial of a subsequent suit on an issue which is pending decision in a previously instituted suit and applies to a matter pending trial ,the doctrine of Res judicata as envisaged in section 11 CPC, bars the trial of a suit or an issue which has been decided and attained finality in a former suit, and always applies to a matter that has already been adjudicated upon by a court of competent jurisdiction. The general doctrine of res judicata is founded on considerations of high public policy that there must be a finality to litigation and the individuals should not be harassed twice over with the same kind of litigation. The doctrine of res sub judice or stay of suit as contained in Section 10 of the Code aims to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits, between the same parties or persons claiming under them, relating to same matter substantially in issue, and to avoid the conflicting decisions of two competent courts in respect of the same relief. Thus, the doctrine of res judicata is related to finality of judicial decisions, where as the principle of res sub judice avoids contradictory judgments of one or more courts in respect of the same matter in issue.

The litmus test to apply the principles of res sub judice, as discussed above, is that whether the issue involved in the litigation between the same parties and before a court of competent jurisdiction is directly and substantially the same as in the prior instituted pending suit.

The words “matter in issue” used in Section 10 do not mean that entire subject-matter of the subsequent suit and the previous suit must be the same, or that it must be identical. These words mean all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit. The word `directly’ means immediately, without intervention and `substantially’ implies essentially or materially. Thus, whenever the subject matter of a subsequent litigation is substantially similar to that of previously instituted suit, the court can invoke the provisions of section 10 CPC to stay the trial of the subsequent suit. It was held by the Supreme Court in Isher Singh v. Sarwan Singh and others 1962 AIR SC 948, that “the question whether a matter is “directly and substantially in issue” would depend upon whether a decision on such an issue, would materially affect the decision of the suit“.

It was also held in Aspi Jal and another v. Khushroo Rustom Dadyburjor 2013 (2) RCR (Civil )976 SC that:

“From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e. “no court shall proceed with the trial of any suit” makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, 2005(1) S.C.T. 534 : (2005) 2 SCC 256……”

Further relying upon the said decision of the supreme court it was held in Rajinder Aggarwal and another v. M/s K.R. Finmark Pvt. Ltd.2019 RCR (Civil) 375 :

“The predominant condition is that the matter in issue should be directly and substantially in issue as in the previously instituted suit between the same parties and the decree in one of the suits is bound to frustrate the decree in other suit. The acid test is when the decision of the earlier suit will operate as res judicata in the subsequently instituted suit. The object is to prevent the Courts of concurrent jurisdiction from simultaneously adjudicating upon two parallel litigations in respect of same cause of action and the same subject matter involving same relief. The ratio laid down in Aspi Jal v. Khushroo Rustom Dadyburjor 2013(2) RCR (Civil) 976 (SC) can be relied.“

(emphasis supplied by the writer)

Thus, the acid test to determine as to whether the subsequent suit should be stayed or not is to analyse as to whether the decision of the prior pending suit shall have any bearing upon the subsequent suit, so much so whether the same shall curb the litigation by invoking the principles of res judicata. As stated above in the preceding paragraphs, though the body of the section applies only to suits, however in Dr. Aloys Wobben and another v. Yogesh Mehra and others 2014 AIR (SC) 2210 the supreme court held that while invoking the provisions of section 10 CPC that even a “counter-claim” is tried jointly, with the suit filed by the plaintiff, and has the same effect as a cross-suit .Therefore, for all intents and purposes a “counter-claim” is treated as a plaint and since a “counter-claim” is of the nature of an independent suit, a “counter-claim” cannot be allowed to proceed, where the defendant has already instituted a suit against the plaintiff, on the same cause of action.

Although the provisions of Section 10 are mandatory, this does not take away the court’s inherent power under Section 151 CPC, so as to stay the proceedings on the facts and circumstances of a given case to secure the ends of justice where section 10 is not is not applicable. Therefore, the court may use its inherent power to secure the ends of justice even when section 10 is not applicable, to prevent abuse of process of the court, the court may stay `former suit’ too, by applying its inherent power as was held in Ram Bahadur Thakur And Co. v. Devidayal (Sales) Ltd., AIR 1956 (Bombay) 176.

There may also be a situation where though a subsequent suit has been filed by a party to the litigation, but no such application under section 10 is moved, or the same is moved but is dismissed, and ultimately a decree is passed in the subsequent suit too. In such a situation the decree so passed shall have the same force as any other decree, and the same can not be negated or ignored only on the basis of principles of section 10, the same being only procedural in nature.

It may well be noted that the stay of the suits under section 10 is only pertaining to suits that are subsequently filed in civil courts in India. The explanation to the section makes it abundantly clear that the same shall not apply to any such suit which is filed in India subsequently, even when a prior suit is pending in a foreign country on the same cause of action. However, there may be a situation where a prior suit is pending in India and the party to the litigation files another suit on the same issues in a foreign country. In such a situation the High Court can restrain him from continuation of an action in a foreign court if the same is opposed to equity. The said power of restriction however, cannot be exercised by a subordinate court, as was held in AIR 1927 Bom. 135 (DB) and AIR 1928 Mad. 491(DB).

Thus, what transpires is that principle of res sub judice as envisaged under section 10 CPC is procedural in nature, and is carved out not only to increase the efficiency of judicial work, but also to caste a check on the never ending frivolous litigation that a party to the litigation may wish to carry on.

The main objective behind this doctrine is to avoid wastage of time of the court, conflict of decisions on the same or similar issues between the same parties and to put an end to an issue that is pending trial. The test for res sub judice as discussed earlier is whether a final decision in the previous suit would operate as res judicata in the subsequent suit and if it does then the court shall not be shy to stay the trial of the subsequent suit and making the parties to the litigation stay off the suit as says the principle of res sub judice.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

“You can never understand one language until you understand at least two.” – Geoffrey Willans

In today’s competitive world, the legal professionals and the litigants expect that their concerns are communicated and conveyed through effective ideas and expressions before a Court of law in a language that fulfils the duality of communication and clarity of understanding. The genius of any human expression emanates from the spark that is ignited by ideas, whatever be the language employed to communicate the same.

The language used in Courts in India has seen a transition over centuries shifting from the use of Urdu to Persian and Arabic scripts during the Mughal period which continued in subordinate courts even during the British Rule. The British introduced a codified system of law in India with English as the official language. Post-independence, Article 343 of the Constitution of India provides that the official language of the Union shall be Hindi in the Devanagari script. However, it mandated that the English language will continue to be used for all official purposes of the Union for 15 years from the commencement of the Constitution of India. It further provides that the President may, during the said period, by order authorize the use of the Hindi language for any official purpose of the Union, other than the English language. Article 345 provides that the Legislature of the State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of the State. Article 348 (1) of the Constitution of India provides that all proceedings in the Supreme Court and each High Court shall be in the English language unless the Parliament provides otherwise by law. Article 348(2) allows the Governor of the State, with the previous consent of the President, to authorize the Hindi language or any other language to be used for any official purposes of the State in proceedings in the High Court.

In 1963, the Official Languages Act was enacted, which provided that notwithstanding the expiration of the period of 15 years as provided in the Constitution, the English-language may be continued to be used in addition to Hindi language for all official purposes and transaction of business in the Parliament. Section 7 of the Act, states that the use of the Hindi or official language of a State, in addition to the English language, may be authorized with the consent of the President of India, by the Governor of the State for purpose of judgments, decree or order made by the High Court of that State. The conclusion derived from the collective reading of Article 348 of the Constitution and the Official Languages Act, 1963, is that English continues to remain the actual official language with respect to the Acts of Parliament and the Courts.

Indian people speak as many as 22 major languages written in 13 different scripts, with over 720 dialects. The official Indian languages are Hindi and English, which are widely spoken and recognized. In addition, various states in India have their official local language and this linguistic diversity is one of the unique features of our democracy. However, the plan to make Hindi the only official language of the country has met with stiff resistance in many parts of the country. Thus, in combination with other local official languages in the state, English and Hindi continue to be used today as major official languages. The Eighth Schedule of the Constitution of India specifies the different Indian languages recognized as official languages of different areas in the country.

As already stated, India being a country of a melange of cultures, time and again call for weeding out English from our legal system has been raised. However, English is so deeply embedded in our system that the idea to gradually do away with it would appear to be more of an illusion. No doubt, every litigant in the country is entitled to be able to understand the court language to comprehend the court proceedings, however, the disadvantages that we are likely to face on eliminating the English language are as follows:

1. The entire education system would need an overhaul, right from the primary level to professional courses. Interestingly, the Bar Council Rules of Legal Education in India, 2008 as well as the draft rules of 2019 provide English as the medium of imparting legal education in India.

2. Most of laws, statutes, and judgements are in English. First, the translation will have to be exhaustive and accurate. Secondly, the divergence between different versions in different languages would lead to ambiguous interpretations of legal provisions. In such cases, multilingualism would become a part of the problem instead of the solution.

3. A variety of court languages will result in delays in decisions of cases. Under the National Transfer Policy, as per Article 222 of the Constitution of India, the Hon’ble judges are transferred from one court to another interstate and thus may not be well conversant with the local language. In such a situation more time will be consumed in hearing of the cases due to translations, interpretation and trying to understand the local language.

4. Various legal maxims are in Latin and may have no corresponding terms in Indian languages. Local languages are further devoid of legal terminology and limited written materials such as dictionaries, and glossaries are available.

5. The language in which communications between different states, or between the Union Government and a state or a person takes place is usually English.

6. Change of court language to local language would hamper the practice of the lawyers as most lawyers are trained to work and argue in English. Moreover, clients who may not be conversant with the local dialect would hesitate to trust the lawyers. Further, the lawyers who are not well conversant with the local languages of other states will be confined to their local courts and state only.

7. A multilingual legal system is likely to increase the cost of litigation merely due to the sheer volume of the translation work involved, besides other difficulties.

8. Still further, the nature of economic and industrial development taking place in India with the aid of foreign investment, promoting local languages and phasing out English in Courts would again have a discouraging effect on investors. Due to international agreements, Courts are required to consider and interpret International laws which are predominantly in English.

The Law Commission of Indian on “Feasibility of Introduction of Hindi as Compulsory Language in the Supreme Court of India”, Report No. 216, noted as follows:

“i) Language is a highly emotional issue for the citizens of any nation. It has a great unifying force and is a powerful instrument for national integration. No language should be thrust on any section of the people against their will since it is likely to become counter-productive.

ii) It is not merely a vehicle of thought and expression, but for Judges at the higher level, it is an integral part of their decision-making process. Judges have to hear and understand the submissions of both the sides, apply the law to adjust equities. Arguments are generally made in higher courts in English and the basic literature under the Indian system is primarily based on English and American text books and case laws. Thus, Judges at the higher level should be left free to evolve their own pattern of delivering judgments.”

Despite the disadvantages referred to above, a multilingual legal system can be adapted in some form at par with the changing times and evolution of the Indian society. States like Bihar, Uttar Pradesh, Madhya Pradesh and Rajasthan have been permitted to conduct proceedings in their High Courts in Hindi as the official language. On the other hand, the Supreme Court of India rejected the proposal of allowing the States of Chhattisgarh, Gujarat, Tamil Nadu and Karnataka for permission to conduct court proceedings in local languages. Although in Tamil Nadu, lawyers in the High Court are invariably allowed to argue in Tamil language. Nevertheless, subordinate courts in India extensively conduct court proceedings like pleadings, recording of evidence etc. in the local language along with English as an indispensable language.

In the Parliament, simultaneous interpretation service is available in both the Houses providing a live interpretation of the speeches made by Members and Ministers in any Indian language into English and Hindi. Even the Hon’ble Supreme Court has realized the importance of multi linguistic system and in 2019 have provided an option for “Vernacular Judgments” on the Supreme Court’s website in Assamese, Bengali, Hindi, Kannada, Marathi, Odia, Tamil and Telugu and Urdu. The translation of judgements is made available in labor matters, Rent Act matters, land acquisition and requisition matters, service matters, compensation matters, criminal matters, family law matters, ordinary civil matters, personal law matters, religious and charitable endowments matters, simple money and mortgage matters, eviction under the Public Premises (Eviction) Act matters, land laws and agriculture.

Internationally, Abu Dhabi has included Hindi as the third official language to be used in its courts, besides Arabic and English, as a large part of the immigrant population is Hindi speaking there. Recently, the Haryana Government amended the Haryana Official Language Act, 1969 by introducing The Haryana Official language (Amendment) Act of 2020, which mandates Hindi as the official language in subordinate courts and tribunals of the state. Section 3-A in the amending Act reads as under:

“3-A. use of Hindi in Courts and Tribunals: (1) In all the civil courts and criminal courts in Haryana subordinate to the High Court of Punjab and Haryana, all revenue courts and rent tribunals or any other court or tribunal constituted by the state government, work shall be done in Hindi language.“

In May 2020, the Governor of Haryana has also recommended to the President of India, with reference to Article 348 (2) of the Constitution of India for his consent, which will authorize the use of the Hindi language in the High Court also. Recently the said notification was a subject matter of challenge in the Supreme Court, however, the court refused to interfere in the matter and allowed the petitioners to withdraw the petition. The bench comprised of Chief Justice S.A. Bobde and Justice A.S. Bopanna and Justice Hrishikesh Roy questioned the petitioners as to what was wrong with the law as around 80% of the litigants do not understand English and observed as under:

“There is nothing wrong in Hindi as the official language of subordinate courts in some states. Even, during the British Rule, the recording of evidence was doing in vernacular language,“

Thereafter a petition has now been filed in the Punjab and Haryana High Court in CWP 8277 of 2020 titled as Sameer Jain and Others v. State of Haryana and Another and the matter is now pending after notice to the respondent State.

It is important to note that the Court of Justice of the European Union is a successful multilingual institution that can be studied by lawmakers in India. Any of the 24 EU official languages may be the case language, although, French is the working language. At the same time, decisions of courts are published in European court reports in all official languages. The courts have a dedicated department for translation which employs law experts and linguists as translators who are required to have complete knowledge of the case being heard. Immediate interpretation and translations are provided at the time of hearing in European Union courts as is needed.

The Court, in the case of Prabandhak Samiti and Ors. v. Zila Vidyalaya Nirikshak, Allahabad and Ors. reported in AIR 1977 All. 164, correctly spelt out the dilemma we are facing today while observing as under:

“4. But the language of the people ultimately replaced the language of the upper class even in the law courts of England. The language which had entered into the life of the British people was English and none could resist it entirely. Law, as Maitland has said is the point where life and logic meet. Therefore, French had at last to give way to English in spite of the former’s superiority in the qualities of precision and richness of technical terms. Ultimately by the Act of 1731, which was passed in the period of the complete supremacy of Walpole, the use of Latin in the law courts was abolished in England.

5. In India we are witnessing a somewhat similar spectacle. The traditionalists contend that “English has today become a part of the warp and woof of Indian thought and language and of the culture of a considerable number of Indians”. A member of the Parliament recently stated that “English is the language of the Constitution, the language of many of the lower Courts, the High Courts and the Supreme Court, the only authoritative language of the Legislature and the only language in administrative, judicial, and educational spheres.” On the other hand, the protagonists of the divine Sanskrit and its beauteous daughter Hindi declare that Hindi is the language in which their prophets, bards and writers have unravelled the mysteries of the earth and heaven and taught them to scorn the fleeting objections of the senses and grow into that spiritual oneness which is the Divine Life. For them Hindi is the language in which Meera Bai sang her ecstatic songs, Tulsi and Surdas invoked their blessed Masters and Jaishanker Prasad wove his immortal fantasies. The issue, however, must be decided on a rational basis, on objective factors, shorn of the subjective element or the personal inconvenience inevitable in a process of radical change. For a generation accustomed to the use of an exotic tongue like English, though with little pretension to proficiency therein, the adoption of Hindi must appear irksome and involving great difficulty of mental readjustment. But that is no answer to the arguments advanced on behalf of Hindi. Mahatma Gandhi stated the truth thus : “Our masters chose the wrong way for us and have made the wrong appear as right”.

Besides the political populism, the migration from English as a court language would have far-reaching consequences. To weaken the chorus of opposition, we have to take a practical approach after conducting a proper survey and formulating the standard operating procedures for multilingual courts. A lot of effort is required to be invested by engaging consultants as well as experts in the field to replace a well-developed system. While multilingualism is celebrated for its ability to complement the society, it may also be viewed as anomalous, for Indian Courts to keep up the identity and singularity of the Indian legal system.

(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)

A decision of a civil suit culminates into a decree and the party in whose favour suit is decided, becomes the decree holder and the opposite party, against whom the suit is decided becomes the Judgement Debtor.

A decree passed by the court of first instance, (popularly called trial court), is subject to appeal under the provisions of section 96 of code of civil procedure, before the first appellate court, and any decision thereof can further be challenged by either of the affected parties by filing a second appeal before the High Court.

The Second Appeal challenging the judgement and decree of the first appellate court can be filed before the High Court, under section 100 of the Code of Civil Procedure 1908 (CPC).

However, prior to the amendment in the CPC in the year, vide Act 104 of 1976, w.e.f. 1.2.1977, the unamended provisions of Section 100 read as under:

100 (1). Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to a High Court on any of the following grounds, namely:

(a) the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

(2) An appeal may lie under this Section from an appellate decree passed ex parte.

At this stage it would be pertinent to trace the history of judicial administration in the erstwhile State of Punjab. By the Punjab Courts Act, XIX of 1865, inter alia, seven classes of Courts were brought into being in the civil Jurisdiction. Starting from the Court of Tehsildar at the bottom to the Court of the Judicial Commissioner at the top In 1877, the Punjab Courts Act, (XIX OF 1865) AND The Chief Court Act (IV of 1866), were repealed by the Punjab courts Act, (XVII of 1877), which consolidated and re-stated the law inter alia relating to the Chief Court. The Punjab Courts Act, XVIII of 1884, which repealed the Punjab courts Act of 1877, not only touched the question of subordinate courts, their reconstruction, jurisdiction and powers, but also modified and restated the law regarding the constitution, powers and jurisdiction of the Chief Courts as well. Further changes in the subordinate judicial set up were brought by the Punjab Courts Act, 1914; where under four classes of courts were set up, namely, the Court of District Judge, the Court of Additional district Judge, the Court of Subordinate Judge and the Court of Munsif. Later through the Punjab Courts Act, 1918, a landmark, which continued with minor amendment as the court of Munsif was abolished. In addition to these courts, Courts of Small Causes were established under the Provincial Small Causes Courts Act.

Section 18 of The Punjab Courts Act, (as amended from time to time), provided for creation of a hierarchy of civil courts in the State of Punjab, as follows:

18. Classes of Courts.– Besides the Courts of Small Causes established under the Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be the following classes of Civil Courts, namely: –

(1) The Court of District Judge;

(2) The Court of Additional District Judge;

(3) The Court of Civil Judge (Senior Division); and

(4) The Court of Civil Judge (Junior Division).

This Act further lays down the pecuniary jurisdiction and consequential powers of the aforesaid various courts, including their appellate powers. Whereas, Section 39 provides for a first appeal from an original decree, a Second Appeal from such first appellate decree lies before the High Court, under Section 41 of the Punjab Courts Act, 1918.

Section 41 of the Punjab Courts Act 1918 reads as under: –

Second Appeals-(1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:

(a) the decision being contrary to law or to some custom or usage having the force of law;

(b) the decision having failed to determine some material issue of law or custom or usage having the force of law;

(c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits;

(2) An appeal may lie under this section from an appellate decree passed ex parte.

A bare comparison of the above two provisions would clearly show that they were in pari maetria to each other. However, the Appeals in the State of Punjab were always filed under the provisions of The Punjab Courts Act, 1918, being the law-generis, for the creation of Courts and defining their respective jurisdiction.

In these circumstances, the Second Appeals also were filed in the Punjab and Haryana High Court under section 41 of the Punjab Courts Act.

Vide an Amending Act No. 104 0f 1976, coming in force with effect from 1.2.1977, various amendments in CPC were carried out. Consequently, Section 100, thereof, also went through substantial changes.

The Amended Section 100 of CPC provides:

“100. Second appeal.-(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.”

Thus, under the aforesaid amended provisions of section 100 CPC, the scope of a Second Appeal was confined to a second appeal involving a Substantial Question of Law, and only as per the procedure laid down in the said provision.

Apparently, after the amendment of the CPC, there was a huge difference in the scope of interference in a Second Appeal, filed under the provisions of section 41 of the Punjab courts act 1918, and that filed under amended Section 100 of CPC, a question arose as to whether the second appeal in the Punjab and Haryana Court, was to be continued to be filed under the Punjab Courts Act or was now required to be filed under the amended provisions of Section 100 CPC.

The said question was referred to a full bench of the Punjab and Haryana High Court in Ganpat v. Smt. Ram Devi and others 1978 AIR (Punjab) 137 FB. It would be advantageous to quote in extenso from the said judgement, as follows: –

“The two significant questions succinctly formulated in the Reference Order, which call for determination by this Full Bench are in the following terms: –

1. Has the amended section 100 of the Code in any way affected the provisions of section 41(1) of the Punjab Courts Act?

2. What interpretation is to be placed on the phrase ‘substantial question of law’ occurring in amended Section 100 of the Civil Procedure Code?

2. It is evident from the above that the issues aforesaid are pristine legal ones, and, therefore, any reference to the facts of the case is, indeed, unnecessary. It suffices to mention that they arise at the very threshold at the stage of the admission of innumerable Regular Second Appeals in this Court in view of the radical amendments introduced in section 100 by the Civil Procedure (Amendment) Act, 1976.

3. At the very outset it may be pointed out that we would first devote ourselves to question No. 1 because it is plain that if an answer is returned to the said question in the negative, the second question perhaps would hardly arise or in any case would become academic in nature.”

**********

“23. From the aforesaid discussion, it is thus evident that on the principle, on the specific language of the statutory provisions involved, and the overwhelming weight of authority, it must be held that the provisions of section 41 of the Punjab Courts Act are in no way affected or curtailed by the amended Section 100 of the Civil Procedure Code. Therefore, in the jurisdiction, to which the Punjab Courts Act extends the admission and adjudication of second appeals would be governed by section 41 of the Act to the exclusion of the general provisions of section 100 of the Code. The answer to the first question is, therefore, returned in the negative.

24. Though we have arrived at the aforesaid inevitable conclusion in view of the existing statutory provisions, we are of the view that in the interests of the uniformity of law on the point, the corresponding provisions of section 41 now might as well be in line with the amended provisions of section 100. It would be obviously wasteful for us to elaborate our reason therefore because this matter has been exhaustively considered and illuminatingly presented by the Law Commission in its fifty-fourth Report. A reference to pages 74 to 93 of the said report is indeed instructive on the point and we entirely agree with the same. Reference may also be made to the statements of objects and reasons for the Civil Procedure Code (Amendment) Bill, 1974 and the notes to clause 39 thereof pertaining to the amendment of section 100 of the Code. This matter was again considered by the Parliamentary Select Committee and it was thereafter that the amendment to section 100 was passed by Parliament and the present section 100 was enacted. It deserves recalling that earlier the provisions of the unamended section 100 and section 41 of the Punjab Courts Act were virtually in pari materia and there appears hardly any reason why it should not continue to be so. We are, therefore, of the view that the matter deserves the consideration of both the State Governments of Punjab and Haryana for such legislative action as they may deem necessary. In the alternative it is also for the Central Government to consider whether the amended section 100 may not hold unrivalled sway all over the country irrespective of any existing local or special statutes to the contrary. Copies of this judgment be forwarded to the three Governments for their consideration.

25. Adverting now to question No. 2, it is obvious that the phrase ‘substantial question of law’ has been introduced by the amending Act, 1976 in section 100 of the Code. As we have held above, the provisions of this section are now excluded by virtue of the special provision of section 41 of the Punjab Courts Act. Within this jurisdiction, therefore, this question becomes entirely academic in nature. It is the settled practice of the superior Courts not to examine and decide issues which do not directly affect the rights of the litigants before them. We, therefore, decline to go into this question.”

Thus, it was clearly held that the special legislation in the form of Punjab Courts Act, 1918, shall prevail over the general provisions of Section 100 CPC, and thus the scope of second appeals was subject to the provisions of section 41 of the Punjab courts Act 1918, and as a result the Second Appeals in the High Court of Punjab and Haryana were/are filed and entertained under Section 41 of the Punjab Courts Act, 1918.

With the passage of time, the said question yet again arose before the Supreme Court of India in Kulwant Kaur v. Gurdial Singh Mann (dead) by Lrs 2001 AIR (SC) 1273, wherein it was held that:

“10. Needless to record here that prior to the Amendment Act of 1976, through which the amendment to Section 100 was brought in the statute book, the question of Section 100 being inconsistent with Section 41 of the Punjab Act did not arise, since the Punjab Act is in consonance with unamended Section 100 without there being any differentiation and are compatible to each other being pari materia. Since the relevant statutory provisions have already been noticed herein before in this judgment, we need not recapitulate the same, and suffice however, to notice what stands noticed already. The situation, however, stands differently on the incorporation of the amendment to Section 100. With the amendment, the power to entertain a Second Appeal by the High Court stands restricted only on such occasions when the High Court is otherwise satisfied about the involvement of a substantial question of law. The addition of this new concept of substantial question was not available in the Civil Procedure Code prior to the amendment or in the Punjab Act. What however is a substantial question we need not go into the same neither we are called upon to note in extenso the true purport of the expression. The issue stands concluded since the decision in Chunilal’s case [Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 Supreme Court 1314] and subsequently in the decision of this Court in Pankaj Bhargava’s case [Pankaj Bhargava and another v. Mohinder Nath and another, 1991(1) RCR(Rent) 96 (SC) : 1991(1) SCC 556]. We are concerned with a much narrower issue as to whether the two Acts can be termed to be inconsistent with teach other as stated by the Punjab Full Bench (supra). The learned Advocate for the Respondents responded in the negative by placing reliance upon amended Section 100 and in particular the saving part of Section 100(1) which according to the submission saves the Punjab statute. The same, however, needs to be delved into in some detail. With reference to this submission, i.e. the saving provision, intention of the legislature seems to be that any other law for the time being in force (e.g. Punjab Act) shall stand saved – This in short is the case made out for the respondents. As a matter of fact, the respondents reiterated the reasonings as adopted by the Punjab Full Bench and contended that by reason of the express saving, question of Punjab Act being declared repugnant to the Section 100 does not and cannot arise. The respondents contended that the manifestation in the earlier Section 100 so far as protection of State Law is concerned is still maintained and there is identity with such manifestation in the pre amended and post amended Section 100 of the Civil Procedure Code and in this context reference to Section 4 of the Code under which special or local law even special form of procedural law stands saved. A look at section 4 of the Code would thus be relevant and the same reads as below: –

“4. (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit to otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.”

*************

“17. Let us examine to what extent Section 4 or language of Section 100 saves the special or local law after coming into force of the aforesaid 1976 amendment. Section 4(1) of the Code records:

“In the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law now in force….”

18. By this, special or local laws are protected and thus not to be effective in the absence of any specific provision to the contrary. In other words, special or local laws would be functional till any specific provision to the contrary stand engrafted. Since Section 100 Civil Procedure Code unamended was in pari materia with Section 41 of the Punjab Act, there was no conflict and Section 41 continued in its field unaffected. This is reinforced by the language of unamended Section 100 C.P. Code viz:

“Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force….”

19. Thus the wording of this Section 100 qualified Section 41 Punjab Act to be the “other law for the time being in force,” as its Section 41 expressly provided second appeal as Section 100 provides. So, thus for Section 41 of Punjab Act held its field.

20. Now we proceed to examine Section 97(1) of the Amending Act and the amendment of Section 100 Civil Procedure Code by the said 1976 Act. Through this amendment right to Second Appeal further restricted only to lie whether, “the case involves a substantial question of law.” This introduction definitely is in conflict with Section 41 of the Punjab Act which was pari materia with unamended Section 100 Civil Procedure Code. Thus, so long there was no specific proviso to the contrary in this Code Section 4 Civil Procedure Code saved special or local law. But after it comes in conflict Section 4 Civil Procedure Code would not save, on the contrary its language implied would makes such special or local law applicable. We may examine now the submission for the respondent based on language of Section 100(1) Civil Procedure Code even after the said amendment. The reliance is on the following words:

“…Save as otherwise expressly provided… by any other law for the time being in force…..”

These words existed even prior to the amendment and is unaffected by the amendment. Thus, so far it could legitimately be submitted that, reading this part of the Section in isolation it saves the local law. But his has to be read with Section 97(1) of the Amending Act, which reads;

“any amendment made, or any provision inserted in the principal Act by a State Legislature before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provision of the principal Ac as amended by this Act, stands repealed.” (Noticed again for convenience).

21. This clearly reveals true intent of the legislature viz., any provision of the State Legislature existing prior to the amending Act which becomes in consistence to this amending Act is in consonance with both sub-clause (1) and proviso to sub-clause (2) of Article 254 of the Constitution of India. Thus, language of Section 97(1) of the Amending Act clearly spells out that any local law inconsistent goes but what is not in consistence, it could be said the local (law) would still continue to occupy its field.

22. But so far, the present case Section 41 of the Punjab Act, it is expressly in conflict with the amending law, viz., Section 100 amended which would be deemed to have been repealed. Thus, we have no hesitation to hold the law declared by the Full Bench of the High Court in the case of Ganpat (supra) cannot be sustained and is overruled.”

Thus, it is apparent that the Supreme Court expressly overruled the ratio laid down by Punjab and Haryana High Court in Ganpat’s case (supra). As a consequence of this judgement, the second appeal could only be entertained and interfered by the Punjab and Haryana High Court, if it fell under the limited parameters of section 100 CPC.

In the meantime, the High Court, with a view to impart real justice, continued to define liberally the phrase “Substantial Question of Law”. Many a judicial decision were rendered wherein a conclusion arrived at on the basis of misreading and non reading of evidence, and even perversity was also held as one of the substantial questions of law. But as matter of fact, the real scope of interference in a second appeal in the light of provisions of Section 100 CPVC remained very limited.

The issue with regard to the ratio in Kulwant Kaur’s case supra was again analysed by the Constitutional Bench of the Supreme Court in Pankajakshi (Dead) v. Chandrika (SC) (Constitution Bench) 2016 (2) RCR (Civil) 245 whereby the question dealt by the Supreme Court was: –

“9. That apart, the question whether in an appeal arising out of an order passed by the High Court to which section 98(2) of the CPC applies, this Court can in exercise of its power under Article 136 of the Constitution direct the matter to be placed before a third Judge to resolve the conflict arising from two differing judgments, has not been examined either in P.V.Hemalatha’s or Tej Kaur’s case. We, therefore, consider it appropriate to refer to a larger Bench for consideration and an authoritative pronouncement the following two questions:

(1) Whether Section 23 of the Travancore-Cochin Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act. If so, whether Section 23 is in the nature of a special provision vis-a-vis section 98(2) of CPC.

(2) Whether this Court can under Articles 136 and 142 of the Constitution direct in any appropriate case a reference to a third judge to resolve the conflict arising between two judges of the High Court hearing an appeal, on a question of fact.”

3. The 3-Judge Bench in turn referred the matter to a 5-Judge Bench as follows: –

“In the reference order, the 2-Judge Bench has doubted the correctness of the decision of this Court in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and Anr. Since the decision has been given by a 3-Judge Bench in P.V. Hemalatha, we are of the view that correctness of the decision in P.V. Hemalatha has to be considered by a Bench of 5 Judges.

2. The matter is, accordingly, referred to a Bench of 5 Judges.

3. The matter may be placed before the Chief Justice for appropriate administrative order in this regard”

************

“24. Shri Viswanathan also relied upon a Division Bench judgment of this Court in Kulwant Kaur and Others v. Gurdial Singh Mann (dead) by LRS and Others, 2001(2) R.C.R.(Civil) 277 : (2001) 4 SCC 262, to submit that this decision is an authority for the proposition that there is no need to expressly refer to a local law when the legislative intent to repeal local laws inconsistent with the Code of Civil Procedure is otherwise clear……………………………………”

“25. We are afraid that this judgment does not state the law correctly on both propositions. First and foremost, when section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any amendment made or any provision inserted in the principal Act by virtue of a State Legislature or a High Court, the said Section refers only to amendments made and/or provisions inserted in the Code of Civil Procedure itself and not elsewhere. This is clear from the expression “principal Act” occurring in Section 97(1). What Section 97(1) really does is to state that where a State Legislature makes an amendment in the Code of Civil Procedure, which amendment will apply only within the four corners of the State, being made under Entry 13 of List III of the 7th Schedule to the Constitution of India, such amendment shall stand repealed if it is inconsistent with the provisions of the principal Act as amended by the Parliamentary enactment contained in the 1976 amendment to the Code of Civil Procedure. This is further made clear by the reference in Section 97(1) to a High Court. The expression “any provision inserted in the principal Act” by a High Court has reference to Section 122 of the Code of Civil Procedure by which High Courts may make rules regulating their own procedure, and the procedure of civil courts subject to their superintendence, and may by such rules annul, alter, or add to any of the rules contained in the first schedule to the Code of Civil Procedure…………….”

26. Thus, Kulwant Kaur’s decision on the application of section 97(1) of the Code of Civil Procedure Amendment Act, is not correct in law.” (Emphasis Supplied by the writer)

Thus, the present situation remains that after the Constitutional Bench overruled the judgement in Kulwant Kaur’s Case, the position in the Punjab and Haryana High Court was restored back to the law laid down in Ganpat’s Full Bench Supra.

It was held in Jal Singh and another v. Chunni Lal and others 2019 (1) RCR (Civil) 210 that:

“No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio decidendi culled out by five learned Judges of the Hon’ble Supreme Court in Pankajakshi (dead) through LRs and others v. Chandrika and others 2016(2) R.C.R.(Civil) 245 : AIR 2016 SC 1213, wherein the proposition arose as to whether in view of the provisions of section 97(1) CPC, provisions of Section 41 of the Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be filed under section 100 of Code of Civil Procedure and decision thereof could be without framing the substantial questions of law. The Constitutional Bench of Hon’ble Supreme Court held that the decision in Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs and others 2001(2) R.C.R.(Civil) 277 : 2001(4) SCC 262 on applicability of section 97(1) of CPC is not a correct law, in essence, the provisions of Section 41 of the Punjab Courts Act, 1918 had been restored back.”

That in the meantime, many conflicting judgements were passed whereby certain matters were remanded back by the Supreme Court on account of non-framing of substantial questions of law. However, in Kirodi (Since Deceased) through his Lr. v. Ram Parkash & Ors. 2019 (3) RCR (Civil) 168, clarifying the position in Punjab and Haryana High Court, in the light of the Constitutional Bench judgement, it was held by the Supreme Court:

“6. We are elucidating the position which emerges from the Constitution Bench Judgment to put the controversy at rest.

7. It is no doubt true that by virtue of section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as the ‘Amendment Act’) and section 100 of the Code of Civil Procedure, 1976 (hereinafter referred to as the ‘Code’) was amended requiring the second appeal to mandatorily contain a substantial question of law considering the same.

8. It was initially held in Kulwant Kaur & Ors. v. Gurdial Singh Mann (Dead) by Lrs. Ors., 2001(2) R.C.R.(Civil) 277 : (2001) 4 SCC 262 case that Section 100 of the Code would take precedence over Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the ‘Punjab Act’) which conspicuously does not require the framing of such a substantial question of law. It was held that Section 41 of the Punjab Courts Act being repugnant to the amended provisions of Section 100 of the Code and Section 97 of the Amendment Act containing a saving clause, Section 41 of the Punjab Act would no longer hold the field and substantial question of law will be required to be framed. Section 41 of the Punjab Courts Act reads as under:

“Section 41 – Second Appeals

(1) An appeal shall lie to the High court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:

(a) the decision being contrary to law or to some custom or usage having the force of law:

(b) the decision having failed to determine some material issue of law or custom or usage having the force of law:

(c) a substantial error or defect in the procedure provided by the Code of Civil Procedure 1908 [V of 1908], or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits:

1 [Explanation – A question relating to the existence or validity of a custom or usage shall be deemed to be a question of law within the meaning of this section:]

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) [Repealed by Section 2B of Punjab Act 6 of 1941]

9. A Constitution Bench of this Court however in Pankajakshi (Dead) through L.Rs. & Ors. (supra) opined that Section 97 of the Amendment Act prohibited amendments made in the principal Act which were repugnant to the same and, therefore, if any state amendment to the Code was enacted by the state legislature or a rule was made by the High Court of State in respect of the provisions of the Code which ran counter to the Code, it would be hit by the provisions of the savings clause of the Amendment Act. The caveat, however, was that the legislation in question being the Punjab Act is a pre-Constitution Act and hence is not a legislation hit by the provisions of Article 254 of the Constitution of India which holds state enactments to be repugnant to the enactments when they run counter to the laws enacted by the centre through the concurrent list. The legislation was saved by Article 372(1) of the Constitution of India being a pre-Constitutional enactment which was to continue in to be force until altered or repealed or amended by a competent legislature. No such repeal took place, hence, the legislation continues to operate.

10. The effect of the judgment of the Constitution Bench is that insofar as the State of Punjab is concerned, a second appeal does not require formulation of a substantial question of law since the Punjab Act would be applicable for the State. Hence, Section 100 of the Code would not hold the field having supervening effect.”

The cumulative effect of the all these judgements by the Supreme Court re-establishes the same genesis of law, as it was prior to the amendment of 1977 in CPC, and thus the ratio of law as laid down by Ganpat’s Full Bench Supra, still holds good, and a Second Appeal in the Punjab and Haryana High Court is to be filed under the provisions of Section 41 of the Punjab Courts Act 1918, as the said provision exists.