Sections 13 and 14 of the Civil Procedure Code enact (put into practice) the rule of res judicata in the case of foreign judgements. These CPC provisions represent the principle of private international law that a judgement given by a foreign court of competent jurisdiction can be enforced by an Indian court and acts as res judicata (a matter judged or a thing decided) between the parties.

The rule under section 13 of the Civil Procedure Code is substantive law, not just a procedural rule.

This CPC law note tells you the meaning of foreign judgement and when a foreign judgement is not enforceable in India.

What Is a Foreign Court as Per CPC?

The term foreign court is defined in section 2(5) of the Civil Procedure Code as a court situated outside India and not established or continued by the authority of the Indian central government.

What Is a Foreign Judgement as Per CPC?

The term foreign judgement has been defined in section 2(6) of the Civil Procedure Code as a judgement of a foreign court.

Jurisdiction of a Foreign Judgement

In Sankaran Govindan vs Lakshmi Bharathi (1974), the Supreme Court held that it is a well-established proposition in private international law that unless a foreign court has international jurisdiction, a judgement that’s delivered by that court will not be recognised or enforced in India.

Foreign Judgement When Not Binding

According to the Code of Civil Procedure, a foreign judgement is conclusive as to any matter directly adjudicated on by it between the same parties or between parties who claim to litigate under the same title.

However, there are some situations when a foreign judgement is not conclusive in India, and these situations are:

1. Foreign Judgement Not by a Competent Court

It is a fundamental principle of law that a judgement or order passed by a court with no jurisdiction is null and void. Thus, for a foreign court’s decision to be binding on the parties in India, it must be rendered by a court of competent jurisdiction.

2. Foreign Judgement Not on Merits

A foreign judgement on the merits of the case must have been rendered for it to serve as res judicata. A judgement is said to be given on merits when, after taking evidence and applying mind to the truth or falsity of the plaintiff’s case, the judge decides the case one way or the other.

3. Foreign Judgement Against International or Indian Law

A decision based on an incorrect understanding of international law or a refusal to recognise Indian law where such law is applicable is not conclusive (which cannot be contradicted). However, the error must be visible on the surface of the proceedings.

4. Foreign Judgement Opposed to Natural Justice

A court’s decision must be obtained after the proper judicial procedure has been followed. The minimum requirements of natural justice must be met, such as the judgement being delivered fairly, without bias, in good faith, and after both parties have been heard. A judgement rendered without giving the defendant notice of the suit or allowing him a reasonable opportunity to present his case is contrary to natural justice.

5. Foreign Judgement Obtained by Fraud

A well-established principle of private international law is that a foreign judgement obtained through fraud will not serve as res judicata. It is a well-known proverb that fraud and justice never coexist.

6. Foreign Judgement Founded on a Breach of Indian Law

If a foreign judgement is based on a violation of any law in force in India, that foreign judgement would not be enforced in India. Every case heard by an Indian court must be resolved in accordance with the Indian laws.

In Satya vs Teja Singh (1974), the Supreme Court of India held that it is implicit (implied or understood) that foreign law and foreign judgement would not offend against the Indian public policy.

Presumption as to Foreign Judgement

Section 14 of the Civil Procedure Code states that upon producing any document purporting to be a certified copy of a foreign judgement, the court shall presume that a court of competent jurisdiction pronounced such judgement unless the contrary appears on the record or is proven.

Read Next:
1. What Is International Law and Why People Should Respect It?
2. Trial of Offences Committed Outside India Explained Under CrPC

What Is a Foreign Judgement and When It’s Not Binding in India
Nupur

Second appeals are dealt with in sections 100 to 103 and Order 42 of the Civil Procedure Code, 1908.

Section 100 of the Civil Procedure Code (CPC) allows for the filing of second appeals in the High Court if the High Court determines that the case involves a substantial question of law.

The 1976 Amendment Act amended section 100 of the Civil Procedure Code. Such appeal also lies against an ex-parte decree passed by the appellate court.

When the High Court is satisfied that the case involves a substantial question of law, it may hear the appeal on the formulated question. The question must be stated in the memorandum of appeal.

Must See: Civil Appeal or First Appeal as Per the Civil Procedure Code

Substantial Question of Law

The phrase “substantial question of law” has not been defined in the Civil Procedure Code. No universally applicable rule can be formulated to determine when a substantial question of law has arisen.

The English meaning of the word substantial is “of considerable importance.”

The Supreme Court stated in Chunilal V Mehta and Sons Ltd vs Century Spinning. & Mfg. Co. Ltd (1962) that the proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties.

At the same time, it should be noted that to invoke the jurisdiction of the High Court under section 100 of CPC, the substantial question of law does not have to be of general importance.

In Raghunath Prasad Singh vs the Deputy Commissioner of Pratapgarh (1929), the court stated that a substantial question of law means a substantial question of law as between the parties in the case at hand.

The court observed in Mahant Har Kishan Das vs Satgur Prasad (1951) that a question of law is substantial as between the parties if the decision turns one way or the other on the particular view of the law. If it does not affect the decision, it cannot be said to be substantial as between the parties.

Hearing of Appeal

The Code (section 100(5)) expressly states that the appeal shall be heard solely based on the question formulated.

Bar on Second Appeal

Section 101 of the Civil Procedure Code states that a second appeal may be filed only on the grounds specified in the Code. Section 102 of the Civil Procedure Code states that no second appeal is permitted in any suit where the subject matter of the original suit for money recovery does not exceed Rs 25000.

Limitation for Second Appeal

A second appeal may be filed with a High Court within 90 days of the date of the decree under appeal. (Article 116 of Limitation Act, 1963)

Procedure at Hearing

The provisions governing the first appeal apply to the second appeal as well.

Power of the High Court to Decide the Issue of Fact

Though no second appeal lies on a question of fact, if such appeal is already before the High Court and the evidence on record is sufficient, it may decide any issue of fact necessary for the disposal of the appeal if such issue:

• has not been determined either by the trial court or by the appellate court or both,
• has been incorrectly determined by such court or courts because of its/their decisions on the substantial question of law.

Read Next:
1. Significance of Second Appeal Under Civil Procedure Code
2. Criminal Appeal and Its Kind Under CrPC
3. 31 Important Case Nomenclatures Used in Indian Courts

What Are Second Appeals Under Civil Law
Nupur

If a person feels aggrieved by a court’s decree or order, he may file an appeal in a higher court if an appeal is available against that decree or order.

Sections 96 to 112 and Orders 41 to 45 of the Civil Procedure Code, 1908 contain provisions relating to appeals.

• Sections 96 to 99A, 107, and Orders 41 deal with first appeal.
• Second appeal is dealt with under sections 100 to 103, 107, and 108, as well as Order 42.
• Appeals from Orders are covered by sections 104 to 108 and Order 43.
• Appeal by an indigent person is given under Order 44.
• Appeal to Supreme Court is given under sections 109 and 112 and Order 45.

This CPC law note tells you about first appeal (civil appeal) as per the Civil Procedure Code, 1908, with requirements, procedure, and more.

Must See: What Are Second Appeals Under Civil Law

Appeal From Original Decree

A first appeal can be filed against a decree issued by a court with original jurisdiction.

Section 96 of the Civil Procedure Code (CPC) establishes the right to appeal from any decree issued by any court with original jurisdiction.

An ex-parte decree can be appealed against under section 96(2) of CPC.

Section 96(3) of the Civil Procedure Code is based on the principle of estoppel and bars an appeal against a consent decree.

Section 96(4) of the Civil Procedure Code bars appeal in petty cases.

In Zair Husain vs Khurshed Jan ILR 1906 28 All 545, the High Court of Allahabad stated that a litigant has independently of any statute, a right to institute any suit of a civil nature in one court or another. The court also stated that the right of appeal is not to be assumed in any matter which comes before the court. Such right must be given by statute or by some authority equivalent to a statute.

Requirements for Presentation of an Appeal

The requirements for the presentation of an appeal as per the Civil Procedure Code are as follows:

• It must be in the form of a memorandum.
• It must be signed by the appellant or his pleader.
• A certified copy of the judgement must accompany the memorandum.

Presentation of Appeal

When an appeal is presented, the court must endorse it and record it in the register of appeals.

Stay of Proceedings

The Civil Procedure Code, Order 41 Rule 5, provides for a stay of execution of a decree or order. Following the filing of an appeal, the appellate court may order a stay of proceedings or execution of the decree. However, simply filing an appeal does not suspend the operation of the decree. If sufficient grounds are established, a stay of execution may be granted.

Summary Dismissal of an Appeal

Order 41 Rule 11 of the Civil Procedure Code embodies the general rule that whenever an appeal is filed, the appellate court has the authority to dismiss the appeal summarily if, after hearing the appellant or his pleader, there appears to be no substance in it.

Procedure at the Hearing of an Appeal

The appellant has a right to begin. If the court finds that the appeal lacks substance after hearing the appellant, it may dismiss the appeal without calling the respondent to reply.

If the appellate court does not dismiss the appeal, the respondent will be heard, and the appellant will be given the opportunity to reply.

If the appellant does not respond when the appeal is called for hearing, the appeal may be dismissed in default.

When in a hearing of the appeal, neither the appellant appears nor the respondent, then the appeal is dismissed ex-parte.

Cross Objection

Order 41 Rule 22 of the Civil Procedure Code contains a special provision that allows a respondent who has not filed an appeal against the decree to object to it by filing a cross objection in the opposite party’s appeal.

Powers of an Appellate Court

The appellate court has the following powers:

• Power to decide the case finally.
• Power to remand.
• Power to frame issues and refer them for trial.
• Power to take additional evidence.
• Power to modify the decree.

Read Next:
1. Criminal Appeal and Its Kind Under CrPC
2. Delay in Civil Litigation – Dangers, Causes, and Suggestions

Civil Appeal as Per the Civil Procedure Code
Nupur

To follow the principle of natural justice, when a plaintiff files a lawsuit, the defendant must be notified that a lawsuit has been filed against him and that he must appear in court to defend himself.

The word “summons” has not been defined in the Civil Procedure Code. The intimation sent to the defendant by the court is known as a summons. Order 5 and sections 27 to 29 of the Civil Procedure Code deal with summons under civil litigation.

Related: Summons Under CrPC

Object of Issuing Summons

The object of issuing summons is to uphold the idea of natural justice and provide the defendant with the opportunity to say what he has to say against the prayer made by the plaintiff.

Essentials of Summons

According to Rule 1 and Rule 2 of Order 5 of the Civil Procedure Code, every summons shall be signed by the judge or the officer appointed by the court and shall bear the seal of the court. A plaint must accompany every summons.

Contents of Summons

According to Rule 5 of Order 5 of the Civil Procedure Code, the summons must state whether the date specified is for the settlement of issues only or for the final disposition of the suit. The summons should also include an order requiring the defendant to produce any documents or copies of documents in his possession or control that he intends to rely on in support of his case.

Service of Summons

The Civil Procedure Code specifies five methods for serving a summons on a defendant. They are:

Let us learn more about these methods of serving summons.

1. Personal or Direct Service

The summons must be served on the defendant in person or by an authorised representative wherever possible. If the defendant is absent from his residence at the time of service of summons, the summons may be served on any adult member or female member of the defendant’s family. A servant cannot be said to be a family member.

Where there are two or more defendants, the summons should be served on each defendant.

The service of the summons should be made by delivering a copy of the summons. After that, the serving officer must make an endorsement on the original summons regarding the delivery of the summons.

2. Service by Court

When a defendant is residing within the court’s jurisdiction, the summons shall be served through the court officer or any approved courier service. Where the defendant is residing outside the court’s jurisdiction, the summons will be served through an officer of the court within whose jurisdiction such defendant resides.

3. Service by Plaintiff

In addition to the service of summons by the court, the court may allow the plaintiff to serve the summons.

4. Substituted Service

Substituted service can be done in the following circumstances:

• If the defendant or his agent refuses to sign the acknowledgement, or if the serving officer is unable to locate the defendant after due diligence and there appears to be no chance of finding him, the service of summons can be done by fixing a copy of the summons on the outer door or some conspicuous (noticeable) part of the house in which the defendant resides or carries on business or personally works for gain.
• Where the court is satisfied that the defendant is avoiding service of summons or the summons cannot be served on the defendant in an ordinary way, the service may be achieved either by affixing a copy of the summons in the conspicuous place in the courthouse and also where the defendant last resided, carried on a business, or where he personally worked for gain or in such manner as the court thinks fit.

In Basant Singh vs Roman Catholic Mission (2002), the court stated that one must remember that this is not a regular mode of service. Hence it should not normally be allowed and should only be used as the last resort.

5. Service by Post

When the court receives an acknowledgement purporting to be signed by the defendant or his agent, or when the defendant or his agent refuses to accept delivery of the summons when it is tendered to him, the court issuing the summons shall declare that the summons had been properly served.

Read Next:
1. Trial of Summons Cases Explained – CrPC
2. When and Why Is a Legal Notice Mandatory
3. Differences Between Summon and Warrant

Summons and Its Methods of Service Under Civil Procedure Code
Nupur

The Civil Procedure Code does not define the term “inherent power“. They are the powers granted to the court in addition to those expressly granted by the code to ensure that justice is served and that the court’s powers are not abused. Inherent powers assist the court in unforeseen circumstances, as it is hard to anticipate all possible scenarios that may arise in the litigation.

The Supreme Court observed in Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal (1961) that every court is created to administer justice between the parties and must be seen to have all such powers as necessary to do the right and rectify the wrong in the administration of justice.

Inherent powers are implicit in (always to be found in) the court, which may be exercised by the court to do complete justice between the parties before it.

Section 148 to 153B of the Civil Procedure Code deal with the general powers of the court. Here’s a breakdown:

• Section 148 and 149 provide for grant and enlargement of time.
• Section 151 preserves the inherent power of the court.
• Section 152, 153 and 153A deal with the amendment in judgements, decrees, orders and other proceedings.
• Section 153B declares a place of trial to be an open court.

These sections are discussed below in detail.

Enlargement of Time – Section 148 CPC

According to section 148 of the Civil Procedure Code, when a period is specified or given by the court for the performance of an act, that period might be extended by the court even though the original period has elapsed.

The word ‘may‘ indicates that the power is discretionary, and the court is thus allowed to consider the behaviour of the party who is requesting the extension of time.

The notion of equity is embodied in section 148 of the CPC. Because the parties cannot claim the extension of time as a matter of right, the court may consider all facts and circumstances, including the applicant’s conduct, before exercising the power.

Payment of Court Fees – Section 149 CPC

Section 149 of the Civil Procedure Code authorises the court to allow a party to make up for a deficiency in court fees due on a plaint, memorandum of appeal or other documents even after the term of limitation for bringing such suit, appeal, or other document has expired.

Section 149 of the Civil Procedure Code is a proviso to section 4 of the Court Fees Act, 1870, which states that no document subject to court fees under the Act may be filed or recorded in any court of justice unless the appropriate court fee has been paid.

The power conferred by section 149 of the CPC is discretionary, and the courts should exercise it wisely and in the interests of justice.

Ends of Justice and Prevent Abuse of Power – Section 151 CPC

Section 151 of the Civil Procedure Code preserves the court’s inherent powers to secure the end of justice and prevent the abuse of the process of the court. Under this section, the court can:

• recall its own orders,
• correct mistakes,
• can set aside ex-parte order passed against the party,
• can issue a temporary injunction in cases not covered in the provisions of Order 39 of the Civil Procedure Code,
• can restore the suit and rehear it on merits,
• review its orders, etc.

In Naresh Shridhar Mirajkar vs State of Maharashtra (1966), the court concluded that what would meet the ends of justice would always depend upon the facts and circumstances of each case and the requirement of justice.

The power granted by section 151 of the Civil Procedure Code can be used to prevent abuse of the court’s process, which can be committed by either the court or a party.

There is an abuse of process by the court itself when a court follows a procedure that may result in the miscarriage of justice. A party may be guilty of abuse of process if it obtains the benefits by practising fraud on the court or by instituting vexatious tactics.

Amendment of Judgements, Decrees, Orders and Other Records – Section 152, 153, and 153A CPC

All these sections are individually discussed below.

Section 152 CPC

Section 152 of the Civil Procedure Code provides that clerical or arithmetic errors in judgments, decrees, or orders resulting from any unintentional slip or omission may be corrected by the court at any time, either suo motu or on the application of any of the parties.

The section is based on the maxim Actus Curiae neminem gravabit, which means an act of court shall prejudice no one.

Section 153 CPC

Section 153 of the Civil Procedure Code confers a general power on the court to amend defects or errors in the suit proceedings and make necessary amendments.

Section 153A CPC

The Amendment Act of 1976 added section 153A to the Civil Procedure Code, which states that if the appellate court may dismiss an appeal summarily under Order 41 Rule 11, the court of the first instance may use the power of amendment under section 152 of the Civil Procedure Code.

Limitations of Inherent Power

Even though the inherent powers are fairly broad and residuary in nature, they can only be used if there are no stated provisions in the code. If there is an express provision in the code that applies to a specific issue, the court must follow it.

In Ramkarandas Radhavallabh vs Bhagwandas Dwarkadas (1964), the Supreme Court held that the court must exercise inherent powers in very exceptional circumstances.

Read Next:
1. Inherent Powers of High Court Under CrPC With Important Cases
2. 10 Constitutional Provisions That Guarantee Independence of Supreme Court

Inherent Powers of the Court Under the Civil Procedure Code
Nupur

In general, summons means “to appear and answer before the court.”

The presence of the accused during the trial plays a vital role in concluding a fair trial. The attendance of the accused can be procured either by issuing of summons or by arresting and detaining him or by issuing of proclamation or by attachment of property or bonds and sureties.

The code classifies the criminal case as a summons case and a warrant case. The classification is based on the seriousness of the crime committed.

According to section 2(w) of the Criminal Procedure Code, a summons case means a case relating to an offence and not being a warrant case.

According to section 2(x) CrPC, a warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

However, the code provides discretion to the judicial officer to depart from this general rule if the case demands under section 204 and section 87 of the Criminal Procedure Code.

Under section 204 CrPC, a Magistrate shall issue summons in a summons case, warrant in warrant case or summons if he thinks fit. Section 87 empowers the court to issue a warrant in lieu of or in addition to the summons in certain cases, but the reason will be recorded for such issue.

Related: Summons and Its Methods of Service Under Civil Procedure Code

Meaning of Summons

Summon is a legal document issued by the court directed to a person to appear before a judge or Magistrate. According to section 205(1) CrPC, issuing summons may permit the accused to appear through his pleader.

Essentials of Summons

Summons should be clear and specific. Further, according to section 61 of the Criminal Procedure Code:

1. Summons shall be in writing.
2. Summons shall be served in duplicate.
3. Summons shall be signed by the presiding officer of the court issuing it.
4. Summons shall bear the seal of the court.

Contents of Summons

The summons should contain adequate particulars:

1. The name of the court issuing it.
2. Name and address of the party receiving summons.
3. Offence charged with.
4. Seal of the court.

Service of Summons

According to section 62 CrPC, the summons shall be served by the police, or subject to rules made by the State Government on this behalf, by an officer of the court or other public servant. If practicable, the summons shall be served personally on the person summoned who shall sign a receipt.

Service of Summons to Corporate Bodies and Societies

According to section 63 CrPC, the service of summons to corporate bodies and societies may be affected by:

1. Serving the summons on the secretary, local manager or other principal officers of the corporation concerned.
2. Letter sent by registered post addressed to the Chief Officer of the corporation.

In this section, the corporation includes an incorporated company, other body corporate and societies registered under the Societies Registration Act, 1860.

Service When a Person Summoned Cannot Be Found

According to section 64 CrPC, when the person to be summoned cannot be found, the summons shall be served by leaving the duplicate with an adult male member of the family who resides with the person summoned. Such a member may sign the receipt if required. This is also known as the extended service of summons. It is to be noted a servant is not considered a member of the family under this section.

When Service of Summons Cannot Be Effected

According to section 65 CrPC, when service cannot be effected as provided under sections 62, 63, 64, the duplicate of summons shall be affixed to some conspicuous part of the house in which the person summoned resides. This is also known as substituted service of summons.

Service on Government Servant

According to section 66 CrPC, when the summon is to be served to a government servant, the duplicate of the summons shall be sent to the head of the office in which such person is employed.

Service Outside Local Limits

According to section 67 CrPC, if the summons is to be served outside the local limits, the court shall send such summons in duplicate to the Magistrate within whose local jurisdiction the person summoned resides.

Summons to Witness

According to section 311 CrPC, the court can anytime summon and examine any person as a court witness if his evidence appears essential for the interest of the case. The court also has the authority to recall or re-examine a witness already examined.

Read Next:
1. Differences Between Summon and Warrant
2. What Is the Procedure of Search by a Police Officer (Search With Warrant and Search Without Warrant)

What Is Summons Under the Criminal Procedure Code
Nupur

According to reports citing data from the National Judicial Data Grid and the Supreme Court, currently, 3.9 crore cases are pending in district and subordinate courts, 58.5 lakh cases are pending in various High Courts, and over 69000 cases are pending in the Indian Supreme Court.

This law note deals with delays in civil litigation, the dangers caused by it, the reasons for the delay, and the suggestions to improve this.

Dangers of Delay in Civil Litigation

The delay in resolving the case jeopardises the administration of justice. Time blurs the truth, weakens the witness’s memory, and makes presenting evidence difficult. This results in a loss of public trust in the judicial process, which is a threat to the Rule of Law and, as a result, democracy.

Rising litigation costs can also be attributed to delay, which causes litigants to either abandon the meritorious claim or settle for a lesser or unjust settlement out of court. To avoid anarchy, the aggrieved person must feel fairness, and it is the court that provides the systematic perspective.

Related: Impact of Pending Cases in Indian Courts

Causes of Delay in Civil Litigation

One of the most important requirements of justice is serving it as soon as possible. It’s well known that “Justice delayed is justice denied“.

Delay in litigation, on the other hand, is equally proverbial. And while it may appear self-contradictory, the fact remains that the very provisions of the Civil Procedure Code designed to facilitate the smooth and speedy trial of cases are misused and abused to delay cases indefinitely. As a result, cases pile up, creating a massive backlog in all courts.

The reason for the cause of delays in civil litigation are as follows:

1. Increase in litigation: A quick look at the numbers of cases filed in courts over the years reveals that litigation in the country has been increasing at an alarming rate. The courts are overburdened with cases, and while more courts are being built, the increase in number is insufficient to keep up with the increased number of cases.

2. There is a widespread belief that the government is failing to appoint a sufficient number of judges to keep up with the increasing workload.

3. Another reason for the delay is that the Civil Procedure Code’s provisions are not being properly observed and followed. For example, the process fee is not paid for a long time after the plaint has been filed. When provisions are used correctly, the dispute between the parties can often be narrowed before the parties go to trial.

4. The inefficiency of the governmental machinery has been responsible for or contributed to significant delays in the resolution of cases in which the government is a party.

5. The attitude of some lawyers is also partly to blame for the delay. When a plaintiff obtains interim or ad-interim relief, he is naturally interested in delaying the proceeding so that the stay or injunction can be extended as far as possible. Similarly, if the defendant has no defence, he is naturally interested in extending the trial to postpone the evil day for as long as possible.

Must Read: Restrictions on Advocates to Take Up Other Employment

Amendments in the Civil Procedure Code to Avoid Delay

It may be conceded that by the Amendment Act of 1976, extensive changes were made in the Code of Civil Procedure, 1908, all designed to avoid delay at every level. The necessary amendments were made in the provisions relating to:

• the appearance of parties,
• filing of the written statement,
• for the production of documents,
• issue of summons,
• framing of issues,
• examination of parties,
• summoning and enforcing the attendance of witnesses,
• adjournment, and
• pronouncement of judgement.

The amendments made in 1976 were not sufficient. In pursuance of the recommendations made by the Justice Malimath Committee, extensive changes have been made in 1999 and 2002 in the provisions relating to:

• issuance of summons,
• filing of the written statement,
• amendment of pleadings,
• production of documents,
• examination of witnesses,
• recording of evidence,
• grant of adjournment, and
• a new provision for settlement of dispute outside the court has been introduced.

Suggestions to Reduce Delay in Civil Litigation

The following suggestions are made to reduce delay in civil litigation:

1. There is one provision that, if used effectively by courts, can help to shorten the duration of the litigation. Order 10 Rule 2 of the Civil Procedure Code deals with the oral examination of the parties at the first hearing of the suit. This provision requires the court to examine the parties or resolve the issue as soon as possible. In practice, however, this position is simply ignored, and issues are invariably raised through the parties’ pleadings.

2. Despite the fact that the law commission recommended that a statutory notice under section 80 of the Civil Procedure Code be deleted, it has been retained.

3. On the other hand, certain provisions are not properly applied. Section 99 and section 99A of the Civil Procedure Code, for example, provide that no decree or order issued under section 47 of the Civil Procedure Code may be reversed or modified for error or irregularity that does not affect the merits of the case. Section 35A and section 35B of the Civil Procedure Code deal with compensatory costs for false or vexatious claims and for causing a delay.

4. Sometimes, the government files an appeal even though there is no substance in it or the point is covered by the judgement of the Supreme Court. They should avoid these.

5. In many cases, the court issues a notice to the government or public bodies at the admission stage to settle the case immediately if the point at issue is such that a regular hearing is unnecessary and the matter can be resolved quickly. Unfortunately, the government machinery is so slow to respond that no response to the notice is received.

6. The burden of cases on regular courts can be reduced by exploring the possibilities of setting up other forums where the dispute between the parties can be settled more informally and speedily.

7. Establishing more tribunals to handle disputes arising under various laws can reduce the burden on regular courts.

Read Next:
1. Best Novels for Law Students and Advocates
2. What Is Representative Suit as Per Civil Procedure Code

Delay in Civil Litigation – Dangers, Causes, and Suggestions
Nupur

According to Patterson,

Consideration is something which is of some value in the eyes of the law. It may be some benefit to the plaintiff or some determinant to the defendant.

According to Pollock,

Consideration is the price for which the promise of the other is bought.

Consideration means quid pro quo which means something in return.

Consideration plays a very significant role in the contract. Section 10 of the Indian Contract Act enumerates (mentions) it as one of the essentials to a valid contract. There can be no agreement without consideration. According to section 25 of the Indian Contract Act, an agreement without consideration is void.

According to section 2(d) of the Indian Contract Act, when at the desire of the promisor, if the promisee or any other person:

• • has done or abstained from doing (past),
  • does or abstains from doing (present),
  • promises to do or abstains from doing (future),

such an act or abstinence is known as consideration.

Law Note: What Is Consideration and Its Kinds

Essentials of a Valid Consideration

The essentials of a valid consideration are derived from the definition of ‘consideration’ given under section 2(d) of the Indian Contract Act, 1872. They are:

The six essentials of a valid consideration are explained below in detail.

1. Given at the Desire of the Promisor

The consideration should be given at the desire of the promisor, not that of the third person. The act done at the plaintiff’s desire may be of no significance or personal benefit to the plaintiff – it will be considered a good consideration.

In Durga Prasad vs Baldeo (1880), the defendant spent some money on construction at the desire of the district’s collector. Plaintiff promised to pay commission to the defendant on articles sold by him in the market in which he occupied a shop.

In a suit by the defendant, it was held that there was no consideration for the promise made by the plaintiff and hence no contract as he had not constructed that market at the plaintiff’s instance.

2. Given by the Promisee or Any Other Person

The consideration doesn’t need to be given by the promisee. It may come from any other person also. It is immaterial as to who furnished it.

In Chinnaya vs Ramayya, an old lady gifted her entire property to her daughter under the condition that she would give annuity to her uncle. Annuity means paying someone a fixed sum of money each year, typically for the rest of their life. She agreed to pay annuity but stopped after some time and filed a plea that no consideration was moved by her uncle. The court rejected the plea and held that indirect consideration was already moved by her aunt.

3. Consideration May Be Past, Present or Future

The past, present, and future nature of the consideration can be inferred from the definition of ‘consideration’ as given under section 2(d) of the Indian Contract Act.

A consideration is called past consideration when the act is done before any promise is made. Example: X renders his service to Y, and Y promises to pay a sum of ₹500 for the service after a month. This is past consideration.

When consideration is given simultaneously with the promise is called present consideration. It is also known as executed consideration. Example: Sale of an article in cash.

When a promise is made to do or abstain from doing something in future, it is called future consideration. It is also known as executory consideration. It is a promise for a promise. Example: X agrees to sell Y 10 quintals of wheat at ₹10000 when they will be harvested.

4. It Must Be Real, Certain and Lawful

In a contract where consideration is unreal, uncertain or unlawful, such contract is void.

If X agrees to sell his car to Y at whatever price he wants to pay is an uncertain consideration.

If Y promises to pay ₹10000 to X to beat up Z, it is an illegal consideration.

5. Consideration May Be Positive or Negative

There should be some act or abstinence. Consideration may be positive when the promisee does something at the express wish of the promisor. Consideration may be negative when the promisee is abstained from doing something at the wish of the promisor.

6. It Need Not Be Adequate

Consideration need not necessarily be adequate. The law provides that there should be a consideration for a valid contract. It may or may not be adequate. The adequacy of consideration is for the parties to consider at the time of agreement. A contract cannot be held invalid on the grounds of the inadequacy of consideration. For instance, X decides to sell his wheat produce valued at ₹10000 for ₹2000 to Y. Such agreement will be deemed to be a contract if X has free consent.

Read Next:
1. When Communication of Acceptance is Complete
2. Offer and Invitation to Offer in Indian Contract Act
3. Important Sections of Indian Contract Act, 1872
4. What Are Wagering Agreements Under the Indian Contract Act

6 Essentials of Consideration Under Indian Contract Act, 1872
Nupur

The Supreme Court is the highest court of appeal, the guarantor of fundamental rights, and the guardian of the Indian Constitution. It becomes essential for Supreme Court to maintain its independence to deliver its judgement without fear or favour. To ensure the independence of the Supreme Court, it should be free from encroachments, pressure and interference of the executive or legislature.

In short, it is important for the Indian Supreme Court to maintain its independence. These ten provisions in the Constitution of India ensure the freedom and impartiality of the Supreme Court. Let us have a look.

10 Reasons Why Indian Supreme Court Is Independent

These are the ten reasons why the Indian Supreme Court is free and independent:

1. Mode of Judges Appointment Free From Political Considerations

Judges of the Supreme Court are appointed by the President by warrant under his/her hand and seal after consultation with judges of the Supreme Court and the High Courts. The provision ensures that the judicial appointments are not based on political or practical considerations.

2. Security of Tenure

The Constitution ensures the security of tenure of the Supreme Court judges as the judges can be removed from the office only in the manner provided and on the grounds mentioned in the Constitution by the President. They do not hold office at the President’s pleasure even though they are appointed by the President.

3. Fixed Service Conditions

The salaries, allowances, and pensions of the Supreme Court judges are determined from time to time by the Parliament. They cannot be changed to the disadvantage after the appointment of the judges (except during the financial emergency). Such service conditions cannot be altered during the term of office.

4. Expenses Charged on Consolidated Fund

The salaries, allowances, and pensions of the Supreme Court judges and the staff are charged on the consolidated fund of India. The administrative expenses of the Supreme Court are also charged on the consolidated fund of India.

5. Conduct of Judges Cannot Be Discussed

The conduct of judges cannot be discussed at the Parliament or in the State Legislatures regarding the discharge of their duties. Such conduct can be discussed when the impeachment motion is in action against the judge.

6. Ban on Practice After Retirement

The Supreme Court judges are not allowed to practice in any court or before any authority in the territory of India after retirement. This ensures that such judges do not favour anyone in the hope of future favour. However, they can be appointed to various posts in tribunals and commissions after their retirement, such as NHRC, NGT etc.

7. Power to Punish for Its Contempt

The Supreme Court has the power to punish any person for its contempt under Article 129 of the Constitution. The power is to ensure the authority, dignity and honour of the Supreme Court. The actions and decisions of the Supreme Court cannot be criticised or opposed by anybody.

8. Freedom to Appoint Its Staff

The Chief Justice of India has the power to appoint the officers and servants of the Supreme Court without any interference of the executive.

9. Jurisdiction Cannot Be Curtailed

The Parliament cannot curtail the jurisdiction and the power of the Supreme Court. Rather it can only be extended by the Parliament.

10. Separation From Executive

The Criminal Procedure Code has affected the separation of the judiciary from the executive. Article 50 under the Directive Principles of State Policy provides that the State shall take steps to separate the judiciary from the executive in the State’s public services.

Read Next: About the Supreme Court of India – Collegium, Powers, Judges and More

10 Constitutional Provisions That Guarantee Independence of Supreme Court
Nupur

A representative suit is one that is filed by or against one or more people on behalf of themselves and others who have a vested interest in the outcome of the suit.

Representative suit is based on public policy. It saves time, money, labour and prevents multiplicity of suits. Order 1 Rule 8 of the Civil Procedure Code deals with representative suits.

As a general rule, all persons interested in a suit should be joined as parties to it so that the matter involved therein may be finally adjudicated upon and fresh litigation over the same matter may be avoided. Rule 8 of Order 1 of the Civil Procedure Code (CPC) is an exception to this general rule.

In Diwakar Shrivastava vs the State of Madhya Pradesh (1984), it was stated: “the rule provides that when there are several persons similarly interested in a suit, one or more of them can, with the permission of the court or on the direction from the court sue or be sued on behalf of themselves and others.”

Order 1 Rule 8 of CPC is an enabling provision and does not compel an individual to represent a body of person having the same interest if his action is maintainable without joining the rest in the suit.

Note: The head of the plaint and the contents of the plaint should mention that it is a representative suit.

Essential Elements of Representative Suit

For the application of Order 1 Rule 8 of the Civil Procedure Code following elements must be fulfilled:

1. There Should Be Several Parties

The first condition for a representative suit is several parties. The word “several parties” imply a group of persons and does not mean innumerable persons.

In Hasanali vs Mansoorali (1947), the Privy Council held that a representative suit on behalf of inhabitants of a village regarding village property or on behalf of the members of the sect, caste, the community is maintainable under this rule.

2. They Must Have the Same Interest

Community’s interest is the next essential, and it is the condition precedent for bringing a representative suit. Hence the interest must be common to all, or they must have a common grievance they seek to redress. It is not necessary that the interest must have arisen from the same transaction. The explanation clarifies that the person need not have the same cause of action.

3. Permission or Direction by the Court Is Necessary

The suit does not become a representative suit until the court grants the permission or the directions have been given by the court. The proper course is that the permission of the court must be obtained before the suit is filled.

4. Notice Must Be Given

All interested persons who would be bound by the decree shall be given notice. Notice may be in person or public. In Kumaravelu Chettiar vs T.P. Ramaswami Ayyar (1933), the Privy Council held that the issue of notice is peremptory, and if it is not given, the decree will bind only those parties who are on record.

Addition or Substitution of Parties

Order 1 Rule 8 sub-rule 3 of the Civil Procedure Code provides that any person on whose behalf a suit is filed or defended under sub-rule 1 of the Civil Procedure Code may apply to the court to be added as a party to the suit. Such a person must show that the conduct of the suit is not in proper hands and that his interest will be seriously affected by his prejudice if he is not joined as a party to the suit.

However, sub-rule 5 of Order 1 Rule 8 of the Civil Procedure Code, added by the Amendment Act of 1976, provides that if any person suing in a representative capacity or defending a representative suit fails to proceed with due diligence in the suit or defence, the court may substitute any other person having the same interest in the suit in his place.

Withdrawal or Compromise of Representative Suit

The following provisions are provided regarding withdrawal and compromise of a representative suit in CPC:

• Under sub-rule 4 of Rule 8 Order 1 of the Civil Procedure Code, no part of the claim in a representative suit can be abandoned under sub-rule 1 of Rule 8, Order 1 of the Civil Procedure Code.
• No such suit can be withdrawn under sub-rule 3 of Rule 1 Order 23 of the Civil Procedure Code.
• Under Order 23 Rule 3 of the Civil Procedure Code, no agreement, compromise or satisfaction can be recorded in any such suit.

Unless the court has given notice to all the interested. Such notice will be given at the expense of the plaintiff.

Res Judicata

Explanation VI of section 11 of the Civil Procedure Code deals with the representative suit. It states that where the representative suit has been decided, it will operate as res judicata.

Read Next:
1. Meaning of Res Judicata in Civil Procedure Code
2. What Is Suit of Civil Nature in Civil Procedure Code

What Is Representative Suit as Per Civil Procedure Code
Nupur