State of Jammu-Kashmir - Act
The Code of Civil Procedure, Svt. 1977 (1920 A.D.)
JAMMU & KASHMIR
India
India
The Code of Civil Procedure, Svt. 1977 (1920 A.D.)
Rule THE-CODE-OF-CIVIL-PROCEDURE-SVT-1977-1920-A-D of 1920
- Published on 11 September 1920
- Commenced on 11 September 1920
- [This is the version of this document from 11 September 1920.]
- [Note: The original publication document is not available and this content could not be verified.]
1. Short title, extent and commencement.
- (i) This Act may be cited as Code of Civil Procedure (Act X of Svt. 1977).2. Definitions.
- In this Act, unless there is anything repugnant in the subject or context -3. Subordination of Courts.
- For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes insubordinate to the High Court and District Court.4. Savings.
5. Application of the Code to Revenue Courts.
6. Pecuniary jurisdiction.
- Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.7. Small Cause Courts.
- The following provisions shall not extend to Courts constituted under the Small Cause Courts Act, or to courts exercising the jurisdiction of a Court of Small Causes under that Act, that is to say,-8. Omitted.
Part I
Suits in General Jurisdiction of the Courts and Res Judicata9. Courts to try all civil suits unless barred.
- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.Explanations I. - A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.[Explanation II. -For the purposes of this section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.] [The existing explanation numbered as explanation I and after that explanation II inserted by Act XI of 1983, s.3 (w.e.f. 15-8-1983).]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 the State having jurisdiction to grant the relief claimed.Explanation. - The pendency of a suit in a foreign Court does not preclude the Courts in the State from trying a suit founded on the same cause of action.11. Resjudicata.
- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised , and has been heard and finally decided by such Court.Explanation I. - The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.Explanation II. - For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.Explanation III. - The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation IV. - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation V. - Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.Explanation VI. - Where persons litigate bona fide in respect of a public right or a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons litigating.Explanation VII. - Where a party to a civil suit, sets up or relies on a pedigree, or on the legitimacy or the genuineness or validity of the adoption of any person, including himself and the question of such pedigree, legitimacy or adoption is put directly and substantially in issue, and is, after a full and regular trial, decided against such party, then as regards such question or issue the party's descendants, heirs, executors, administrators or assigns shall in any future litigation be deemed to claim under him.Explanation VIII. - Where a party to a suit claims certain immovable property to be his and the Court decides that it is not his, such decision shall be binding on him and those claiming under him, in any future litigation in which he or they claim, as plaintiff or applicant, or plaintiffs or applicants, the property as against a person or persons in possession or occupation of it.[Explanation IX. - The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.Explanation X. - An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised] [Inserted by Act XI of 1983, s.4(w.e.f. 15-8-1983).].12. Bar to further suit.
- Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.13. When foreign judgment not conclusive.
- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except -14. Presumption as to foreign judgment.
- The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.Place of Suing15. Court in which suits to be instituted.
- Every suit shall be instituted in the Court of the lowest grade competent to try it.16. Suit to be instituted where subject-matter situate.
- Subject to the pecuniary or other limitations prescribed by any law, suits17. Suits for immovable property situate within jurisdiction of different Courts.
- Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate:Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.18. Place of institution of suit where local limits of jurisdiction of Courts are uncertain.
19. Suit for compensation for wrongs to person or movables.
- Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.Illustrations20. Other suits to be instituted where defendants reside or cause of action arises.
- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction21. Objections to jurisdiction.
- [(1) No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.22. Power to transfer suits which may be instituted in more than one Court.
- Where a suit may be instituted in any of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may,at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.23. To what Court application lies.
24. General power of transfer and withdrawal.
25.
OmittedInstitution of Suits26. Institution of suit.
- [(1)] [Renumbered as (1) by Act VI of 2009, dated 20.3.2009.] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.27. Summons to defendants. - Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed [on such day not beyond thirty days from date of the institution of the suit] [ Inserted by Act VI of 2009, dated 20.3.2009.].
[28. Service of summons where defendant resides in another State in India. - Summons or other process issued by a Civil or Revenue Court in the Jammu and Kashmir State may be sent for service in another State in India to such Court and in such manner as may be prescribed by rules in force in that State.29. Service of summons of a Court in India in the Jammu and Kashmir State.
- If a summons or other process is received for service by a Court in the Jammu and Kashmir State from a Court situate in a State in India, such Court shall upon receipt thereof, proceed as if it has been issued by such Court and shall then return the summons or other process to the Court of issue together with the record (if any) of its proceedings with regard thereto] [Sections 28 and 29 inserted by Act No. I of Svt. 2011.].30. Power to order discovery and the like.
- Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-31. Summons to witness.
- The provisions in section 27 shall apply to summonses to give evidence or to produce documents or other material objects.32. Penalty for default.
- The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may -33. Judgment and decree.
- The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.Interest34. Interest.
35. [ Costs. [Substituted by Act No. 41 of 2018, dated 13.12.2018.]
35A. [ Compensatory costs in respect of false or vexatious claims or defences. [Section 35-A inserted by Act No. IV of 1988.]
Part II
ExecutionGeneral[36. Application to orders. - The provisions of this Code relating to the execution of decrees (including provision relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order)] [Substituted by Act No. XI of 1983, section 12(w.e.f. 15-8-1983).].37. Definition of Court which passed a decree.
- The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-38. Court by which decree may be executed.
- A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.39. Transfer of decree.
40. Omitted
41. Result of execution proceedings to be certified.
- The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution or where the former Court fails to execute the same the circumstances attending such failure.42. Powers of Court in executing transferred decree.
- [(1) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.46. Precepts.
47. Questions to be determined by the Court executing decree.
48. Execution barred in certain cases.
49. Transferee.
- Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.50. Legal representatives.
51. Powers of Court to enforce execution.
- Subject to such condition and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-52. Enforcement of decree against legal representative.
53. Liability of ancestral property.
- For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.54. Partition of estate or separation of share.
- Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estate.Arrest and Detention55. Arrest and detention.
56. Prohibition of arrest or detention of women in execution of decree for money.
- Notwithstanding anything in this part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.57. Subsistence allowance.
- [The Government] [Substituted for "His Highness" by Act No. X of 1996.] may fix scales, graduated according to rank, race and nationally, of monthly allowances payable for the subsistence of judgment-debtors.58. Detention and release.
59. Release on ground of illness.
60. Property liable to attachment and sale in execution of decree.
3. Substituted by Act XI of 1983, w.e.f. 15.8.1983.[Explanation I. - The moneys payable in relation to the matters mentioned in clauses (g), (h), (i) and (j) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable.
(1-A) Notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this section shall be void.]4. Substituted by Act VI of 2009, dated 20.3.2009.[(2) Nothing in this section shall be deemed to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.]
61. Partial exemption of agricultural produce.
- 1. Substituted for "His Highness" by Act X of 1996.[The Government] may, by general or special order published in the Government Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to 62. Seizure of property in dwelling-house [the Government] to be necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists, or of any class of agriculturists, be exempted from liability to attachment or sale in execution of a decree.62. Seizure of property in dwelling-house.
63. Property attached in execution of decrees of several Courts.
1. Inserted by Act No. XI of 1983, section 20 (w.e.f. 15-8-1983).[Explanation. - For the purpose of sub-section (2), "Proceeding taken by a Court", does not include an order allowing, to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him).
64. Private alienation of property after attachment to be void.
- Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.Explanation. - For the purpose of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.Sale65. Purchaser's title.
- Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.66. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff.
67. Power of Government to make rules as to sales of land in execution of decrees for payment of money.
68. Power to prescribe rules for transferring to Collector execution of certain decrees.
- 3. Substituted for "His Highness" by Act X of 1996.[The Government] may declare, by notification in the Government Gazette, that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in, immovable property, shall be transferred to the Collector. From the day on which this Act comes into force, no decree shall be transferred to the Collector unless and until 4. Substituted for "His Highness" by Act X of 1996.[the Government] has made a declaration as required by this section.69. Provisions of Third Schedule to apply.
- The provisions set forth in the Third Schedule shall apply to all cases in which the execution of a decree has been transferred under the last preceding section.70. Rules of procedure.
71. Collector deemed to be acting judicially.
- In executing a decree transferred to the Collector under section 68 the Collector and his subordinates shall be deemed to be acting judicially.72. Where Court may authorise Collector to stay public sale of land.
73. Proceeds of execution sale to be rate ably distributed among decree-holders.
74. Resistance to execution.
- Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.Part III
Incidental Proceedings Commissions75. Power of Court to issue commission.
- Subject to such conditions and limitations as may be prescribed, the Court may issue a commission76. Commission to another Court.
- [(1) A commission for the examination of a person may be issued to any private person or to any Court in the State or to any Court not being High Court situate in the Indian Union or beyond the limits of the Indian Union but continued by the authority of the Government of India or to a Court situate in any part of the Common Wealth other than the Indian Union or to a Court of any foreign country for the time being in alliance with the Government of India.] [Sub-section (1) of section 76 substituted by A.L.O. Svt. 2008.]77. Letter of request.
- In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place within the State.78. Commission issued by foreign Courts.
- [Subject to such conditions and limitations as may be prescribed,] [Inserted by Act No. VI of 1995.] the provisions as to the execution and return of commissions for the examination of witness shall apply to commissions issued by or at the instance of] [Submitted ibid.] [Renumbered and inserted ibid, section 15, w.e.f. 15-8-1983.]Part IV – Suits in Particular Cases
Suits By or Against [The Government] [Substituted for "State" By Act No. XII Of Svt. 2007.] or Public Officers in their Official Capacity[79. Suits by or against Government. - In a suit by or against the Government the authority to be named as plaintiff or defendant, as the case may be, shall be "the State of Jammu and Kashmir"] [Substituted by Act No. XII of Svt. 2007.].[80. Notice] [Re-numbered and inserted by Act No. XI of 1964.]. - [(1) Save as otherwise provided in sub-section (3), no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been in the case of the Government, delivered to, or left at the office of [Secretary to Government in charge of the concerned Department] [Substituted by Act No. XI of 1983. ] and, in the case of a public officer, delivered to him or left at his office, stating the cause of action the name, description and place of residence of the plaintiff and the relief which he claims; and plaint shall contain a statement that such notice has been so delivered or left.] [Substituted by Act No. XI of 1983, section 8 (w.e.f. 15-8-1983).]81. Exemption from arrest and personal appearance.
- In a suit instituted against a public officer in respect of any act purporting to be done by him in this official capacity82. Execution of decree.
- [(1) Where, in suit by or against the Government or by or against a public officer in respect of any act purporting to be done by him in his official capacity, a decree is passed against the Government, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section (2)] [Substituted by Act No. XI of 1983, section 24, w.e.f. 15.8.1983. ].83. When aliens may sue.
- No alien enemy of [Government of India] [Substituted for "His Majesty the King Emperor" by A.L.O. Svt. 2008.] and no subject of any enemy country shall sue in any of the State Courts, except with the permission of the Government.Explanation. - Every person residing in a country, the Government of which is at war with [India] [Substituted for "the United Kingdom of Great Britain and Ireland" by A.L.O. Svt. 2008.], and carrying on business in that country without a licence in that behalf under the hand [***] [Omitted by ALO Svt. 2008.] of a Secretary to the Government of India, shall, for the purpose of this section be deemed to be an alien enemy.84. When foreign States may sue.
- The British Government and its subjects and a Foreign State in alliance with [Government of India] [Substituted by A.L.O. Svt. 2008.] and its subjects shall be entitled to sue in a State Court.85. Persons specially appointed by Government to prosecute or defend for Princes or Chiefs.
86. Suits against Princes, Chiefs, ambassadors and envoys.
87. Style of Princes and Chiefs as parties to suits.
- A Sovereign Prince or Ruling Chief, may sue, and shall be sued, in the name of his State:Provided that in giving the consent referred to in the foregoing section [the Government] [Substituted by Act No. X of Svt. 2010.] may direct that any such Prince or Chief shall be sued in the name of an agent or in any other name.Interpleader88. Where interpleader suit may be instituted.
- Where two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.Part V
Special Proceedings Arbitration89. [ Settlement of disputes outside the Court. [Inserted by Act VI of 2009, dated 20.3.2009 as it was earlier repealed by Act No. II of 2002.]
90. Power to State case for opinion of Court.
- Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.[Public Nuisances and other Wrongful Acts affecting the Public] [Substituted by Act No. XI of 1983, section 25, (w.e.f. 15-08-1983).]91. Public nuisance.
- [(1) In the case of a Public nuisance or other wrongful act affecting or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted-(a)by the Advocate general or;(b)with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance of other wrongful act.]92. Public charities.
93.
OmittedPart VI
Supplemental Proceedings94. Supplemental proceedings.
- In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.
Part VII
AppealsAppeals From Original Decrees96. Appeals from original decree.
97. Appeal from final decree where no appeal from preliminary decree.
- Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.[98. Decisions where appeal heard by two or more Judges] [Section 98 re-inserted by Act No. XXXIX of Svt. 2011.]. - (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such judges.99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.
- No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or [non-joinder] [Inserted by Act No. XI of 1983, section 30.] of parties or causes of action or any error, defect or irregularities in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:[Provided that nothing in this section shall apply to non-joinder of a necessary party] [Added ibid.].[99-A. No order under section 47 to be reversed or modified unless decision of the case is pre-judicially affected. - Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has pre-judicially affected the decision of the case.] [Section 99-A, inserted by Act No. XI of 1983, section 31 w.e.f. 15-8-1983.][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 case involves a substantial question of law.101. Second appeal on no other grounds.
- No second appeal shall lie except on the grounds mentioned in section 100.[102. No second appeal in certain cases. - No second appeal shall lie from any decree, when the subject matter of the original suit is recovery of money not exceeding twenty-five thousand rupees.] [Substituted by Act VI of 2009, dated 20.3.2009.][103. Power of High Court to determine issue of fact. - In any second appeal, the High Court, may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,104. Orders from which appeal lies.
105. Other orders.
106. What Courts to hear appeals.
- Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.General Provisions Relating to Appeals107. Powers of Appellate Court.
108. Procedure in appeals from appellate decrees and orders.
- The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals110. Value of subject-matter.
- In each of the cases mentioned in clauses (a) and (b) of section 109, the amount or value of the subject-matter of the suit in the Court of first instance must be twenty thousand rupees or upwards, and the amount or value of the subject-matter in dispute on appeal to the Supreme Court must be the same sum or upwards,or the judgment, decree or final order must involve, directly or indirectly, some claim or question to or respecting property of like amount or value,and where the judgment, decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law.111. Savings.
- Nothing contained in this Code shall be deemed-112. [ [Omitted by Act X of Svt. 2010.]
-Omitted] [Sections 109,110 and 111 re-inserted by Act XXV of Svt. 2011.]Part VIII
Reference, Review and Revision113. Reference to High Court.
- Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:[Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance Regulation or provision is invalid or in-operative, but has not been so declared by the High Court or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor and refer the same for the opinion of the High Court.] [Proviso to section 113 added by Act XII of 1968.]114. Review.
- Subject as aforesaid, any person considering himself aggrieved.-115. Revision.
- [(1)] [Section 115 renumbered as sub-section (1) by Act XI of 1983, Section 38 (w.e.f. 15-08-1983).] The High Court may call for the record of any case which has been decided by any Court subordinate to the High Court and in which no appeal lies thereto, and if such subordinate Court appears.(a)to have exercised a jurisdiction not vested in it by law, or(b)to have failed to exercise a jurisdiction so vested, or(c)to have acted in the exercise of its jurisdiction illegally or with material irregularity, or(d)[ to have caused failure of justice] [Substituted by Notification No. 1 dated 30th Baisakh, 1978.],the High Court may make such order in the case as it thinks fit:[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.] [Substituted by Act VI of 2009, dated 20.3.2009.]116. Part to apply only to the High Court.
- This part applies only to the High Court.117. Application of Code to High Court.
- Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to the High Court.118. Execution of decree before ascertainment of costs.
- Where the High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs;and, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.119. to 120.
[***] [Note Sections 119 and 120 originally missing in Governent of J.K. Laws 1989 Edition.][Part X] [Part X inserted by Notification 3-L/1985 dated 8th Bhadon, 1985. ]Rules121. Effect of rules in First Schedule.
- The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this part.122. [ Power of High Court to make rules. [Section 122 substituted by Notification 3-L/1985 dated 8th Bhadon, 1985.]
- The High Court may, from time to time after previous publication, make rules regulating its own procedure and the procedure of the Civil Courts subject to its superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule].123.
Omitted124.
Omitted125.
Omitted126. [ Rules subject to sanction. [Inserted by Notification 3-L/1985 dared 8th Bhadon, 1985.]
- Rules made under the foregoing provisions shall be subject to the previous approval of the [the Governor.]127. Publication of rules.
- Rules so made and approved shall be published is the Jammu and Kashmir Government Gazette, and shall from the date of publication or from such other date as may be specified have the same force and effect, as if they had been contained in the First Schedule.128. Matters for which rules may provide.
129. Power of High Court to make rules as to its original civil jurisdiction.
- Notwithstanding anything in this Code, the High Court may make such rules not inconsistent with the [order of his Highness No. 1, dated 26th March, 1928] [This order is repealed and replaced by part IV of 1996 and again Act XIV of 1996 stands repealed by the Constitution of J&K.], to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.130.
-Omitted131. Publication of rules.
- Rules made in accordance with section 129 shall be published in the Jammu and Kashmir Government Gazette and shall from the date of publication or from such other date as may be specified have the force of law.Part XI
Miscellaneous132. Exemption of certain women from personal appearance.
133. Exemption of other persons.
134. Arrest other than in execution of decree.
- The provisions of section 55, 57 and 59 shall apply, so far as may be, to all persons arrested under this Code.135. Exemption from arrest under civil process.
136. Procedure where person to be arrested or property to be attached is outside district.
137. Language of subordinate Courts.
- The language which, on the commencement of this Code, is the language of any Court subordinate to the High Court shall continue to be the language of such subordinate Court until [the Government] [Substituted for "His Highness" by Act X of 1996.] otherwise direct.138. Power of High Court to require evidence to be recorded in English.
139. Oath or affidavit by whom to be administered.
- In the case of any affidavit under this Code140.
-Omitted141. Miscellaneous proceedings.
- The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.[Explanation. - In this section, the expression "Proceedings" includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.] [Inserted by Act No. XI of 1983, w.e.f. 15-8-1983.]142. Orders and notice to be in writing.
- All orders and notices served on or given to any person under the provisions of this Code shall be in writing.143. Postage.
- Postage, where chargeable on a notice, summons or letter issued under this Code and forwarded by post, and the fee for registering the same shall be paid within a time to be fixed before the communication is made:Provided that [the Government] [Substituted for "His Highness" by Act X of 1996.] may remit such postage or fee, or both or may prescribe a scale of Court-fees to be levied in lieu thereof.144. Application for restitution.
145. Enforcement of liability of surety.
- Where any person has [furnished security or given a guarantee -] [Substituted by Act No. XI of 1983, w.e.f. 15-8-1983.]146. Proceeding by or against representatives.
- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.147. Consent or agreement by persons under disability.
- In all suits to which any person under disability is a party, any consent or agreement, as to any proceeding shall, if given or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such person were under no disability and had given such consent or made such agreement.148. Enlargement of time.
- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may in its discretion, from time to time enlarge such period [not exceeding thirty days in total] [Inserted by Act VI of 2009, dated 20.3.2009.], even though the period originally fixed or granted may have expired.[148-A. Right to lodge a caveat. - Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.149. Power to make up deficiency of Court-fees.
- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its direction, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.150. Transfer of business.
- Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.151. Saving of inherent powers of Court.
- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.152. Amendment of judgments, decrees or orders.
- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.153. General power to amend.
- The Court may at any time, and on such terms as to costs or otherwise as it may think fit amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.153A. [ Power to amend decree or order where appeal is summarily dismissed. [Sections 153-A and 1538 Inserted by Act X1 of 1983, Section 45 w.e.f. 15-08-1983.]
- Where an appellate Court dismisses an appeal under rule 11 of Order XLI, the power of the Court to amend, under section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.153B. Place of trial to be deemed to be open Court.
- The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them:Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court].154. Saving of present right of appeal.
- Nothing in this Code shall effect any present right of appeal which shall have accrued to any party at its commencement.155. to 156.
- Omitted157. Continuance of orders under certain enactments.
- Notifications published, declarations and rules made, place appointed, agreements filed, scales prescribed, forms framed, appointment made and powers conferred under any enactment relating to matters dealt with this Code shall, so far as they are consistent with this Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under this Code and by the authority empowered thereby in such behalf.158. Reference to certain enactment relating to matters dealt with in this Code.
- In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter such reference shall, so far as may be practicable, be taken to be made to this code or to its corresponding Part, order, sanction or rule.The First ScheduleOrder I (R, 1-13)Parties to Suits1. [Who may be joined as plaintiffs. [Substituted by Act XI of 1983, section 46, w.e.f. 15-8-1983.] - All persons may be joined in one suit as plaintiffs where-
2. Power of Court to order separate trials. - Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.
[3. Who may be joined as defendants. - All persons may be joined in one suit as defendants where4. Court may give judgment for or against one or more of joint parties. - Judgment may be given without any amendment-
5. Defendant need not be interested in all the relief claimed. - It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.
6. Joinder of parties liable on same contract. - The plaintiff may at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange, hundis and promissory notes.
7. When plaintiff in doubt from whom redress is to be sought. - Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.
[8. One person may sue or defend on behalf of all in same interest. - (1) Where there are numerous persons having the same interest in one suit,(a)one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;(b)the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of all persons so interested;9. Mis-joinder and non-joinder. - No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
[Provided that nothing in this rule shall apply to non joinder of a necessary party.] [Inserted by Act XI of 1983, Section 46 w.e.f. 15-08-1983.].10. Suit in name of wrong plaintiff. - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
11. Conduct of suit. - The Court may give the conduct of [a suit] [Substituted by Act] to such person as it deems proper.
12. Appearance of one of several plaintiffs or defendants for others. - (1) Where there are more plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any proceedings; and in like manner, where there are more defendants than one, any one, or more of them may be authorised by any other of them to appear, plead or act for such other in any proceeding.
13. Objections to non-joinder or misjoinder. - All objections on the ground of non-joinder or misjoinder of parties 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.
Order II(R, 1-7).Frame of Suit1. Frame of suit. - 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.
2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
Relinquishment of part of claim. - (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.Omission to sue for one of several reliefs. - (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 the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.Explanation. - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.IllustrationA lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.3. Joinder of causes of action. - (1) 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 or the same defendants jointly may unite such causes of action in the same suit.
4. Only certain claims to be joined for recovery of immovable property. - No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except-
5. Claims by or against executor, administrator or heir. - No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir, or are such as he was entitled to or liable for, jointly with the deceased person whom he represents.
[6. Power of Court to order separate trials. - Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice.] [Substituted by Act XI of Act XI of 1983, S. 47 w.e.f. 15-08-1983.]7. Objections as to misjoinder. - 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 objections has subsequently arisen, and any such objections not so taken shall be deemed to have been waived.
Order III (R,1-6).Recognised Agents and Pleaders1. Appearances, etc., may be in person, by recognized agent or by pleader. - Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader duly appointed to act on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person.2. Recognised agents. - The recognized agents of parties by whom such appearances, applications and acts may be made or done are-
3. Service of process on recognized agent. - (1) Processes served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person, unless the Court otherwise directs.
4. Appointment of pleader. - (1) The appointment of a pleader to make or do any appearance, application or act for any person shall be in writing, and shall be signed by such person or by his recognized agent or by some other person duly authorised by power-of-attorney to act in this behalf.
5. Service of process on pleader. - [Any process served on the pleader who has been duly appointed to act in Court for any party] [Substituted by Act XI of 1983, Section 48 w.e.f. 15-08-1983.] or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.
6. Agent to accept service. - (1) Besides the recognised agents described in rule 2 any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process.
Appointment to be in writing and to be filed in Court. - (2) Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.1. Suit to be commenced by plaint. - (1) Every suit shall be instituted by presenting a 3. Substituted for "plaint to the Court" by Act VI of 2009, dated 20.3.2009.[plaint in duplicate to the Court] or such officer as it appoints in this behalf.
2. Register of suits. - The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.
Order V (R,1-30).Issue and Service of Summons Issue of Summons1. Summons. - [(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant of the suit as may be specified therein:
Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiffs claim:[Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.] [Substituted by Act VI of 2009, dated 20.3.2009.]] [Substituted by Act XI of 1983, Section 48 w.e.f. 15-08-1983.]3. Court may order defendant or plaintiff to appear in person-(1) Where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified.
4. No party to be ordered to appear in person unless resident within certain limits. - No party shall be ordered to appear in person unless he resides
5. Summons to be either to settle issue or for final disposal. - The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly:
Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.6. Fixing day for appearance of defendant. - The day [under sub-rule (1) of rule 1] [Substituted for "for the appearance of the defendant" by Act VI of 2009, dated 20.3.2009.] shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day.
7. Summons to order defendant to produce documents relied on by him. - The summons to appear and answer shall order the defendant to produce [all documents or copies thereof specified in rule lA of Order VIII] [Substituted for "all documents" by Act VI of 2009, dated 20.3.2009.] in his possession or power upon which he intends to rely in support of his case.
8. On issue of summons for final disposal defendant to be directed to produce his witnesses. - Where the summons is for the final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case.
Service of Summons[9. Delivery of summons by court. - (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within the jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinate or to such courier services as are approved by the Court.9A. Summons given to the plaintiff for service. - (1) The Court may, in addition to the service of summons under rule 9, on the application of the plaintiff for the issue of a summons for the appearance of the defendant permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service.
10. Mode of service. - Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court:
[Provided that in any case, if the plaintiff so wishes or the court so desires, the Court may serve the summons in the first instance by registered post (acknowledgement due) instead of the mode of service laid down in this rule.] [Added by Act XXVI of 1978,Section 2.]11. Service on several defendants. - Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.
12. Service to be on defendant in person when practicable or on his agent. - Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.
14. Service on agent in charge in suits for immovable property. - Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.
[15. Where service may be on an adult member of defendant's family. - Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.Explanation. - A servant is not a member of the family within the meaning of this rule] [Substituted by Act X1 of 1983, Section 49 w.e.f. 15-08-1983.].16. Person served to sign acknowledgement. - Where the serving officer delivers or tenders a copy of summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.
17. Procedure when defendant refuses to accept service, or cannot be found. - Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, [who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] [Inserted by Act XI of 1983, section 49, w.e.f. 15-8-1983.] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
18. Endorsement of time and manner of service. - The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time and the manner in which the summons was served, and the name and address of the person, (if any) identifying the person served and witnessing the delivery or tender of the summons.
19. Examination of serving officer. - Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.
[***] [Rule 19A omitted by Act VI of 2009, dated 20.3.2009.]20. Substituted service. - (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
[1-A. Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain] [Inserted by Act XI of 1983, Section 49 w.e.f. 15-08-1983.].21. Service of summons where defendant resides within jurisdiction of another Court. - A summons may be sent by the Court by which it is issued either by one of its officers [or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court] [Substituted for "or by post" by Act VI of 2009 dated 20.3.2009.] to any Court (not being the High Court) having jurisdiction in the place where the defendant resides.
22. Omitted.
23. Duty of Court to which summons is sent. - The Court to which a summons is sent under rule 21 shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of its proceedings with regards thereto.
24. Service on defendant in prison. - Where the defendant is confined in a prison the summons shall be delivered or sent [by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court] [Substituted for "for post" by Act VI of 2009, dated 20.3.2009.] to the officer-in-charge of the prison for service on the defendant.
25. Service where defendant resides out of the State and has no agent. - Where the defendant resides out of the State and has no agent in the State empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him [by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court] [Substituted for "for post" by Act VI of 2009, dated 20.3.2009.], if there is postal communication between such place and the place where the Court is situate.
26. Omitted
27. Service on civil public officer or on servant of railway company or local authority. - Where the defendant is a public officer or is the servant of a railway company or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed together with a copy to be retained by the defendant.
28. Service on soldiers. - Where the defendant is a soldier, the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant.
29. Duty of person to whom summons is delivered or sent for service. - (1) Where a summons is delivered or sent to any person for service under rule 24,rule 27 or rule 28, such person shall be bound to serve it, if possible, and to return it under his signature, with the written acknowledgement of the defendant, and such signature shall be deemed to be evidence of service.
30. Substitution of letter for summons. - (1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a letter signed by the Judge or such officer as he may appoint in this behalf, where the defendant is, in the opinion of the Court, of a rank entitling him to such mark of consideration.
1. Pleading. - "Pleading" shall mean plaint or writing statement.
[2. Pleading to state material facts and not evidence. - (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.3. Forms of pleading. - The forms in Appendix A when applicable and where they are not applicable, forms of the like character, as nearly as may be shall be used for all pleadings.
4. Particulars to be given where necessary. - In all cases in which the party pleading relies on any misrepresentation, fraud breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items, if necessary) shall be stated in the pleading.
[***]6. Condition precedent. - Any condition precedent, the performance or occurrence of which is intended to be contested shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.
7. Departure. - No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.
8. Denial of contract. - Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract.
9. Effect of document to be stated. - Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.
10. Malice, knowledge etc. - Wherever it is material to allege malice, fraudulent intention knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.
11. Notice. - Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, are material.
12. Implied contract, or relation. - Whenever any contract or any relation between any persons is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.
13. Presumptions of law. - Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g. consideration for a bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim).
14. Pleading to be signed. - Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf.
14.
-A. Address for service of notice] [Rule 5 omitted by Act VI of 2009, dated 20.3.2009.]. - (1) Every pleading, when filed by a party, shall be accompanied by a statement in the prescribed form, signed, as provided in rule 14, regarding the address of the party.15. Verification of pleadings. - (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
1. Particulars to be contained in plaint. - The plaint shall contain the following particulars:
2. In money suit. - Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed;
But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant [or for movables in the possession of the defendant, or for debts of which the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall, state approximately the amount or value sued for.] [Substituted by Act XI of 1983, Section 51 w.e.f. 15-08-1983.]2A. [ Where interest is sought in the suit. [Inserted by Act No. 41 of 2018, dated 13.12.2018.] - (1) Where the plaintiff seeks interests, the plaint shall contain a statement to that effect along with the details set out under sub-rules (2) and (3).
3. Where the subject-matter of the suit is immovable property. - Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
4. When plaintiff sues as representative. - Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it.
5. Defendant's interest and liability to be shown. - The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff's demand.
6. Ground of exemption from limitation law. - Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed:
[Provided that the court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint] [Added by Act XI of 1993, Section 51 w.e.f. 15-08-1983.].7. Relief to be specifically stated. - Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not to be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.
8. Relief founded on separate grounds. - Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly.
[9. Procedure of admitting plaint. - Where the Court orders that the summons be served on the defendants in the manner provided in rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons on the defendants.] [Substituted by Act VI of 2009, dated 20.3.2009.]10. Return of plaint. - (1) [Subject to the provisions of rule 10-A, the plaint shall] [Substituted by Act XI of 1983, Section 51 w.e.f. 15-08-1983.] at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
[Explanation. - For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule] [Inserted by Act XI of 1983, Section 51 w.e.f. 15-08-1983.].10.
-B. Power of appellate Court to transfer suit to the proper Court. - (1) Where, on an appeal against an order for the return of plaint, the court hearing the appeal confirms such order, the Court of appeal may, if the plaintiff by an application so desires, while returning of the plaint, direct plaintiff to file the plaint, subject to the provisions of the Limitation Act, Svt. 1995 in the Court in which the suit should have been instituted (whether such Court is within or without the State in which the Court hearing the appeal is situated), and fix a date for the appearance of the parties in the Court in which the plaint is directed to be filed and when the date is so fixed it shall not be necessary for the Court in which the plaint is filed to serve the defendant with the summons for appearance in the suit, unless that Court in which the plaint is filed, for reasons to be recorded, otherwise directs.11. Rejection of plaint. - The plaint shall be rejected in the following cases.
12. Procedure on rejecting plaint. - Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.
13. Where rejection of plaint does not preclude presentation of fresh plaint. - The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
Documents Relied on in Plaint[14. Production of document on which plaintiff sues or relies. - (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.15. Statement in case of documents not in his possession or power. - Where any such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose possession or power it is.
16. Suits on lost negotiable instrument. - Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.
17. Production of shop-book. - (1) Save in so far as is otherwise provided by the Banker's Books Evidence Act, 1977, where the document on which the plaintiff sues in an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies.
Original entry to be marked and returned. - (2) The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and , after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.[***] [Rule 18 omitted by Act VI of 2009, dated 20.3.2009.]Order VIII (R,1-10).Written Statement, Set-Off and Counter Claim[1. Written statement. - The defendant shall within thirty days from the date of service of summons on him present a written statement of his defence:[Provided that where the defendant fails to file the written statement with the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.] [Substituted by Act VI of 2009. dated 20.3.2009.]1.
-A. Duty of defendant to produce document upon which relief is claimed or relied upon by him. - (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.2. New facts must be specially pleaded. - The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment performance, or fact showing illegality.
3. Denial to be specific. - It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
3A. [ Denial by the defendant in suits. [Inserted by Act No. 41 of 2018, dated 13.12.2018.] - (1) Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of this rule.
4. Evasive denial. - Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sums or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
5. Specific denial. - [(1)] [Rule 5 renumbered as sub-rule (1) by Act XI of 1983, Section 52 w.e.f. 15-08-1983.] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.[Provided further, that every allegation of fact in the plaint, if not denied in the manner provided under Rue 3-A of this order, shall be taken to be admitted except as against a person under disability.] [Substituted by Act No. 41 of 2018, dated 13.12.2018.]6. Particulars of set-off to be given in written statement. - (1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.
Effect of set-off - (2) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.6.
-B. Counter-claim to be stated. - Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.6.
-C. Exclusion of counter-claim. - Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded and the Court may, on the hearing of such application make such order as it thinks fit.6.
-D. Effect of discontinuance of suit. - If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.6.
-E. Default of plaintiff to reply to counter-claim. - If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit.6.
-F. Relief to defendant where counter-claim succeeds. - Where in any suit a set-off or counter-claim is established as a defence against the plaintiff's claim, and any balance is found due to the plaintiff or the defendant, as the case maybe, the Court may give judgment to the party entitled to such balance.6.
-G. Rules relating to written statement to apply. - The rules relating to a written statement by defendant shall apply to a written statement filed in answer to a counter-claim].7. Defence or set-off founded on separate grounds. - Where the defendant relies upon several distinct grounds of defence or set-off [or counter-claim] [Inserted by Act No. XI of 1983, w.e.f. 15-8-1983.] founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly.
8. New ground of defence. - Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off, [counterclaim] may be raised by the defendant or plaintiff, as the case may be, in his written statement.
[***] [Inserted by Act No. XI of 1983, w.e.f. 15-8-1983.][9. Subsequent pleadings. - No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.] [4 Rule 9 substituted by Act VI of 2009, dated 20.3.2009.][10. Procedure when party fails to present written statement called for by Court. - Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.] [Rule 10 substituted by Act VI of 2009, dated 20.3.2009.][Provided that no court shall make an order to extend the time provided under Rule 1 of this order for filing of the written statement.] [Added by Act No. 41 of 2018, dated 13.12.2018.]Order IX (R,1-14).Appearance of Parties and Consequence of Non-Appearance1. Parties to appear on day fixed in summons for defendant to appear and answer. - On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.
[2. Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs. - Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed:Provided that no such order shall be made if, notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer.] [Substituted by Act VI of 2009, dated 20.3.2009.]3. Where neither party appears, suit to be dismissed. - Where neither party appears when the suit is called on for hearing, the Court, may make an order that the suit be dismissed.
4. Plaintiff may bring fresh suit or Court may restore suit to file. - Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2] [Substituted by Act No. XI of 1983, w.e.f. 15-8-1983.] or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.
5. Dismissal of suit where plaintiff, after summons returned un-served, fails for [seven days] [Substituted for "three months" by Act VI of 2009, dated 20.3.2009.] to apply for fresh summons. - [(1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned un-served, the plaintiff fails, for a period of [seven days] [Substituted by Act IV of 1988.] from the date of return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that-
(a)he had failed after using his best endeavours to discover the residence of the defendant who has not been served, or(b)such defendant is avoiding service of process, or(c)there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.]6. Procedure when only plaintiff appear. - (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then
When summons duly served. - [(a) if it is proved that the summons was duly served, Court may make an order that the suit be heard ex parte;] [Substituted by Act XI of 1983, Section 53 w.e.f. 15-08-1983.]When summons not duly served. - (b) if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;When summons served but not in due time. - (c) if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. - Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.
8. Procedure where defendant only appears. - Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof in which case the Court shall pass the decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
9. Decree against plaintiff by default bars fresh suit. - (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
10. Procedure in case of non-attendance of one or more of several plaintiffs. - Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.
11. Procedure in case of non-attendance of one or more of several defendants. - Where there are more defendants than one, and one or more of them appear and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.
12. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person. - Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear.
Setting Aside Decrees Ex Parte13. Setting aside decree ex parte against defendant. - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause form appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer plaintiffs claims] [Added by Act XI of 1983, Section 53 w.e.f. 15-08-1983.].[1A. Direction of the court to opt for any one mode of alternative dispute resolution. - After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties.1B. Appearance before the conciliatory forum or authority. - Where a suit is referred under rule 1A, the parties shall appear before such forum or authority for conciliation of the suit.
1C. Appearance before the court consequent to the failure of efforts of conciliation. - Where a suit is referred under rule 1A and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the Court on the date fixed by it.] [[Inserted by Act XI of 1983, Section 53 w.e.f. 15-08-1983.[<i>Explanation.</i> - Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree].</P>
<b>14. No decree to be set aside without notice to opposite party.</b> - No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.</P><p align=center><b><i>Order X (R, 1-4).</b></i></P><p align=center><b>Examination of Parties by the Court.</b></P><b>1. Ascertainment whether allegations in pleadings are admitted or denied.</b> - At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.</P><SPAN class=amd2><A TITLE =]][2. Oral examination of party, or companion of party. - (1) At the first hearing of the suit, the Court,(a)shall, with a view to elucidating matter in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit; and(b)may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied.3. Substance of examination to be written. - The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record .
4. Consequence of refusal or inability of pleader to answer. - (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court [may postpone the hearing of the suit to a day not later than seven days from the date of first hearing] [Substituted for "may postpone the hearing of the suit to a future day" by Act VI of 2009, dated 20.3.2009.] and direct that such party shall appear in person on such day.
1. Disclosure and discovery of documents. - (1) Plaintiff shall file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the plaint, including :
(a)Documents referred and relied on by the plaintiff in the plaint ;(b)Documents relating to any matter in question in the proceedings, in the power, possession, control or custody of the plaintiff, as on the date of filing the plaint, irrespective of whether the same is in support of or adverse to the plaintiffs case ;(c)nothing in this rule shall apply to documents produced by plaintiffs and relevant only -(i)for the cross-examination of the defendant's witnesses, or(ii)in answer to any case set up by the defendant subsequent to the filing of the plaint, or(iii)handed over to a witness merely to refresh his memory.2. Discovery by interrogatories. - (1) In any suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties or anyone or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer :
Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose :Provided further that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.3. Inspection. - (1) All parties shall complete inspection of all documents disclosed within thirty days of the date of filing of the written statement or written statement to the counter-claim, whichever is later. The court may extend this time limit upon application at its discretion, but not beyond thirty days in any event.
4. Admission and denial of documents. - (1) Each party shall submit a statement of admissions or denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the court.
5. Production of documents. - (1) Any party to a proceeding may seek or the court may order, at any time during the pendency of any suit, production by any party or person, of such documents in the possession or power of such party or person, relating to any matter in question in such suit.
6. Electronic Records. - (1) In case of disclosures and inspection of electronic records [as defined in the Information Technology Act, 2000 (Central Act No. 21 of 2000), furnishing of printouts shall be sufficient compliance of the above provisions.
1. Notice of admission of case. - Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
2. Notice to admit documents. - Either party may call upon the other party [to admit, within [seven] [ Substituted by Act No. XI of 1983, w.e.f. 15-8-1983.] days from the date of service of the notice any document] [Substituted by Act XI of 1983, Section 46 w.e.f. 15-8-1983.] saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.
[2-A. Documents to be deemed to be admitted if not denied after service of notice to admit documents. - (1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability:Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.3. Form of notice. - A notice to admit documents shall be in Form No. 9 in Appendix C, with such variations as circumstances may require.
4. Notice to admit facts. - Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs: Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice.
[***] [Second proviso omitted by Act VI of 2009, dated 20.3.2009.]5. Form of admissions. - A notice to admit facts shall be in Form No. 10 in Appendix C, and admissions of facts shall be in Form No. 11 in Appendix C, with such variations as circumstances may require.
[6. 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 any 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.7. Affidavit of signature. - An affidavit of the pleader or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents or facts, shall be sufficient evidence of such admissions, if evidence thereof is required.
8. Notice to produce documents. - Notice to produce documents shall be in Form No. 12 Appendix C, with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.
9. Costs. - If a notice is to admit or produce specific documents which are not necessary, the cost occasioned thereby shall be borne by the party giving such notice.
Order XIII (R, 1-11)Production, Impounding and Return of Documents[1. Original documents to be produced at or before the settlement of issues. - (1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.2. Effect of non-production of documents. - [(1) No documentary evidence in the possession or power of any party which should have been produced but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.
3. Rejection of irrelevant or inadmissible documents. - The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.
4. Endorsements on documents admitted in evidence. - (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:-
(a)the number and title of the suit,(b)the name of the person producing the document,(c)the date on which it was produced, and(d)a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge.5. Endorsements on copies of admitted entries in books, accounts and records. - (1) Save in so far as is otherwise provided by the Banker's Books Evidence Act, 1977, where a document admitted in evidence in the suit is an entry in a letter-book or shop-book or other account in current use, the party on whose behalf the book or account is produced may furnish a copy of the entry.
6. Endorsements on documents rejected as inadmissible in evidence. - Where a document relied on as evidence by either party is considered by the Court to be in-admissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of ride 4, sub-rule (1), together with a statement of its having been rejected, and the endorsement shall be signed or initialled by the Judge.
7. Recording of admitted and return of rejected documents. - (1) Every document which has been admitted in evidence, or a copy thereof where a copy has been substituted for the original under rule 5, shall form part of the record of the suit.
8. Court may order any documents to be impounded. - Notwithstanding anything contained in rule 5 or rule 7 of this Order or in rule 17 of Order WI the Court may, if it sees sufficient cause, direct any document or book produced, before it in any suit to be impounded and kept in the custody of an officer of the Court for such period and subject to such conditions as the Court thinks fit.
9. Return of admitted document. - (1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same.
(a)where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and(b)where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of:[Provided that a document may be returned at any time, earlier than that prescribed by this rule if the person applying thereof-(a)delivers to the proper officer for being substituted for the original,-(i)in the case of a party to the suit, a certified copy, and(ii)in the case of any other person, an ordinary copy which has been examined, compared and certified in the manner mentioned in sub-rule (2) of rule 17 of Order VII, and(b)undertakes to produce the original, if required to do so]:Provided also that no document shall be returned which, by force of the decree, has become wholly void or useless.10. Court may send for papers from its own records or from other Courts. - (1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same.
11. Provisions as to documents applied to material objects. - The provisions herein contained as to document shall, so far as may be, apply to all other material objects producible as evidence.
Order XIV (R, 1-7)Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed Upon1. Framing of issues. - (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.
3. Materials from which issues may be framed. - The Court may frame the issues from all or any of the following materials:
4. Court may examine witnesses or documents before framing issues. - Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it [may adjourn the framing of issues to a day not later than seven days] [ Substituted for "may adjourn the framing of the issues to a future day" by Act VI of 2009, dated 20.3.2009.], and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process.
[5. Powers to amend, and strike out, issues. - (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.6. Questions of fact or law may by agreement be stated in form of issues. - Where the parties to a suit are agreed as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and enter into an agreement in writing that, upon the finding of the Court in the affirmative or the negative of such issue.-
7. Court, if satisfied that agreement was executed in good faith, may pronounce judgment. - Where the Court is satisfied after making such inquiry as it deems proper,
1. Parties not at issue. - Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact the Court may at once pronounce judgment.
2. One of several defendants not at issue. - [(1)] [Rule 2 re-numbered as sub-rule (1) by Act XI of 1983, Section 59 w.e.f. 15-08-1983.] Where there are more defendant than one, and any one of the defendants is not at issue with the plaintiff on any question of law or fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.
3. Parties at issue. - (1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:
Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.4. Failure to produce evidence. - Where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies, the Court may at once pronounce judgment, or may, if it thinks fit after framing and recording issues, adjourn the suit for the production of such evidence as may be necessary for its decision upon such issues.
[Order XV-A [Inserted by Act No. 41 of 2018, dated 13.12.2018.]1. First Case Management Hearing. - The court shall hold the first Case Management Hearing, not later than four week's from the date of filing of affidavit of admission or denial of documents by all parties to the suit.
2. Orders to be passed in a Case Management Hearing. - In a Case Management Hearing, after hearing the parties, and once it finds that there are issues of fact and law which require to be tried, the court may pass an order -
3. Time limit for the completion of a trial. - In fixing dates or setting time limits for the purposes of Rule 2 of this order, the court shall ensure that the arguments are closed not later than six months from the date of the first Case Management Hearing.
4. Recording of oral evidence on a day-to-day basis. - The court shall, as far as possible, ensure that the record of evidence shall be carried on, on a day-to-day basis until the cross examination of all the witnesses is complete.
5. Case Management hearings during trial. - The court may, if necessary, also hold Case Management Hearings anytime during the trial to issue appropriate orders so as to ensure adherence by the parties to the dates fixed under Rule 2 and facilitate speedy disposal of the suit.
6. Powers of the court in a Case Management Hearing. - (1) In any Case Management Hearing held under this order, the court shall have the power to -
(a)prior to the framing of issues, hear and decide any pending application filed by the parties under Order XIII-A ;(b)direct parties to file compilations of documents or pleadings relevant and necessary for framing issues ;(c)extend or shorten the time for compliance with any practice, direction or court order if it finds sufficient reason to do so ;(d)adjourn or bring forward a hearing if it finds sufficient reason to do so ;(e)direct a party to attend the court for the purposes of examination under Rule 2 of Order X ;(f)consolidate proceedings ;(g)strike off the name of any witness or evidence that it deems irrelevant to the issues framed ;(h)direct a separate trial of any issue ;(i)decide the order in which issues are to be tried ;(j)exclude an issue from consideration ;(k)dismiss or give judgment on a claim after a decision on a preliminary issue ;(l)direct that evidence be recorded by a Commission where necessary in accordance with Order XXVI ;(m)reject any affidavit of evidence filed by the parties for containing irrelevant, inadmissible or argumentative material ;(n)strike off any parts of the affidavit of evidence filed by the parties containing irrelevant, inadmissible or argumentative material ;(o)delegate the recording of evidence to such authority appointed by the court for this purpose ;(p)pass any order relating to the monitoring of recording the evidence by a commission or any other authority ;(q)order any party to file land exchange a costs budget ;(r)issue directions or pass any order for the purpose of managing the case and furthering the overriding objective of ensuring the efficient disposal of the suit.7. Adjournment of Case Management Hearing. - (1) The Court shall not adjourn the Case Management Hearing for the sole reason that the advocate appearing on behalf of a party is not present :
Provided that an adjournment of the hearing is sought in advance by moving an application, the court may adjourn the hearing to another date upon the payment of such costs as the court deems fit, by the party moving such application.8. Consequences of non-compliance with orders. - Where any party fails to comply with the order of the court passed in a Case Management Hearing, the court shall have the power to -
(a)condone such non-compliance by payment of costs to the court ;(b)foreclose the non-compliant party's right to file affidavits, conduct cross-examination of witnesses, file written submissions, address oral arguments or make further arguments in the trial, as the case may be, or(c)dismiss the plaint or allow the suit where such non-compliance is willful, repeated and the imposition of costs is not adequate to ensure compliance.]Order XVI (R, 1-21)Summoning and Attendance of Witnesses[1. List of witnesses and summons to witnesses. - (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Courts a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such person for their attendance in Court.2. Expenses of witness to be paid into Court on applying for summons. - (1) The party applying for a summons shall, before the summons is granted and [which shall not be later than seven days from the date of making application under sub-rule (4) of rule 1] [Substituted for "within a period to be fixed" by Act VI of 2009, dated 20.3.2009.], pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day's attendance.
Experts. - (2) In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.Scale of expenses. - (3) [Where the Court is subordinate to the High Court] [Inserted by Notification 3-L/85 published in Government Gazette dated 8th Bhadon, 1985.], regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf.Expenses to be directly paid to witness. - [(4) Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent.] [Inserted by Act No. XI of 1983, w.e.f. 15-8-1983.]3. Tender of expenses to witness. - The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally.
4. Procedure where insufficient sum paid in. - (1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and, in case of default in payment, may order such sum to be levied by attachment and sage of the movable property of the party obtaining the summons, or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.
Expenses of witnesses detained more than one day. - (2) Where it is necessary to detain the person summoned for longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as it sufficient to defray the expenses of his detention for such further period, and, in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.5. Time, place and purpose of attendance to be specified in summons. - Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy.
6. Summons to produce document. - Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produced a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.
7. Power to require persons present in Court to give evidence or produce document. - Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.
[7-A. Summons given to party for service - (1) The Court may, on the application of any party for issue of summons for the attendance of any person, permit such party to effect service of such summons on such person and shall, in such a case, deliver the summons to such party for service.8. Summons how served. - Every summons [under this Order, not being a summons delivered to a party for service under rule 7-A] [Substituted by Act XI of 1983, Section 60 w.e.f. 15-08-1983.] shall be served as nearly as may be in the same manner as a summons to a defendant, and the rules in Order V as to proof or service shall apply in the case of all summons served under this rule.
9. Time for serving summons. - Service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.
10. Procedure where witness fails to comply with summons. - [(1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document fails to attend or to produce the document in compliance with such summons, the Court-
(a)shall, if the certificate of the serving officer has not been so verified, by affidavit, or if service of the summons has been effected by a party or his agent, or(b)may, if the certificate of the serving officer has been so verified,examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non-service of the summons.] [Substituted by Act XI of 1983, Section 60 (w.e.f. 15-8-1983.)]11. If witness appears, attachment may be withdrawn. - Where, at any time after the attachment of his property such person appears and satisfies the Court,
12. Procedure if witness fails to appear. - [(1)] [Rule 12 renumbered as sub-rule (i ) by Act XI of 1)83, section 60 (w.e.f. 15-6-1983).] The Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding five hundred rupees, as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached and sold, or, if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any:
Provided that, if the person whose attendance is required pays into Court the costs and fine aforesaid, the Court shall order the property to be released from attachment.13. Mode of attachment. - The provisions with regard to attachment and sale of property in the execution of a decree shall, so far as they are applicable, be deemed to apply to any attachment and sale under this Order as if the person whose property is so attached were a judgment-debtor.
14. Court may of its own accord summons as witnesses strangers to suit. - Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [to examine any person, including a party to the suit] [Substituted by Act XI of 1983, Section 60 w.e.f. 15-08-1983.] and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document.
15. Duty of person summoned to give evidence or produce document. - Subject as last aforesaid, whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it, or cause it to be produced, at such time and place.
16. When they may depart. - (1) A person so summoned and attending shall, unless the Court otherwise directs, attend at each hearing until the suit has been disposed of.
17. Application of rules 10 to 13. - The provisions of rules 10 to 13 shall, so far as they are applicable, deemed to apply to any person who having attended in compliance with a summons departs, without lawful excuse, in contravention of rule 16.
18. Procedure where witness apprehended cannot give evidence or produce document. - Where any person arrested under a warrant is brought before the Court in custody and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and, on such bail or security being given, may release him, and, in default of his giving such bail or security, may order him to be detained in the civil prison.
19. No witness to be ordered to attend in person unless resident within certain limits. - No one shall be ordered to attend in person to give evidence unless he resides
20. Consequence of refusal of party to give evidence when called on by Court. - Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.
21. Rules as to witnesses to apply to parties summoned. - Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.
[Order XVI-A (R,1-7)] [Order XVI-A inserted by Act XI of 1983, Section 61 (w.e.f. 15.8.1983).]Attendance or Witnesses Confined or Detained in Prisons.1. - In this order-
2. Power to require attendance of prisoners to give evidence. - Where it appears to a Court that the evidence of a person confined or detained in a prison within the State is material in a suit, the Court may make an order requiring the officer in-charge of the prison to produce that person before the Court to give evidence:
Provided that, if the distance from the prison to the Court-house is more than twenty-five kilometres, no such order shall be made unless the Court is satisfied that the examination of such person on commission will not be adequate.3. Expenses to be paid into Court. - (1) Before making any order under rule 2 the Court shall require the party at whose instance or for whose benefit the order is to be issued, to pay into Court such sum of money as appears to the Court to be sufficient to defray the expenses of the execution of the order, including the travelling and other expenses of the escort provided for the witness.
( 2) Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made by the High Court in that behalf.4. Power of Government to exclude certain persons from the operation of rule 2. - (1) The Government may, at any time, having regard to the matters specified in sub-rule (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under rule 2, whether before or after the date of the order made by the Government, shall have effect in respect of such person or class of persons.
5. Officer In-charge of prison to abstain from carrying out order in certain cases. - Where the person in respect of whom an order is made under rule 2
6. Prisoner to be brought to Court in custody. - In any other case, the officer In-charge of the prison shall, upon delivery of the Court's order, cause the person named therein to be taken to the Court so as to be present at the time mentioned in such order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorities him to be taken back to the prison in which he is confined or detained.
7. Power to issue commission for examination of witness in prison. - (1) Where it appears to the Court that the evidence of a person confined or detained in a prison, whether within the State or elsewhere in India, is material in a suit but the attendance of such person cannot be secured under the preceding provisions of this order, the Court may issue a commission for the examination of that person in the prison in which he is confined or detained.
1. Court may grant time and adjourn hearing. - [(1) The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.] [Substituted by Act VI of 2009, dated 20.3.2009.]Costs of adjournment2. Procedure if parties fail to appear an day fixed. - Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
[Explanation. - Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party was present] [Explanation inserted by Act XI of 1983, Section 62 w.e.f. 15-08-1983.].3. Court may proceed notwithstanding either party fails to produce evidence, etc. - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,
1. Right to begin - The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
2. Statement and production of evidence. - (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
3. Evidence where several issues. - Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the later case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply especially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.
[3-A. Party to appear before other witnesses. - Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage] [Substituted by Act XI of 1983, section 63 w.e.f. 15.8.1983.].[4. Recording of evidence. - (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.[(1-A) The affidavits of evidence of all witnesses whose evidence is proposed to be led by a party shall be filed simultaneously by that party at the time directed in the first Case Management Hearing.(1-B) A party shall not lead additional evidence by the affidavit of any witness (including of a witness who has already filed an affidavit) unless sufficient cause is made out in an application for that purpose and an order, giving reasons, permitting such additional affidavit is passed by the court.(1-C) A party shall however have the right to withdraw any of the affidavits so filed at any time prior to commencement of cross-examination of that witness, without any adverse inference being drawn based on such withdrawal :Provided that any other party shall be entitled to tender as evidence and rely upon any admission made in such withdrawn affidavit.] [Substituted by Act VI of 2009, dated 20.03.2009.]6. When deposition to be interpreted - Where the evidence is taken down in a language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given.
7. Evidence under section 138 - Evidence taken down under section 138 shall be in the form prescribed by rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule.
8. Memorandum when evidence not taken down by Judge. - Where the evidence is not taken down in writing by the Judge, [or from his dictation in the open court, or recorded mechanically in his presence,] [Inserted by Act XI of 1983, Section 63 w.e.f. 15-08-1983.] he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.
[9. When evidence may be taken in English. - (1) Where English is not the language of the Court, but all the parties to the suit who appear in person, and the pleaders of such of the parties as appear by pleader, do not object to having such evidence as is given in English, being taken down in English, the Judge may so take it down or cause it to be taken down.10. Any particular question and answer may be taken down. - The Court may, of its own motion or on the application of any party or his pleader, take down any particular question and answer, or any objection to any question, if there appears to be any special reason for so doing.
11. Question subjected to and allowed by Court. - Where any question put to a witness is objected to by a party or his pleader, and the Court allows the same to be put, the Judge shall take down the question, the answer, the objection and the name of the person making it, together with the decision of the Court thereon.
12. Remarks on demeanour of witnesses. - The Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.
[13. Memorandum of evidence in un-appealable cases. - In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the type-writer, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record] [Substituted by Act XI of 1983, Section 63 w.e.f. 15-08-1983.].14. [ - Omitted] [Rule 14 Omitted by Act XI of 1983, Section 63 w.e.f. 15-08-1983.]
15. Power to deal with evidence taken before another Judge. - (1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left.
16. Power to examine witness immediately. - (1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided.
17. Court may recall and examine witness. - The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.
[***] [ Rule 17A omitted by Act VI of 2009, dated 20.3.2009.]18. Power of Court to inspect. - The Court may at any stage of a suit inspect any property or thing concerning which any question may arise [and where the Court inspects any property or thing it shall as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit] [Inserted by Act XI of 1983, Section 63 w.e.f. 15-08-1983.].
[19. Power to get statement recorded on commission. - Notwithstanding anything contained in these rules, the Court may, instead of examining witnesses in open Court, direct their statements to be recorded on commission under rule 4A of Order XXVI.] [Inserted by Act VI of 2009.]Order XIX (R,1-3)Affidavits1. Power to order any point to be proved by affidavit. - Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.2. Power to order attendance of deponent for cross- examination. - (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.
3. Matters to which affidavits shall be confined. - Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted: provided that the grounds thereof are stated.
4. [ Court may control evidence. [Inserted by Act No. 41 of 2018, dated 13.12.2018.] - (1) The court may, by directions regulate the evidence as to issues on which it requires evidence and the manner in which such evidence may be placed before the court.
5. Redacting or rejecting evidence. - A court may, in its discretion, for reasons to be recorded in writing -
6. Format and guidelines of affidavit of evidence. - An affidavit must comply with the form and requirements set forth below :
1. Judgment when pronounced - [(1) The Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders:
Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders.] [Substituted by Act VI of 2009, dated 20.3.2009.]2. -Power to pronounce judgement written by Judge's predecessor. - [A Judge shall] [Substituted by Act No. XI of 1983, w.e.f. 15-8-1983.] pronounce a judgement written but not pronounced by his predecessor.
3. Judgements to be signed. - The judgement shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by section 152 or on review.
4. Judgement of Small Cause Courts. - (1) Judgements of a Court of Small Causes need not contain more than the points for determination and the decision thereon.
Judgements of other Courts. - (2) Judgements of other courts shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.5. Court to state its decision on each issue. - In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit.
[5-A. Court to inform parties as to where an appeal lies in cases where parties are not represented by pleaders. - Except where both the parties are represented by pleaders, the Court shall, when it pronounces its judgement in a case subject to appeal, inform the parties present in Court as to the Court which an appeal lies and the period of limitation for the filing of such appeal and place on record the information so given to the parties] [Rule 5-A inserted by Act XI of 1983, Section 64 w.e.f. 15-08-1983.].6. Contents of decree. - (1) The decree shall agree with the judgment; it shall contain the number of the suit, the [names and descriptions of the parties, their registered addresses] [Substituted by Act XI of 1983, Section 64 w.e.f. 15-08-1983.] and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
6B. Copies of judgements when to be made available. - Where the judgement is pronounced, copies of the judgement shall be made available to the parties immediately after the pronouncement of the judgement for preferring an appeal on payment of such charges as may be specified in the rules made by the High Court.] [Substituted by Act VI of 2009, dated 20.3 2009.]
7. Date of decree. - The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.
8. Procedure where Judge has vacated office before signing decree. - Where a Judge has vacated office after pronouncing judgment but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which such Court was subordinate.
9. Decree for recovery of immovable property. - Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same and where such property can be identified by boundaries or by numbers in a record of settlement of survey, the decree shall specify such boundaries or numbers.
10. Decree for delivery of movable property. - Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.
11. Decree may direct payment by instalments. - (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason [incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an order that] [Substituted by Act XI of 1983, Section 64 w.e.f. 15-08-1983.] payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.
Order, after decree, for payment by instalments. -(2) After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, or without such consent for special reasons which are to be recorded, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.12. Decree for possession and mesne profits. - (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-
(a)for the possession of the property;(b)[ for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; [Substituted by Act XI of 1983, Section 64 w.e.f.15-08-1983.](b-a) for the mesne profits or directing an inquiry as to such mesne profits.](c)directing an inquiry as to rent or mesne profits from the institution of the suit until(i)the delivery of possession to the decree-holder,(ii)the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or(iii)the expiration of three years from the date of the decree,whichever event first occurs.13. Decree in administration-suit. - (1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit.
14. Decree in right of prior purchase suit. - (1) Where the Court decrees a claim to right of prior purchase in respect of a particular sale or property and the purchase-money has not been paid into Court, the decree shall
(a)specify a day on or before which the purchase-money shall be so paid, and(b)direct that on payment into Court or such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in cause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with the costs.15. Decree in suit for dissolution of partnership. - Where a suit is for the dissolution of a partnership or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties. fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved and directing such accounts to be taken, and other acts to be done, as it thinks fit.
16. Decree in suit for account between principal and agent. - In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not hereinbefore provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.
17. Special directions as to accounts. - The Court may either by the decree directing an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken or vouched and in particular may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima-facie evidence of the truth of the matters therein contained with liberty to the parties interested to take such objection thereto as they may be advised.
18. Decree in suit for partition of property or separate possession of a share therein. - Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,
19. Decree when set-off is allowed. - (1) Where the defendant has been allowed a set-off [or counter claim] [Inserted by Act XI of 1983, Section 64 w.e.f. 15-08-1983.] against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.
Appeal from decree relating to set-off. -(2) Any decree passed in a suit in which a set-off [or counter claim] [Inserted by Act XI of 1983, w.e.f. 15-8-1983.] is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off had been claimed.20. Certified copies of judgment and decree to be furnished. - Certified copies of the judgment and decree shall be furnished to the parties on application to the Court, and at their expense.
[Order XX-A (R, 1-2)] [Order XX-A inserted by Act XI of 1983, Section 65 (w e.f. 15.8.1983).]Costs1. Provisions relating to certain items - Without prejudice to the generality of the provisions of this Code relating to costs, the Court may award costs in respect of, -
2. Costs to be awarded in accordance with the rules made by High Court. - The award of costs under this rule shall be in accordance with such rules as the High Court may make in that behalf).
Order XXI (R. 1-106)Execution of Decrees and Orders Payment Under Decree[1. Modes of paying money under decree. - (1) All money, payable under a decree shall be paid as follows, namely:(a)by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or(b)out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or(c)otherwise, as the Court which made the decree, directs.2. Payment out of Court to decree-holder. - (1) Where any money payable under a decree of any kind is paid out of Court [or a decree of any kind is otherwise adjusted] [Substituted by Act XI of 1983, Section 66 w.e.f. 15-08-1983.] in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
3. Lands situate in more than one jurisdiction. - When immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate or tenure.
4. - Omitted
[5. Mode of transfer - Where a decree is to be sent for execution to another Court, the Court which passed such decree shall send the decree directly to such other Court whether or not such other Court is situated in the same State, but the Court to which the decree is sent for execution shall, if it has no jurisdiction to execute the decree, send it to the Court having such jurisdiction.] [Rule 5 substituted by Act XI of 1983, Section 66 w.e.f. 15-08-1983.].6. Procedure where Court desires that its own decree shall be executed by another Court - The Court sending a decree for execution shall send
7. Court receiving copies of decree, etc. to file same without proof. - The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof.
8. Execution of decree or order by Court to which it is sent. - Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction.
9. - Omitted
Application for Execution10. Application for execution. - Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.
11. Oral application. - (1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of decree, order immediate execution thereof by the arrest of the judgment-debtor, prior to the preparation of a warrant if he is within the precincts of the Court.
Written application. -(2) Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely:(a)the number of the suit;(b)the names of the parties;(c)the date of the decree;(d)whether any appeal has been preferred from the decree;(e)whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;(f)whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;(g)the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars or any cross-decree, whether passed before or after the date of the decree sought to be executed;(h)the amount of the costs (if any) awarded;(i)the name of the person against whom execution of the decree is sought; and(j)the mode in which the assistance of the court is required whether(i)by the delivery of any property specifically decreed;(ii)[ by the attachment, or by the attachment and sale, or by the sale without attachment, of any property] [ Substituted by Act X1 of 1983, Section 66 w.e.f. 15-08-1983.];(iii)by the arrest and detention in prison of any person;(iv)by the appointment of a receiver;(v)otherwise, as the nature of the relief granted may require.12. Application for attachment of movable property not in judgment-debtor's possession. - Where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree-holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.
13. Application for attachment of immovable property to contain certain particulars. - Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot
14. Power to require certified extract from collector's register in certain cases. - Where an application is made for the attachment of any land which is registered in the office of the Collector, the Court may require the applicant to produce a certified extract from the register of such office, specifying the person registered as proprietors of, or as possessing any transferable interest in, the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered proprietors.
15. Application for execution by joint decree-holder. - (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.
16. Application for execution by transferee of decree. - Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:
Provided that, where the decree, or such interest as aforesaid has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution:Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.[Explanation. - Nothing in this rule shall effect the provisions of section 146, and a transferee of rights in the property, which is the subject-matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule] [Explanation inserted by Act XI of 1983, Section 66 w.e.f. 15-08-1983.].17. Procedure on receiving application for execution of decree. - (1) On receiving an application for the execution of a decree as provided by rule 11, sub-rule (2) the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, [the Court shall allow] [ Substituted by Act No. XI of 1983 w.e.f. 15-8-1983] the defect to be remedied then and there or within a time to be fixed by it.
[(1-A) If the defect is not so remedied, the Court shall reject the application:Provided that where in the opinion of the Court, there is some inaccuracy as to the amount referred to in clauses (g) and (h) of sub-rule (2) of rule 11, the Court shall, instead of rejecting the application, decide provisionally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings ) the amount and make an order for the execution of the decree for the amount so provisionally decided.] [Sub-rule 1-A inserted by Act No. XI of 1983, w.e.f. 15-8-1983.]18. Execution in case of cross-decree. - (1) Where applications are made to a Court for the execution of cross-decrees in separate suit for the payment of two sums of money passed between the same parties and capable of execution at the same time by such Court, then
(a)if the two sums are equal, satisfaction shall be entered upon both decrees; and(b)if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction of the decree for the smaller sum.19. Execution in case of cross-claims under same decree. - Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then,
20. Cross-decrees and cross-claims in mortgage suits. - The provisions contained in rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or change.
21. Simultaneous execution. - The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.
22. Notice to show cause against execution in certain cases. - (1) Where an application for execution is made-
(a)more than [two years] [Substituted by Act XI of 1983, Section 66 for one year", w.e.f. 15-8-1983.] after the date of the decree, or(b)against the legal representative of a party to the decree, or(bb)[ against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, or] [Clause (bb) inserted by Act XI of 1983, Section 66 w.e.f. 15-08-1983.].(c)[ in respect of decree passed outside the State and execution whereof is sought within the State,] [Clause (c) inserted by Act VI of 1995.]the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:Provided that no such notice shall be necessary in consequence of more than [two years] [Substituted for "one year" by Act XI of 1983, section 66 (w.e.f. 15-8-1983).] having elapsed between the date of the decree and the application for execution if the application is made within [two years] [Substituted by Act XI of 1983, w.e.f. 15-8-1983.] from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him.23. Procedure after issue of notice. - (1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.
24. Process for execution. - (1) When the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.
25. Endorsement on process. - (1) The officer entrusted with the execution of the process shall endorse thereon the day on and the manner in which it was executed, and, if the latest day specified in the process for the return thereof has been executed, the reason of the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the Court.
26. When Court may stay execution. - (1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reason-able time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby or if application for execution had been made thereto.
27. Liability of judgment-debtor discharged. - No order of restitution or discharge under rule 26 shall prevent the property or person of a judgment-debtor from being retaken in execution of the decree sent for execution.
28. Order of Court which passed decree or of appellate Court to be binding upon Court applied to. - Any order of the Court by which the decree was passed, or of such Court of appeal as aforesaid, in relation to the execution of such decree, shall be binding upon the Court to which the decree was sent for execution.
29. Stay of execution pending suit between decree-holder and judgment-debtor. - Where a suit is pending in any Court against the holder of a decree of such Court [or of a decree which is being executed by such Court] [Inserted by Act XI of 1983, Section 66 w.e.f. 15-08-1983.] on the part of the person against whom the decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided:
[Provided that if the decree is one for payment of money, the Court shall, if it grants stay without requiring security, record its reasons for so doing.] [Added by Act No. XI of 1983, w.e.f. 15-8-1983.]Mode of Execution30. Decree for payment of money. - Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both.
31. Decree for specified movable property. - (1) Where the decree is for any specific movable or for any share in a specific movable, it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.
32. Decree for specific performance, restitution of conjugal rights, or for an injunction. - (1) Where the party against whom a decree for the specific performance of a contract, or restitution for conjugal rights, or for an injunction, has been pass,,d, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced [in the case of a decree for restitution of conjugal rights, by the attachment of the property or, in the case of a decree for the specific performance of a contract or for an injunction] [Substituted by Act IV of 1995.] by his detention in the civil prison, or by the attachment of his property, or by both.
34. Decree for execution of document, or endorsement of negotiable instrument. - (1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of t document or endorsement in accordance with the terms of the decree a d deliver the same to the Court.
35. Decree for immovable property. - (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
36. Decree for delivery of immovable property when in occupancy of tenant. - Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.
Arrest and Detention in the Civil Prison37. Discretionary power to permit judgment-debtor to show cause against detention in prison. - (1) Notwithstanding anything in these rules where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court [shall] [In rule 37 word "shall" substituted for "may" by Act VI of 1995.], instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:
[Provided that such notice shall not be necessary, if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court] [Proviso added by Act VI of 1995.].38. Warrant for arrest to direct judgment-debtor to be brought up. - Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the cost (if any) to which he is liable, be sooner paid.
39. Subsistence allowance. - (1) No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder pays into Court such sum as the Judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the Court.
41. [(1)] [Rule 1 re-numbered as Sub-rule (1) by Act X1 of 1983, Section 66 w.e.f. 15-08-1983.] Examination of judgment-debtor as to his property. - Where a decree is for the payment of money, the decree-holder may apply to the Court for an order that-
(a)the judgment-debtor, or(b)[Where the judgment-debtor is a corporation] [Substituted by Act X1 of 1983, Section 66 w.e.f. 15-08-1983.] any officer thereof, or(c)any other person,be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor or officer or other person, and for the production of any books or documents.42. Attachment in case of decree for rent of mesne profits or other matter, amount of which to be subsequently determined. - Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.
43. Attachment of movable property other than agricultural produce, in possession of judgment-debtor. - Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof:
Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.[43-A. Custody of movable property. - (1) Where the property attached consists of livestock, agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the proviso to rule 43, he may at the instance of the judgment-debtor or of the decree-holder or of any other person claiming to be interested in such property leave it in the village or place where it has been attached, in the custody of any respectable person (hereinafter referred to as the "custodian").44. Attachment of agricultural produce. - Where the property to be attached is agricultural produce, the attachment shall be made by affixing a copy of the warrant of attachment,
45. Provisions as to agricultural produce under attachment. - (1) Where agricultural produce is attached, the Court shall make such arrangements for the custody thereof as it may deem sufficient and, for the purpose of enabling the Court to make such arrangements, every application for the attachment of a growing crop shall specify the time at which it is likely to be fit to be cut or gathered.
46. Attachment of debt share and other property not in possession of judgment-debtor. - (1) In the case of-
(a)a debt not secured by a negotiable instrument,(b)a share in the capital of a corporation,(c)other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court,the attachment shall be made by a written order prohibiting,(i)in the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of Court;(ii)in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;(iii)in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.46.
-B. Order against garnishee. - Where the garnishee does not forthwith pay into Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of execution, and does not appear and show cause in answer to the notice, and on such order, execution may issue as though such order was a decree against him.46.
-C. Trial of disputed questions. - Where the garnishee disputes liability, the Court may order that any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit, and upon the determination of such issue shall make such order or orders as it deems fit:Provided that, if the debt in respect of which the application under rule 46-A is made in respect of a sum of money, beyond the pecuniary jurisdiction of the Court, the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate, and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge shall deal with it in the same manner as if the case had been originally instituted in that Court.46.
-D. Procedure where debt belongs to third person. - Where it is suggested or appears to be probable that the debt belongs to some third person, or that any third person has a lien or charge on, or other interest in, such debt, the Court may order such third person to appear and state the nature and particulars of his claim, if any, to such debt and prove the same.46.
-E. Order as regards third person. - After hearing such third person and any person or persons who may subsequently be ordered, to appear, or where such third or other person or persons do not appear when so ordered, the Court may make such order as is hereinbefore provided, or such other order or orders upon such terms, if any, with respect to the lien, charge or interest, as the case may be, of such third or other person or persons as it may deem fit and proper.46.
-F. Payment by garnishee to be valid discharge. - Payment made by the garnishee on notice under rule 46-A or under any such order as aforesaid shall be valid discharge to him as against the judgment-debtor and any other person ordered to appear as aforesaid for the amount paid or levied, although the decree in execution of which the application under rule 46-A was made, or the order passed in the proceedings in such application, may be set aside or reversed.46.
-G. Costs. - The costs of any application made under rule 46-A and of any proceedings arising therefrom or incidental thereto shall be in the discretion of the Court.46.
-H. Appeals. - An order made under rule 46-B, rule 46-C or rule 46-E shall be appeal-able as a decree.46.
-I. Application to negotiable instruments. - The provisions of rules 46-A to 46-H (both inclusive) shall, so far as may be, apply in relation to negotiable instruments attached under rule 51 as they apply in relation to debts] [Rule 46-A, 46-B, 46-C, 46-D, 46-E, 46-F, 46-G, 46-H and 46-I inserted by Act XI of 1983, section 66(w.e.f. 15-08-1983)].47. Attachment of share in movables. - Where the property to be attached consists of the share of interest of the judgment-debtor in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.
48. Attachment of salary or allowances of public officer or servant of local authority. - (1) Where the property to be attached is the salary or allowances of a public officer or of a servant of a local authority, [or of a servant of a corporation engaged in any trade or industry which is established by a Central or State Act, or a Government Company as defined in section 617 of the Companies Act, 1956 (1 of 1956)] [Inserted by Act XI of 1983, Section 66 w.e.f. 15-08-1983.] the Court, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court's jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and, upon notice of the order to such officer as the Government may, by notification in the Government Gazette, appoint in this behalf, the officer or other person whose duty it is to disburse such salary or allowances shall withhold and remit to the Court the amount due under the order, or the monthly instalments, as the case may be.
49. Attachment of partnership property. - (1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such.
50. Execution of decree against firm. - (1) Where a decree has been passed against a firm, execution may be granted
(a)against any property of the partnership;(b)against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;(c)against any person who has been individually served as a partner with a summons and has failed to appear:Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of [section 30 of the Partnership Act, Svt. 1996.] [Substituted by Ad XI of 1983, Section 66 (w.e.f. 15-08-1983).]51. Attachment of negotiable instruments. - Where the property is a negotiable instrument not deposited in a Court, nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court.
52. Attachment of property in custody of Court or public officer. - Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such Court or officer, requesting that such property, and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued:
Provided that, where such property is in the custody of a Court, any question of title or priority arising between the decree-holder, and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.53. Attachment of decree. - (1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made,-
(a)if the decree were passed by the same Court, then by order of such Court; and(b)if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay, the execution of its decree unless and until(i) the Court which passed the decree sought to be executed cancels the notice, or(ii)[ (a) the holder of the decree sought to be executed, or [Substituted by Act XI of 1983, Section 66 w.e.f. 15-08-1983.](b)his judgment-debtor with the previous consent in writing of such decree-holder or with the permission of the attaching Court, applies to the Court receiving such notice execute the attached decree].54. Attachment of immovable property - (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.
[(1-A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.] [Inserted by Act XI of 1983, Section 66 (w.e.f. 15-08-1983).]55. Removal of attachment after satisfaction of decree. - Where
56. Order for payment of coin or currency notes to party entitled under decree. - Where the property attached is current coin or currency notes, the Court may, at any time during the continuance of the attachment, direct that such coin or notes, or a part thereof sufficient to satisfy the decree, be paid over to the party entitled under the decree to receive the same.
[57. Determination of attachment. - (1) Where any property has been attached in execution of a decree and the Court, for any reason passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period to which such attachment shall continue or the date on which such attachment shall cease.58. Adjudication of claims to, or objections to attachment of property. - (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained,-(a)Where, before the claim is preferred or objection is made, the property attached has already been sold; or(b)Where the Court considers that the claim or objection was designedly or unnecessarily delayed.59. Stay of sale. - Where before the claim was preferred or the objection was made, the property attached had already been advertised for sale, the Court may-
64. Power to order property attached to be sold and proceeds to be paid to person entitled. - Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
65. Sales by whom conducted and how made. - Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.
66. Proclamation of sales by public auction. - (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.
67. Mode of making proclamation. - (1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54, sub-rule (2).
68. Time of sale. - Save in the case of property of the kind described in the proviso to rule 43, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least [fifteen days] [Substituted by Act XI of 1983, section 66 (w.e.f. 15-8-1983).] in the case of immovable property, and of at least [seven days] [Substituted by Act XI of 1983, section 66 (w.e.f. 15-8-1983).] in the case of movable property, calculated from the date on which the copy of proclamation has been affixed on the court-house of the Judge ordering the sale.
69. Adjournment or stoppage of sale - (1) The Court may in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment:
Provided that, where the sale is made in, or within the precincts of the Court-house, no such adjournment shall be made without the leave of the Court.70. Saving of certain sales. - Nothing in rules 66 to 69 shall be deemed to apply to any case in which the execution of a decree has been transferred to the Collector.
71. Defaulting purchaser answerable for loss on re-sale. - Any deficiency of price which may happen on a re-sale by reason of the purchaser's default, and all expenses attending such re-sale, shall be certified to the Court or to the Collector or subordinate of the Collector, as the case may be, by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.
72. Decree-holder not to bid for or buy property without permission. - (1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.
73. Restriction on bidding or purchase by officers. - No officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.
Sale of Movable Property74. Sale of agricultural produce. - (1) Where a property to be sold is agricultural produce, the sale shall be held,
(a)if such produce is a growing crop, on or near the land on which such crop has grown, or(b)if such produce has been cut or gathered, at or hear the threshing-floor or place for treading out grain or the like or fodder stack on or in which it is deposited:Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of opinion that the produce is thereby likely to sell to greater advantage.75. Special provisions relating to growing crops. - (1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so fixed as to admit of its being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut or gathered and is ready for storing.
76. Negotiable instruments and shares in corporations. - Where the property to be sold is negotiable instrument or a share in a corporation, the Court may, instead of directing the sale to be made by public auction, authorize the sale of such instrument or share through a broker.
77. Sale by public auction. - (1) Where movable property is sold by public auction the price or each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be resold.
78. Irregularity not to vitiate sale, but any person injured may sue. - No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.
79. Delivery of movable property, debts and shares. - (1) Where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser.
80. Transfer of negotiable instruments and shares. - (1) Where the execution of a document or the endorsement of the party in whose name a negotiable instrument or a share in a corporation is standing is required to transfer such negotiable instrument or share, the Judge or such officer as he may appoint in this behalf may execute such document or make such endorsement as may be necessary, and such execution or endorsement shall have the same effect as an execution or endorsement by the party.
81. Vesting order in case of other property - In the case of any movable property not hereinbefore provided for, the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.
Sale of Immovable Property82. What Courts may order sale. - Sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.
83. Postponement of sale to enable judgment-debtor to raise amount of decree. - (1) Where an order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor, the Court may, on his application, postpone the sale of the property comprised in the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.
84. Deposit by purchaser and re-sale on default. - (1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five percent on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.
85. Time for payment in full of purchase-money. - The full amount of purchase money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property:
Provided that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.86. Procedure in default of payment. - In default of payment within the period mentioned in the last proceeding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.
87. Notification on re-sale. - Every re-sale of immovable property, in default of payment of the purchase-money within the period allowed for such payment, shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.
88. Bid of co-sharer to have preference. - Where the property sold is a share of undivided immovable property and two or more persons, of whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.
89. Application to set aside sale on deposit. - (1) Where immovable property has been sold in execution of a decree,[any person claiming an interest in the property sold at the time of the sale or at time of making the application, or in the interest of such person] [Substituted by Act XI of 1983, section 66(w.e.f. 15.8.1983).] may apply to have the sale set aside on his depositing in Court,
(a)for payment to the purchaser, a sum equal to five percent of the purchase money, and(b)for payment to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.91. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest. - The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.
92. Sale when to become absolute or be set aside. - (1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall subject to the provisions of rule 94 becomes absolute:
[Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection] [Substituted by Act XI of 1983, Section 66 w.e.f. 15-08-1983.].93. Return of purchase-money in certain cases. - Where a sale of immovable property is set aside under rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.
94. Certificate to purchaser. - Where a sale of immovable property is confirmed, the Court shall prepare a certificate specifying the property sold, the name of the person who at the time of sale is declared to be the purchaser and the date on which the sale was confirmed and sent it for registration to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate situate. On completion of its registration according to the provisions of the Registration Officer shall return the certificate to the Court from whom it was received. The Court shall then issue the certificate to the purchaser.
95. Delivery of property in occupancy of judgment-debtor. - Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.
96. Delivery of property in occupancy of tenant. - Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.
Resistance to Delivery of Possession to Decree-Holder or Purchaser97. Resistance or obstruction to possession of immovable property. - (1) Where the holder of the decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
103. Orders to be treated as decrees. - Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.] [[[<b>98. Order after adjudication.</b> - (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2)</P>
<p class=subpara1>(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or</P><p class=subpara1>(b) pass such other order as in the circumstances of the case, it may deem fit.</P>105. Hearing application. - (1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.
106. Setting aside orders passed ex parte, etc. - (1) The applicant, against whom an order made under sub-rule (2) of rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.
1. Power to apply for declaration of insolvency. - Any judgment-debtor arrested or imprisoned in execution of a decree for money or against whose property an order of attachment has been made in execution of such a decree, may apply in writing to be declared an insolvent.
Any holder of a decree for money may apply in writing that the judgment-debtor may be declared an insolvent.Every such application shall be made to the District Court within the local limits of whose jurisdiction the judgment-debtor resides or is in custody.2. Contents of application. - The application when made by the judgment-debtor, shall set forth
3. Subscription and verification of application. - The application shall be signed and verified by the applicant in manner hereinbefore prescribed for signing and verifying pleadings.
4. Service of copy of application and notice. - The Court shall fix a day for hearing the application, and shall cause a copy thereof, with a notice in writing of the time and place at which it will be heard, to be struck up in Court, and served at the applicant's expense-
where the applicant is the judgment-debtor-on the holder of the decree in execution of which he was arrested or imprisoned or the order of attachment was made or on the pleader of such decree-holder and on the other creditors (if any) mentioned in the application;where the applicant is the decree-holder-on the judgment-debtor or his pleader; the Court may, if it thinks fit, publish, at the applicant's expense, the application in the Government Gazette and such public newspapers as it thinks fit.where the applicant is the judgment-debtor, the Court may exempt him from any payments under this section, if satisfied that he is unable to make them.5. Power to serve other creditors. - The court may also, if it thinks fit, cause a like copy and notice to be served on any other person alleging himself to be a creditor of the applicant, and applying for leave to be heard on the application.
[6. Powers of Court as to judgment-debtor under arrest. - If at the time of making an order admitting the petition or at any subsequent time before adjudication, the judgment-debtor is in custody under the forgoing provisions of this Code, the Court may order his release on such terms as to security as may be reasonable and necessary] [Rule 6 substituted.].7. Procedure at hearing. - On the day so fixed, or on any subsequent day to which the Court may adjourn the hearing, the Court shall examine the judgment-debtor, in the presence of the persons on whom such notice has been served or their pleaders, as to his then circumstances and as to his future means of payment, and shall hear the said decree-holder, the other creditors mentioned in the application, and the other persons (if any) alleging themselves to be creditors, in opposition to the judgment-debtor's discharge; and may, if it thinks fit, grant time to the said decree-holder and other creditors or persons to adduce evidence showing that the judgment-debtor is not entitled to be declared an insolvent.
8. Declaration of insolvency and appointment of Receiver. - If the Court is satisfied-
9. Creditors to prove their debts, schedule to be framed. - The creditors mentioned in the application, and the other persons (if any) alleging themselves to be creditors of the insolvent, shall then produce evidence of the amount and particulars of their respective pecuniary claims against him; and the Court shall, by order, determine the persons who have proved themselves to be the insolvent 's creditors and their respective debts; and shall frame a schedule of such persons and debts; and the declaration under rule 8 shall be deemed to be a decree in favour of each of the said creditors for the said respective debts.
A copy of every such schedule shall be stuck up in the Court-house.Nothing in this rule shall be deemed to entitle a partner in an insolvent firm, or, when he has died before the insolvency, his legal representative, to prove in competition with the creditors of the firm.10. Applications by un-scheduled creditors. - Any creditor of the insolvent who is not mentioned in such schedule may apply to the Court for permission to produce evidence of the amount and particulars of his pecuniary claims against the insolvent, and, in case the applicant proves himself to be a creditor of the insolvent, for and order directing his name to be inserted in the schedule as a creditor for the debt so proved.
Any creditor mentioned in the schedule may apply to the Court for an order altering the schedule, so far as regards the amount, nature or particulars of his own debt, or to strike out the name of another creditor, or to alter the schedule, so far as regards the amount, nature or particulars of the debt of another creditor.In the case of any application under this rule the Court, after causing such notices as it thinks fit to be served, at the applicant's expense, on the insolvent and the other creditors, and hearing their objections (if any), may comply with or reject the application.11. Effect of order appointing Receiver. - Every order under rule 8 shall be published in the Government Gazette, and every order under that rule appointing a Receiver, shall operate to vest in the Receiver all the insolvent 's property [except the particulars which are not liable to attachment or sale under section 60] [Substituted for "except the particulars specified in the first proviso to section 60" by Act X of Svt. 2001.] whether set forth in his application or not.
12. Receiver to give security and to collect assets and discharge of insolvent. - The Receiver so appointed shall give such security as the Court may direct, and shall possess himself of all such property, except as aforesaid; and on his certifying that the insolvent has placed him in possession thereof, or has done everything in his power for that purpose, the Court may discharge the insolvent upon such conditions (if any) as the Court thinks fit.
13. Duty of Receiver. - (A) The Receiver shall proceed under the direction of the Court
15. Declaration that insolvent is discharged from such liability. - If the aggregate amount of the scheduled debts is two hundred rupees or a less sum, the Court may, and in any case after the scheduled debts have been satisfied to the extent of one-third or after the expiry of twelve years from the order of discharge, the Court shall declare the insolvent, discharged as aforesaid absolved from further liability in respect of such debts.
16. Procedure in case of dishonest applicant. - Whenever, at the hearing under rule 7, it is proved that the applicant has
17. Investment of other Courts with powers of District Courts. - [The Government] [Substituted for "His Highness" by Act X of 1997.] may, by notification in the Government Gazette, invest any Court other than a District Court with the powers conferred on District Courts by the preceding rules and the District Judge may transfer to any Court, situate in his District, and so invested, any case instituted under rale 1.
A Court so invested may entertain an application under rule 1 by any person who has been arrested or imprisoned, or against whose property an order of attachment has been made in execution of a decree for money passed by that Court.Order XXII (R, 1-12).Death, Marriage and Insolvency of Parties1. No abatement by party's death, if right to sue survives. - The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
2. Procedure where one of several plaintiffs or defendants dies and right to sue survives. - Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
3. Procedure in case of one of several plaintiffs or of sole plaintiff. - (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
4. Procedure in case of death of one of several defendants or of sole defendant. - (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit.
5. Determination of question as to legal representative. - Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:
[Provided that where such question arises before an appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.] [Added by Act XI of 1983, Section 67 (w.e.f. 15.8.1983).]6. No abatement by reason of death after hearing. - Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.
7. Suit not abated by marriage of female party. - (1) The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with to judgment, and, where the decree is against a female defendant, it may be executed against her alone.
8. When plaintiff's insolvency bars suits. - (1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.
Procedure where assignee fails to continue suit or give security. -(2) Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the grounds of the plaintiff's insolvency, and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiffs estate.9. Effect of abatement or dismissal. - (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
10. Procedure in case of assignment before final order in suit. - (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, be leave of the Court. be continued by or against the person to or upon whom such interest has come or devolved.
11. Application of Order to appeals. - In the application of this Order to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal.
12. Application of Order to proceedings. - Nothing in rules 3,4 and 8 shall apply to proceedings in execution of a decree or order.
Order XXIII (R,1-4).Withdrawal and Adjustment of Suits[1. Withdrawal of suit or abandonment of part of claim - (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.2. Limitation law not affected by first suit - In any fresh suit instituted on permission granted under the last proceeding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.
3. Compromise of suit. - Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, [in writing and signed by the parties] [Substituted by Act XI of 1983, Section 68 w.e.f. 15-08-1983.] or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far it relates to the parties to the suit whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:
[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] [Proviso added by Act XI of 1983, Section 68 w.e.f. 15-08-1983.][Explanation. - An agreement or compromise which is void or voidable under the Contract Act, Svt. 1977, shall not be deemed to be lawful within the meaning of this rule.] [Added by Act XI of 1983, Section 68 w.e.f. 15-08-1983.][3-A. Bar to suit. - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.3.
-B. No agreement or compromise to be entered in a representative suit without leave of Court. - (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.4. Proceedings in execution of decrees not affected. - Nothing in this Order shall apply to any proceedings in execution of a decree or order.
Order XXIV (R,1-4).Payment into Court1. Deposit by defendant of amount in satisfaction of claim. - The defendant in any suit to recover a debt or damages may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim.
2. Notice of deposit. - Notice of the deposit shall be given through the Court by the defendant to the plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on his application.
3. Interest on deposit not allowed to plaintiff after notice. - No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited is in full of the claim or falls short thereof.
4. Procedure where plaintiff accepts deposit as satisfaction in part. - (1) Where the plaintiff accepts such amount as satisfaction in part only of his claim, he may prosecute his suit for the balance; and, if the Court decides that the deposit by the defendant was a full satisfaction of the plaintiffs claim, the plaintiff shall pay the costs of the suit incurred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiffs claim.
Procedure where he accepts it as satisfaction in full. -(2) Where the plaintiff accepts such amount as satisfaction in full of his claim, he shall present to the Court a statement to that effect, and such statement shall be filed and the Court shall pronounce judgment accordingly; and, in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation.Illustrations1. When security for costs may be required from plaintiff. - (1) Where, at any stage of a suit, it appears to the Court that a sole plaintiff is, or when there are more plaintiffs than one) that all the plaintiffs are residing out of the State, and that such plaintiff does not, or that no one of such plaintiffs does, possess any sufficient immovable property within the State other than the property in suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant.
Residence out of the State. -(2) Whoever leaves the State under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of the State within the meaning of sub-rule (1).2. Effect of failure to furnish security. - (1) In the event of such security not being furnished within the time fixed, the Court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.
1. Cases in which Court may issue commission to examine witness. - Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it:
[Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.Explanation. -The Court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.] [Added by Act XI of 1983, section 69 (w.e.f. 15.8.1983).]2. Order for commission. - An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.
3. Where witness resides within Court's jurisdiction. - A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.
4. Person for whose examination commission may issue. - (1) Any Court may in any suit issue a commission [for the examination on interrogatories or otherwise of] [Substituted by Act XI of 1983, Section 69 w.e.f. 15-08-1983.] ,-
(a)any person resident beyond the local limits of its jurisdiction;(b)any person who is about to leave such limits before the date on which he is required to be examined in Court; and(c)any civil or military officer of the Government who cannot, in the opinion of the Court, attend without detriment to the public service:[Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a Commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.] [Added by Act XI of 1983, section 69, w.e.f. 15.8.1983.]5. Commission or request to examine witness not within the State. - Where any Court to which application is made for the issue of a commission for examination of a person residing at any place not within the State is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.
6. Court to examine witness pursuant to commission. - Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.
7. Return of commission with depositions of witnesses. - Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall [subject to the provisions of the rule 8] [Substituted by Act XI of 1983, Section 69 w.e.f. 15-08-1983.] form part of the record of the suit.
8. When depositions may be read in evidence. - Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless
9. Commissions to make local investigations. - In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidation any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where [the Government] [Substituted for "His Highness" by Act VII of Svt. 2001.] has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.10. Procedure of Commissioner. - (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.
Report and depositions to be evidence in suit -Commissioner may be examined in person. (2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report , or as to his report, or as to the manner in which he has made the investigation.10.
-A. Commission for scientific investigation. - (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interest of justice so to do, issue a commission to such persons as it thinks fit, directing him to inquire into such question and report thereon to the Court.10.
-B. Commission for performance of a ministerial act. - (1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as thinks fit, directing him to perform that ministerial act and report thereon to the Court.10.
-C. Commission for the sale of movable property. - (1) Where, in any suit, it becomes necessary to sell any movable property which is in the custody of the Court pending the determination of the suit and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him, to conduct such sale and report thereon to the Court.11. Commission to examine or adjust accounts. - In any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.
12. Court to give Commissioner necessary instructions. - (1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.
Proceedings and report to be evidence. Court may direct further inquiry. -(2) The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.Commissions to Make Partitions13. Commission to make partition of immovable property. - Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.
14. Procedure of Commissioner. - (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
15. Expenses of commission to be paid into Court. - Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.
16. Powers of Commissioners. - Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment,
(a)examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;(b)call for and examine documents and other things relevant to the subject of inquiry;(c)at any reasonable time enter upon or into any land or building mentioned in the order.[16-A. Questions objected to before the Commissioner. - (1) Where any question put to a witness is objected to by a party or, his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting:Provided that the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the Court, and, where the Court decides that there is no question of privilege, the witness be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the ground of privilege.17. Attendance and examination of witnesses before Commissioner. - (1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are required has been issued by a Court situate within or by a Court situate beyond the limits of the State, and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court:
[Provided that when the Commissioner is not a judge of a Civil Court, he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.] [Added by Act No. XI of 1983, w.e.f. 15-8-1983.]18. Parties to appear before Commissioner. - (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
18.
-B. Court to fix a time for return of commission. - The Court issuing a commission shall, fix a date on or before which the commission shall be returned to it after execution, and the date so fixed shall not be extended except where the Court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date.] [Rules 18-A and 18-B inserted ibid.]Order XXVII (R, 1-8).Suits by or Against the Government or Public Officers in their Official Capacity1. Suits by or against Government. - In any suit by or against [the Government] [Substituted for the words "His Highness Government of Jammu and Kashmir" by Act XII of Svt. 2007.], the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.
2. Persons authorised to act for Government. - Persons being ex-officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.
3. Plaints in suits by or against Government. - In suits by or against [the Government] [ Substituted for the words "His Highness Government of Jammu and Kashmir" by Act XII of Svt. 2007.], instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the words [the State of Jammu and Kashmir] [Substituted for the words "His Highness Government of Jammu and Kashmir" by Act XII of Svt. 2007.].
4. Agent for Government to receive process. - The Government pleader in any Court, or such other person as [the Government] [Substituted for the words "His Highness Government of Jammu and Kashmir" by Act XII of Svt. 2007.] may for any Court appoint in this behalf, shall be the agent of the Government for the purpose of receiving process against [the Government] [Substituted for the words "His Highness Government of Jammu and Kashmir" by Act XII of Svt. 2007.], issued by such Court.
5. Fixing of day for appearance on behalf of Government. - The Court, in fixing the day for [the Government] [Substituted for the words "His Highness Government of Jammu and Kashmir" by Act XII of Svt. 2007.] to answer to the plaint, shall allow reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government pleader to appear and answer on behalf of [the Government] [Substituted for the words "His Highness Government of Jammu and Kashmir" by Act XII of Svt. 2007.] [xxx] [Words "or the Government" deleted by Act XII of 2000.] and may extend the time at its discretion [but the time so extended shall not exceed two months in the aggregate.] [Inserted by Act XI of 1983, section 70 w.e.f. 15-08-1983.]
[5-A. Government to be joined as party in a suit against a public officer. - Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.5.
-B. Duty of Court in suits against the Government or a public officer to assist in arriving of a settlement. - (1) In every suit or proceeding to which the Government or a public officer acting in his official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.6. Attendance of person able to answer questions relating to suit against Government. - The Court may also in any case in which the Government pleader is not accompanied by any person on the part of [the Government] [Substituted for the words "His Highness Government of Jammu and Kashmir" by Act XII of Svt. 2007.], who may be able to answer any material questions relating to the suit, direct the attendance of such a person.
7. Extension of time to enable public officer to make reference to Government. - (1) Where the defendant is a public officer and, on receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel.
8. Procedure in suits against public officer. - (1) Where Government undertakes the defence of a suit against a public officer, the Government pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.
1. Notice to the Attorney General or the Advocate General. - In any suit in which it appears to the Court that any such question as is referred to in clause (1) of Article 132 read with Article 147 of the Constitution of India or in section 105 of the Constitution of Jammu and Kashmir, is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for India if the question of law concerns the Central Government, and to the Advocate General of the State if the question of law concerns the State Government.
2. Procedure in suits involving validity of any statutory instrument. - In any suit in which it appears to the Court that any question as to the validity of any statutory instrument, not being a question of the nature mentioned in rule 1, is involved the Court shall not proceed to determine that question except after giving notice:-
3. Court may add Government as party. - The Court may at any stage of the proceedings order that the Central Government or the State Government shall be added as a defendant in any suit involving any such question as is referred to in clause (1) of article 132, read with Article 147 of the Constitution of India or the Constitution of Jammu and Kashmir if the Attorney General for India or the Advocate General, as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.
4. Power of court to add Government or other authority as a defendant in a suit relating to validity of any statutory instrument. - The Court may, at any stage of the proceedings in any suit involving any such question as is referred to in rule 2, order that the Government or other authority shall be added as a defendant if the Government pleader or the pleader appearing, in the case for the authority which issued the instrument, as the case may be, whether upon such receipt of notice under rule 2, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question.
5. Costs. - Where, under rule 3 or rule 4, the Government or any other authority is added as a defendant in a suit, the Attorney General, Advocate General or Government pleader or Government or other authority shall not be entitled to, or liable for costs in the Court which ordered the addition unless the Court, having regard to all the circumstances of the case for any special reason, otherwise orders.
6. Application of Order to appeal. - In the application of this Order to appeals, the word "defendant" shall be construed to include a respondent and the word "suit", an appeal.
Explanation. - In this Order "statutory instrument" means a rule, notification, .)y law, order, scheme or form made or specified under any enactment.]Order XXVIII (R, 1-3)Suits by or against Military Men1. Officers or soldiers who cannot obtain leave may authorise any person to sue or defend for them. - (1) Where any officer or soldier actually serving the Government in a military capacity is a party to a suit, and cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorise any person to sue or defend in his stand.
2. Person so authorised may act personally or appoint pleader. - Any person authorised by an officer or a soldier to prosecute or defend a suit in his stead may prosecute or defend it in person in the same manner as the officer or soldier could do if present; or he may appoint a pleader to prosecute or defend the suit on behalf of such officer or soldier.
3. Service on person so authorised, or on his pleader, to be good service. - Processes served upon any person authorised by an officer or a soldier under rule 1 or upon any pleader appointed as aforesaid by such person shall be as effectual as if they had been served on the party in person.
Order XXIX (R, 1-3)Suits by or against Corporations1. Subscription and verification of pleading. - In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
2. Service on corporation. - Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served
3. Power to require personal attendance of officer of corporation. - The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material question relating to the suit.
Order XXX (R, 1-10).Suits by or Against Firms and Persons Carrying on Business in Names other than their Own1. Suing of partners in name of firm. - (1) Any two or more persons claiming or being liable as partners and carrying on business in the State may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firms, to be furnished and verified in such manner as the Court, may direct.
2. Disclosure of partners' names. - (1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.
3. Service. - Where persons are sued as partners in the name of their firm, the summons shall be served either
4. Right of suit on death of partner. - (1) Notwithstanding anything contained in section 45 of the Contract Act, 1977, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.
5. Notice in what capacity served. - Where a summons is issued to a firm and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner.
6. Appearance of partners. - Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.
7. No appearance except by partners. - Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is partner of the firm sued.
[8. Appearance under protest. - (1) Any person served with summons as a partner under rule 3 may enter an appearance under protest, denying that he was a partner at any material time.9. Suits between co-partners. - This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the Court, and on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.
[10. Suit against person carrying on business in name other than his own. - Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case, permits, all rules under this order shall apply accordingly.] [Substituted by Act No. XI of 1983, w.e.f. 15-8-1983.]Order XXXI (R, 1-3).Suits by or against Trustees, Executors and Administrators1. Representation of beneficiaries in suits concerning property vested in trustees, etc. - In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor, or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.
2. Joinder of trustees, executors and administrators. - Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them:
Provided that the executors who have not proved their testator' will, and trustees, executors and administrators outside the State, need not be made parties.3. Husband of married executrix not to join. - Unless the Court directs otherwise, the husband of a married trustee, administrative or executrix shall not as such be a party to suit by or against her.
Order XXXII (R, 1.16)Suits by or Against Minors and Persons of Unsound Mind1. Minor to sue by next friend. - Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.
[Explanation. - In this Order, "minor" means a person who has not attained his majority within the meaning of section 3 of the Majority Act, Samvat 1977, where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.] [Inserted by Act XI of 1983, section 73(w.e.f. 15.8.1983).]2. Where suit is instituted without next friend plaint to be taken off the file. - (1) Where suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.
3. Guardian for the suit to be appointed by Court for minor defendant. - (1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
4. Who may act as next friend or be appointed guardian for the suit. - (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:
Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.5. Representation of minor by next friend or guardian for the suit. - (1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit.
6. Receipt by next friend or guardian for the suit of property under decree for minor. - (1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor either
(a)by way of compromise before decree or order, or(b)under a decree or order in favour of the minor.7. Agreement of compromise by next friend or guardian for the suit. - (1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
[(1-A.) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor:Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.] [Inserted by Act XI of 1983, Section 73 w.e.f. 15-08-1983.]8. Retirement of next friend. - (1) Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred.
9. Removal of next friend. - (1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within the State or for any other sufficient cause, application may be made on behalf of the minor or by r. defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit.
10. Stay of proceedings on removal, etc, of next friend. - (1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place.
11. Retirement, removal or death of guardian for the suit. - (1) Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.
12. Course to be followed by minor plaintiff or applicant on attaining majority. - (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.
13. Where minor co-plaintiff attaining majority desires to repudiate suit. - (1) Where a minor co-plaintiff on attaining the majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party, shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.
14. Unreasonable or improper suit. - (1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper.
1. - (1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family.
2. Proceedings to be held in camera. - In every suit or proceeding to which this Order applies the proceedings may be held in camera if the Court so desires and shall be so held if either party so desires.
3. Duty of Court to make efforts for settlement. - (1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.
4. Assistance of Welfare Expert. - In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the services of such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed by rule 3 of this Order.
5. Duty to inquire into facts. - In every suit or proceeding to which this Order applies, it shall be the duty of the Court, to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.
6. "Family" meaning of. - For the purpose of this Order, each of the following shall be treated as constituting a family, namely:
1. Suits may be instituted in forma pauperis - Subject to the following provisions, any suit may be instituted by [indigent person] [Substituted by Act XI of 1983, w.e.f. 15-8-1983.].
[Explanation I -A person is an indigent person.2. Contents of application. - Every application for permission to sue as [an indigent person] [ Substituted by Act XI of 1983, w.e.f. 15-8-1983.] shall contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.
3. Presentation of application. - Notwithstanding anything contained in these rules, the application shall be presented to the Court by the applicant in person, unless he is exempted from appearing in Court, in which case the application may be presented by an authorised agent who can answer all material questions relating to the application, and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person:
[Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by one of the plaintiffs.] [Added by Act No. XI of 1983, w.e.f. 15-8-1983.]4. Examination of applicant. - (1) Where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the applicant.
If presented by agent, Court may order applicant to be examined by commission. -(2) Where the application is presented by an agent, the Court may, if it thinks fit, order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken.5. Rejection of application. - The Court shall reject an application for permission to sue as [an indigent person] [Substituted by Act XI of 1983, Section 75, w.e.f. 15.8.1983.]
6. Notice of day for receiving evidence of applicant's pauperism. - Where the Court sees no reason to reject the application on any of the grounds stated in rule 5, it shall fix a day (of which at least ten days' clear notice shall be given to the opposite party and the Government pleader) for receiving such evidence as the applicant may adduce in proof of his pauper-ism and for hearing any evidence which may be adduced in disproof thereof.
7. Procedure at hearing. - (1) On the day so fixed or as soon thereafter as may be convenient, the Court shall examine the witnesses (if any) produced by either party, and may examine the applicant or his agent, and shall make[a full record of their evidence.] [Substituted by Act XI of 1983, Section 75 w.e.f. 15-08-1983.]
[(1-A) The examination of the witnesses under sub-rule (1) shall be confined to the matters specified in clause (b), clause (c) and clause (e) of rule 5 but the examination of the applicant or his agent may relate to any of the matters specified in rule 5.] [Inserted by Act XI of 1983, Section 75 w.e.f. 15-08-1983.]8. Procedure if application admitted. - Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee [or fees payable for service of process] [Substituted by Act XI of 1983, w.e.f. 15-8-1983.] in respect of any petition, appointment of a pleader or other proceeding connected with the suit. It shall, however, be within the competence of the Court in case of the extreme poverty of the plaintiff to exempt him from payment of process fees.
9. Dispaupering. - The Court may, on the application of the defendant, or of the Government pleader, of which seven day's clear notice in writing has been given to the plaintiff, order the plaintiff to be dispaupered
(a)if he is guilty of vexatious or improper conduct in the course of the suit;(b)if it appears that his means are such that he ought not to continue to sue as [an indigent person] [Substituted by Act XI of 1983.]; or(c)if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject-matter.[9-A. Court to assign a pleader to an unrepresented indigent person. - (1) Where a person, who is permitted to sue as an indigent person, is not represented by a pleader, the Court may, if the circumstances of the case so require, assign a pleader to him.10. Costs where pauper succeeds. - Where the plaintiff succeeds in the suit, the Court shall calculate the amount of Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as [an indigent person] [Substituted by Act XI of 1983, w.e.f. 15-8-1983.]; such amount shall be recoverable by the Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.
11. Procedure where pauper fails. - Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed,
12. Government may apply for payment of Court-fees. - Government shall have the right at any time to apply to the Court to make an order for the payment of Court-fees under rule 10, [rule 11 or rule 11-A] [Substituted by Act XVII of 2000.].
13. Government to be deemed a party. - All matters arising between the Government and any party to the suit under rule 10, rule 11, [rule 11-A] [Inserted by Act XVII of 2000.] or rule 12 shall be deemed to be question arising between the parties to the suit within the meaning of section 47.
[14. Recovery of amount of Court-fees. - Where an order is made under rule 10, rule 11 or rule 11-A, the Court shall forthwith cause a copy of the decree or order to be forwarded to the Collector who may, without prejudice to any other mode of recovery, recover the amount of Court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue.] [Substituted by Act XVII of 2000.]15. Refusal to allow applicant to sue as pauper to bar subsequent application of like nature. - An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, [provided that the plaint shall be rejected if he does not pay, either at the time of the institution of the suit or within such time thereafter as the Court may allow] [Substituted by Act XI of 1983, section 75.] the costs (if any) incurred by the Government and by the opposite party in opposing his application for leave to sue as [an indigent person] [Substituted by Act XI of 1983, w.e.f. 15-8-1983.].
[15-A. Grant of time for payment of Court-fee. - Nothing contained in rule 5, rule 7 or rule 15 shall prevent a Court, while rejecting an application under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the requisite Court-fee within such time as may be fixed by the Court or extended by it from time to time; and upon such payment and a payment of the costs referred to in sub- rule (2) of rule 15 within that time, the suit shall be deemed to have been instituted on the date on which the application for permission to sue as an indigent person was presented.] [Inserted by Act XI of 1983, Section 75 w.e.f. 15-08-1983.]16. Costs. - The costs of an application for permission to sue as a pauper and of an inquiry into pauperism shall be costs in the suit.
[17. Defence by an indigent person. - Any defendant, who desires to plead a set-off or counterclaim, may be allowed to set up such claim as an indigent person, and the rules contained in this Order shall so far as may be, apply to him as if he were a plaintiff and his written statement were a plaint.18. Power of Government to provide for free legal services to indigent persons. - (1) Subject to the provisions of this Order, the Central or State Government may make such supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as indigent persons.
1. Parties to suits for foreclosure, sale and redemption. - Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.
Explanation. - A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage[2. Preliminary decree in foreclosure suit] [Rule 2 to 8 substituted by Act VII of 1996.]. - (1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree(a)ordering that an account be taken of what was due to the plaintiff at the date of such decree for(i)Principal and interest on the mortgage,(ii)the costs of suit, if any, awarded to him, and(iii)other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security, together with interest thereon; or(b)declaring the amount so due at that date; and(c)directing-(i)that, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest, on such sum respectively as provided in rule 11, the plaintiff shall deliver up to the defendant, or to such person as the defendant appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendant at his cost free from the mortgage and from all encumbrances created by the plaintiff or any person claiming under him, or where the plaintiff claims by derived title, by those under whom he claims, and shall also, if necessary put the defendant in possession of the property; and (ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled to apply for a final decree debarring the defendant from all right to redeem the property.3. Final decree in foreclosure suit. - (1) Where, before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 2, the Court shall, on application made by the defendant in this behalf pass final decree,-
(a)ordering the plaintiff to deliver up the documents referred to in the preliminary decree,and, if necessary,-(b)ordering him to re-transfer at the cost of the defendant the mortgaged property as directed in the said decree,and, also if necessary,-(c)ordering him to put the defendant in possession of the property.4. Preliminary decree in suit for sale. - (1) In a suit for sale, if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (i) of sub-rule (1) of rule 2, and further directing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale(after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same.
5. Final decree in suit for sale. - (1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed an order
(a)ordering the plaintiff to deliver up the documents referred to in the preliminary decree,and, if necessary,(b)ordering him to transfer the mortgaged property as directed in the said decree,and, also, if necessary,(c)ordering him to put the defendant in possession of the property.6. Recovery of balance due on mortgage in suit for sale. - Where the net proceeds of any sale held under [rule 5] [Substituted by Act XI of 1983, Section 76 w.e.f. 15-08-1983.] are found insufficient to pay the amount due to the plaintiff, the Court on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.
7. Preliminary decree in redemption suit. - (1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree
(a)ordering that an account be taken of what was due to the defendant at the date of such decree for(i)principal and interest on the mortgage;(ii)the costs of suit, if any, awarded to him; and(iii)other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage-security together with interest thereon; or(b)declaring the amount so due at that date; and(c)directing(i)that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10 together with subsequent interest on such sums respectively as provided in rule 11, the defendant, shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property and shall if so required, re-transfer the property to the plaintiff at his cost free from the mortgage and from all encumbrances created by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims, and shall also, if necessary, put the plaintiff in possession of the property; and(ii)that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interests the defendant shall be entitled to apply for a final decree(a)in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold, or(b)in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all rights to redeem the property.8. Final decree in redemption suit. - (1) Where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule (1) of rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order
(a)ordering the defendant to deliver up the documents referred to in the preliminary decree,and, if necessary,(b)ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree,and, also, if necessary,(c)ordering him to put the plaintiff in possession of the property.9. Decree where nothing is found due or where mortgagee has been over-paid. - Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.
[10. Cost of mortgage subsequent to decree] [Rules 10 and 11 substituted by Act VII of 1996.]. - In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the suit and other costs, charges and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment:[Provided that where the mortgagor, before or at the time of the institution of the suit, tenders or deposits the amount due on the mortgage, or such amount as is not substantially deficient in the opinion of the Court, he shall not be ordered to pay the costs of the suit to the mortgagee and the mortgagor shall be entitled to recover his own costs of the suit from the mortgagee, unless the Court, for reasons to be recorded otherwise directs.] [Added by Act XI of 1983, section 76 w.e.f. 15-08-1983.][10-A. Power of Court to direct mortgagee to pay mesne profits. - Wherein a suit for foreclosure, the mortgagor has, before or at the time of the institution of the suit, 'tendered or deposited the sum due on the mortgage, or such sum as is not substantially deficient in the opinion of the Court, the Court shall direct the mortgagee to pay to the mortgagor mesne profits the period beginning with the institution of the suit.][(1) All the provisions contained in this Order as to the sale or redemption of mortgaged property shall, so far as may be, apply to property subject to a charge within the meaning of section 100 of the Transfer of Property Act, 1977] [Inserted by Act No. XI of 1983, w.e.f. 15-8-1983.].1. Plaint in interpleader-suit. - In every suit of interpleader the plaint shall, in addition to the other statements necessary for plaints, state
2. Payment of thing claimed into Court. - Where the thing claimed is capable of being paid into Court or placed in the custody of the Court, the plaintiff may be required to so pay or place it before he can be entitled to any order in the suit.
3. Procedure where defendant is suing plaintiff. - Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect of the subject-matter of such suit, the Court in which the suit against the plaintiff is pending shall, on being informed by the Court in which the interpleader-suit has been instituted, stay the proceedings as against him; and his costs in the suit so stayed may be provided for in such suit; but if, and in so far as, they are not provided for in that suit they may be added to his costs incurred in the interpleader-suit.
4. Procedure at first hearing. - (1) At the first hearing the Court may
(a)declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or(b)if it thinks that justice or convenience so required retain all parties until the final disposal of the suit.5. Agents and tenants may not institute inter-pleader suits. - Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any person other than persons making claim through such principals or landlords.
Illustrations6. Charge for plaintiff's costs. - Whether the suit is properly instituted the Court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.
Order XXXVI (R, 1-6).Special Case1. Power to state case for Court's opinion. - (1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court, and providing that, upon the finding of the Court with respect to such question,
(a)a sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to other of them; or(b)some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or(c)one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.2. Where value of subject-matter must be stated. - Where the agreement is for the delivery of any property, or for the doing, or the refraining from doing, any particular act, the estimated value of the property to be delivered or to which the act specified has reference, shall be stated in the agreement.
3. Agreement to be filed and registered as suit. - (1) The agreement, if framed in accordance with the rules hereinbefore contained, may be filed [with an application] [Inserted by Act XI of 1983, Section 77 w.e.f. 15-08-1983.] in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement.
4. Parties to be subject to Court's jurisdiction. - Where the agreement has been filed, the parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements contained therein.
5. Hearing and disposal of case. - (1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suit so far as the same are applicable.
4. Power to set aside decree. - After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.
5. Power to order bill, etc. to be deposited with officer of Court. - In any proceeding under this Order the Court may, order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.
6. Recovery of cost of noting non-acceptance of dishonoured bill or note. - The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment or otherwise, by reason of Such dishonour, as he has under this Order for the recovery of the amount of such bill or note.
7. Procedure in suits. - Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.
Order XXXVIII (R,13).Arrest and Attachment before Judgment Arrest before Judgment1. Where defendant may be called upon to furnish security for appearance. - Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,
2. Security. - (1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at anytime when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule.
3. Procedure on application by surety to be discharged. - (1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such surety to be discharged from his obligation.
4. Procedure where defendant fails to furnish security or find fresh security. - Where the defendant fails to comply with any order under rule 2 or rule 3, the Court may commit him to the civil prison until the decision of the suit or, where a decree is passed against the defendant, until the decree has been satisfied:
Provided that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees:Provided also that no person shall be detained in prison under this rule after he has complied with such order.Attachment before Judgment5. Where defendant may be called upon to furnish security for production of property. - (1) Where, at any stage of suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-
(a)is about to dispose of the whole or any part of his property, or(b)is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.6. Attachment where cause not shown or security not furnished. - (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.
7. Mode of making attachment. - Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.
[8. Adjudication of claim to property attached before judgment. - Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon the manner hereinbefore provided for the adjudication of claims to property attached in execution of a decree for the payment of money.] [Rule 8 substituted by Act XI of 1983, Section 79 w.e.f. 15-08-1983.]9. Removal of attachment when security furnished or suit dismissed. - Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.
10. Attachment before judgment not to affect rights of strangers nor bar decree-holder from applying for sale. - Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.
11. Property attached before judgment not to be re-attached in execution of decree. - Where property is under attachment by virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.
[11-A. Provisions applicable to an attachment. - (1) The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of rule 11.12. Agricultural produce not attachable before judgment. - Nothing in this Order shall be deemed to authorise the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.
[13. Small Cause Court not to attach immovable property. - Nothing in this Order shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.] [Rule 13 added by Act IX of 1988.]Order XXXIX (R, 1-10).Temporary Injunctions and Interlocutory Orders Temporary Injunctions1. Cases in which temporary injunction may be granted. - Where in any suit it is proved by affidavit or otherwise
2. Injunction to restrain repetition or continuance of breach. - (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of like kind arising out of the same contract or relating to the same property or right.
3. Before granting injunction Court to direct notice to opposite party. - The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party;
2. Added by Act XI of 1983, Section 80 w.e.f. 15-08-1983.[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant:
4. Order for injunction may be discharged, varied or set aside. - Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:
[Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction as granted without giving notice to the opposite party the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interest of justice:Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.] [Proviso added by Act XI of 1983, Section 80 w.e.f. 15-08-1983.]5. Injunction to corporation binding on its officers. - An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.
Interlocutory Orders6. Powers to order interim sale. - The Court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property, being the subject-matter of such suit, or attached before judgment in such suit, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable to have sold at once.
7. Detention, preservation, inspection, etc. of subject-matter of suit. - (1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit
(a)make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein;(b)for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; and(c)for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.8. Application for such orders to be after notice. - (1) An application by the plaintiff for an order under rule 6 or rule 7 may be made [x x x] [Omitted by Act XI of 1983, section 80.] at any time after institution of the suit.
9. When party may be put in immediate possession of land the subject -matter of suit. - Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a suit, if the party in possession of such land or tenure neglects to pay the Government revenue, or the rent due to the proprietor of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the suit claiming to have an interests in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be put in immediate possession of the land or tenure;
and the Court in its decree may award against the defaulter the amount so paid with interest thereon at such rate as the Court thinks fit, or may charge the amount so paid, with interests thereon at such rate as the Court orders, in any adjustment of accounts which may be directed in the decree passed in the suit.10. Deposit of money, etc. in Court. - Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.
Order XL (R, 1-5)Appointment of Receivers1. Appointment of receivers. - (1) Where it appears to the Court to be just and convenient, the Court may by order
(a)appoint a receiver of any property, whether before or after decree;(b)remove any person from the possession or custody of the property;(c)commit the same to the possession, custody or management of the receiver; and(d)confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.2. Remuneration. - The Court may be general or special order fix the amount to be paid as remuneration for the services of the receiver.
3. Duties. - Every receiver so appointed shall-
4. Enforcement of receiver's duties. - Where a receiver
5. When Collector may be appointed receiver. - Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector, appoint him to be receiver of such property.
Order XLI (R, 1-37).Appeals from Original Decrees1. Form of appeal. What to accompany memorandum - (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the [Judgment] [Substituted for "decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded"by Act VI of 2009, dated 20.3.2009.]:
[Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the appellate Court may dispense with the filing of more than one copy of the judgment.] [Proviso added by Act XI of 1983, Section 81 w.e.f. 15-08-1983.]Contents of memorandum. -(2) The memorandum shall set forth, concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.2. Grounds which may be taken in appeal. - The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.3. Rejection or amendment of memorandum - (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.
4. One of several plaintiff or defendants may obtain reversal of whole decree where it proceeds on ground common to all. - Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendant, as the case may be.
Stay of Proceedings and of Execution5. Stay by Appellate Court - (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
[Explanation. -An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.] [Inserted by Act XI of 1983, Section 81 w.e.f. 15-08-1983.]Stay by Court which passed the decree. -(2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.6. Security in case of order for execution of decree appealed from. - (1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court may for like cause direct the Court which passed the decree to take security.
7. No security to be required from the Government or a public officer in certain cases. - No such security as is mentioned in rules 5 and 6 shall be required from [the Government] [Substituted for "Judicial Minister His Highness" Government, Jammu and Kashmir" by Act X of Svt. 2010.] or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by in his official capacity.
8. Exercise of powers in appeal from order made in execution of decree. - The powers conferred by rule 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.
Procedure on Admission of Appeal[9. Registry of memorandum of appeal. - (1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.10. Appellate Court may require appellant to furnish security for costs. - (1) The Appellate Court may, in its discretion either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both:
Where appellant resides out of the State. -Provided that the Court shall demand such security in all cases in which the appellant is residing out of the State, and is not possessed of any sufficient immovable property within the State other than the property (if any) to which the appeal relates.11. Power to dismiss appeal without sending notice to Lower Court. - [(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal.] [Substituted by Act VI of 2009, dated 20.3.2009.]
12. Day for hearing appeal. - (1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.
14. Publication and service of notice of day for hearing appeal. - (1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.
Appellate Court may itself cause notice to be served. -(2) Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.16. Right to begin. - (1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.
17. Dismissal of appeal for appellant's default. - (1) Where on the day fixed, or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
[Explanation. -Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.] [Inserted by Act XI of 1983, Section 81 w.e.f. 15-08-1983.]Hearing appeal ex parte. -(2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.[...] [Rule 18 omitted by Act VI of 2009, dated 20.3.2009.]19. Re-admission of appeal dismissed for default. - Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17, [the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing on from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit] [Words"or rule 18" omitted by Act VI of 2009, dated 20.3.2009.].
20. Power to adjourn hearing and direct persons appearing interested to be made respondents. - [(1)] [Rule 20 re-numbered as sub-rule (1) of that rule and sub-rule (2) inserted by Act XI of 1983, section 81, w.e.f 15-08-1983.] Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.
21. Re-hearing on application of respondent ex parte decree made. - Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.
22. Upon hearing respondent may object to decree as if he had preferred separate appeal. - (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow] [Substituted by Act XI of 1983, Section 81 w.e.f. 15-08-1983.].
[Explanation. -A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] [Inserted by Act XI of 1983, section 81 w.e.f. 15-08-1983.]23. Remand of cause by Appellate Court. - Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with direction to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
[23-A. Remand in other cases. - Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.] [Inserted by Act XI of 1983, Section 81 w.e.f. 15-08-1983.]24. Where evidence on record sufficient, Appellate Court may determine case finally. - Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate Court proceeds.
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. - Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time.] [Inserted by Act XI of 1983, Section 81(w.e.f. 15.8.1983).]26. Findings and evidence to be put on record. Objections to finding. - (1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.
Determination of appeal. -(2) After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.[26-A. Order of remand to mention date of next hearing -Where the Appellate Court remands a case under rule 23 or rule 23-A, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before the Court form whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit.] [Inserted by Act XI of 1983, Section 81 w.e.f. 15.08.1983.]27. Production of additional evidence in Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a)the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or(aa)the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or(b)the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate court may allow such evidence or document to be produced, or witness to be examined.28. Mode of taking additional evidence. - Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.
29. Points to be defined and recorded. - Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.
Judgment in Appeal30. Judgment when and where pronounced. - [(1)] [Re-numbered as sub-rule (1) by Act XI of 1983, section 81 w.e.f. 15-08-1983.] The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.
31. Contents, date and signature of judgment. - The judgment of the Appellate Court shall be in writing and shall state
32. What judgment may direct. - The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.
33. Power of Court of Appeal. - The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decreed in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decree, although an appeal may not have been filed against such decree] [Inserted by Act XI of 1983, Section 81 w.e.f. 15-08-1983.]:
[Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.] [Proviso to rule 33 added by Act IV of 1988.]IllustrationA claims a sum of money as due to him from X or Y in a suit against both obtain a decree against X. X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.[34. Dissent to be recorded. - Where the appeal is heard by more Judges than one, any Judge dissenting from the judgment of the Court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same.] [Rule 34 inserted by Notification 3-L/85 published in Government Gazette dated 8th Bhadon, 1985.]Decree in Appeal35. Date and contents of decree. - (1) The decree of the Appellate Court shall bear date, the day on which the judgment was pronounced.
36. Copies of judgment and decree to be furnished to parties. - Certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the Appellate Court and at their expense.
37. Certified copy of decree to be sent to Court whose decree appealed from. - A copy of the judgment and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit, and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.
Order XLII, (R, 1-3).Appeals from Appellate Decrees1. Procedure. - The rules or Order XLI shall apply, so far as may be, to appeals from appellate decrees. The appellant shall, in addition to the copies of the decree and judgment appealed from, also file a copy of the judgment of the Court of first instance.
[2. Power of Court to direct that the appeal be heard on the question formulated by it. - At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.3. Application of rule 14 of Order XLI. - Reference in sub-rule (4) of rule 14 of Order XLI to the Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.] [Rules 2 and 3 inserted by Act XI of 1983, Section 82 w.e.f. 15-08-1983.]
Order XLIII (R,1-2).Appeals from Orders1. Appeals from orders. - An appeal shall lie from the following orders under the provisions of section 104, namely:-
(a)an order under rule 10 of Order VII returning a plaint to be presented to the proper Court 1. Inserted by Act XI of 1983, Section 83 w.e.f. 15-08-1983.[except where the procedure specified in rule 10-A of Order VII has been followed];(b)[ ***] [Omitted ibid.];(c)an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;(d)an order under rule 13 of Order IX rejecting an application (in a case open to appeal ) for an order to set aside a decree passed ex parte;(e)[***] [Omitted by Act No. XI of 1983, w.e.f. 15-8-1983.];(f)an order under rule 21 of Order XI;(g)[***] [Omitted by Act No. XI of 1983, w.e.f. 15-8-1983.];(h)[***] [Omitted by Act No. XI of 1983, w.e.f. 15-8-1983.];(i)an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;(ii)an order under sub-rule (2), rule 11 of Order XX passed without the consent of the parties;(j)an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;[(j-a) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable;] [Inserted by Act No. XI of 1983, w.e.f. 15-8-1983.](jj)[ and order passed by any Court other than the High Court under Order XXI (A) in the exercise of insolvency jurisdiction] [Added by Notification No. 9-1.182 dated 9th Maghar, 1982.];(k)an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;2. Procedure. - The rules of Order XLI shall apply, so far as may be, to appeals from orders.
Order XLIV (R, 1-3).[Appeals by Indigent Persons] [Substituted by Act XI of 1983, Section 84 w.e.f. 15-08-1983.]1. Who may appeal [as an indigent person] [Substituted by Act XI of 1983, w.e.f. 15-8-1983.]. - Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an [indigent person] [Substituted by Act XI of 1983, w.e.f. 15-8-1983.] subject, in all matters, including the presentation of such application, to the provisions relating to suits by [indigent persons] [Substituted by Act XI of 1983, w.e.f. 15-8-1983.] in so far as those provisions are applicable.
[xxx] [Proviso omitted ibid.]2. Grant of time for payment of Court-fee. - Where an application is rejected under rule 1, the Court may, while rejecting the application, allow the applicant to pay the requisite Court-fee, within such time as may be fixed by the Court or extended by it from time to time; and upon such payment, the memorandum of appeal in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.
3. Inquiry as to whether applicant is an indigent person. - (1) Where an applicant, referred to in rule 1, was allowed to sue or appeal as an indigent person in the Court from whose decree the appeal is preferred, no further inquiry in respect of the question whether or not he is an indigent person shall be necessary if the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from; but if the Government Pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question aforesaid shall be held by the Appellate Court, or, under the orders of the Appellate Court, by an officer of that Court.
1. Decree defined. - In this Order, unless there is something repugnant in the subject or context, the expression "decree" shall include a final order.
2. Application to the High Court. - [(1)] [Rule 2 renumbered as sub-rule (1) of that rule and sub-rule (2) inserted by Act XI of 1983, Section 85 (w.e.f. 15-08-1983).] Whoever desires to appeal to the Supreme Court shall apply by petition to the High Court in this behalf.
3. Certificate as to value or fitness. - (1) Every petition shall state the grounds of appeal and pray for a certificate either that, as regards amount or value and nature, the case fulfils the requirements of section 110, or that it is otherwise a fit one for appeal to the Supreme Court.
4. Consolidation of suits. - For the purposes of pecuniary valuation, suits involving substantially the same questions for determination and decided by the same judgment may be consolidated; but suits decided by separate judgments shall not be consolidated, notwithstanding that they involve substantially the same questions for determination.
5. Remission of dispute to Court of first instance. - In the event of any dispute arising between the parties as to the amount or value of the subject-matter of the suit in the Court of first instance, or as to the amount or value of the subject matter in dispute on appeal to the Supreme Court, the High Court may, if it thinks fit, refer such dispute for report to the Court of first instance, which last-mentioned Court shall proceed to determine such amount or value and shall return its report together with the evidence to the High Court.
6. Effect of refusal of certificate. - Where such certificate is refused, the petition shall be dismissed.
7. Security and deposit required on grant of certificate. - (1) Where the certificate is granted, the applicant shall within ninety days or such further period, not exceeding sixty days, as the High Court may upon cause shown, allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date,-
(a)furnish security in case or in Government securities for the costs of the respondent, and(b)deposit the amount required of defray the expense of translating, transcribing, indexing, printing and transmitting to the Supreme Court a correct copy of the whole record of the suit, except8. Admission of appeal and procedure thereon. - Where such security has been furnished and deposit made to the satisfaction of the High Court, the High Court shall-
9. Revocation of acceptance of security - At any time before the admission of the appeal the High Court may, upon cause shown, revoke the acceptance of any such security, and make further directions thereon.
10. Power to dispense with notice in case of deceased parties. - Nothing in these rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the High Court in connection with the decree complained of or at any proceedings subsequent to such decree:
Provided that notices under sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous place in the Court-house of the Judge of the District in which the suit was originally brought, and by publication in such newspapers as the High Court may direct.11. Power to order further security or payment. - Where at any time after the admission of an appeal but before the transmission of the copy of the record, except as aforesaid, to the Supreme Court, such security appears inadequate,
or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid,the High Court may order the appellant to furnish, within a time to be fixed by the High Court, other and sufficient security, or to make, within like time, the required payment.12. Effect of failure to comply with order. - Where the appellant fails to comply with such order, the proceedings shall be stayed; and the appeal shall not proceed without an order in this behalf of the Supreme Court, and in the meantime execution of the decree appealed from shall not be stayed.
13. Refund of balance deposit. - When the copy of the record, except as aforesaid, has been transmitted to the Supreme Court the appellant may obtain a refund of the balance (if any) of the amount which he has deposited under rule 7.
14. Powers of Court pending appeal. - (1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the High Court otherwise directs.
15. Increase of security found inadequate. - (1) Where at any time during the pendency of the appeal the security furnished by either party appears inadequate, the High Court may, on the application of the other party, require further security.
16. Procedure to enforce orders of the Supreme Court. - (1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the High Court.
17. Appeal from order relating to execution. - The orders made by the Court which executes the decree or order of the Supreme Court, relating to such execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees.
Order XLVI (R,1- 7).Reference1. Reference of question to High Court. - Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained and refer such statement with its own opinion on the point for the decision of the High Court.
2. Court may pass decree contingent upon decision of High Court. - The Court may either stay the proceedings or proceed in the case notwithstanding such reference and may pass a decree or make an order contingent upon the decision of the High Court on the point referred;
but no decree or order shall be executed in any case in which such reference is made until the receipt of a copy of the judgment of the High Court upon the reference.3. Judgment of High Court to be transmitted, and case disposed of accordingly. - The High Court, after hearing the parties if they appear and desire to be heard, shall decide the point so referred, and shall transmit a copy of its judgment, under the signature of the Registrar, to the Court by which the reference was made, and such Court shall, on the receipt thereof, proceed to dispose of the case in conformity with the decision of the High Court.
4. Cost of reference to High Court. - The costs (if any) consequent on a reference for the decision of the High Court shall be costs in the case.
[4-A. - The provisions of rules 2,3 and 4 shall apply to any reference by the Court under the proviso to section 113 as they apply to a reference under rule 1.] [Rule 4-A added by Act XII of 1968.]5. Power to alter, etc. decree of Court making reference. - Where a case is referred to the High Court under rule 1 [or under the proviso to section 113] [Inserted by Act XII of 1968.]the High Court may return the case for amendment, and may alter, cancel or set aside any decree or order which the Court making the reference has passed or made in the case out of which the reference arose and make such order as it thinks fit.
6. Power to refer to High Court questions as to jurisdiction in small causes. - (1) Where at any time before judgment a Court in which a suit has been instituted doubts whether the suit is cognizable by a Court of Small Causes or is not so cognizable, it may submit the record to the High Court with a statement of its reasons for the doubt as to the nature of the suit.
7. Power to District Court to submit for revision proceedings had under mistake as to jurisdiction in small causes. - (1) Where it appears to a District Court that a Court subordinate thereto has, by reason of erroneously holding a suit to be cognizable by a Court of Small Causes or not to be so cognizable failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the District Court may, and if required by a party shall, submit the record to the High Court with a statement of its reasons for considering the opinion of the subordinate Court with respect to the nature of the suit to be erroneous.
1. Application for review of judgment. - (1) Any person considering himself aggrieved
(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,(b)by a decree or order from which no appeal is allowed, or(c)by a decision on a reference from a Court of Small Causes,and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.2. To whom applications for review may be made. - An application for review of a decree or order of a Court, not being the High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree or made the order sought to be reviewed; but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under rule 4, sub-rule (2), proviso (a), be disposed of by his successor.
3. Form of applications for review. - The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review.
4. Application where rejected. - (1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application.
6. Application where rejected. - (1) Where the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be rejected.
7. Order of rejection not appealable. - Objections to order granting application:-
8. Registry of application granted, and order for re-hearing. - When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.
9. Bar of certain applications. - No application to review an order made on an application for review or a decree or order passed or made on a review shall be entertained.
Order XLVIII (R. 1-3)Miscellaneous1. Process to be served at expense of party issuing. - (1) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs.
Costs of service. -(2) The Court-fee chargeable for such service shall be paid within a time to be fixed before the process is issued.2. Orders and notices how served. - All orders, notices and other documents required by this Code to be given to or served on any person shall be served in the manner provided for the service of summons.
3. Use of forms in appendices. - The forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned.
[Order XLIX (R,1-3). [Order XLIX inserted by Notification No. 3-L/85 published in the Government Gazette dated 8th Bhadon, 1985. ]The High Court1. Who may serve processes of High Court. - Notice to produce documents, summons to witnesses, and every other judicial process issued in the exercise of the original civil jurisdiction of the High Court, and of its testamentary and intestate jurisdictions, except summonses to defendants, writs of execution and notices to respondents, may be served by the attorneys in the suits, or by persons employed by them, or by such other persons as the High Court, by any rule or order, directs.
2. Rules already in force affected. - Nothing in this Schedule shall be deemed to limit or otherwise affect any rules in force at the commencement of this Code for the taking of evidence or the recording of judgments and orders by the High Court.
3. Application of rules. - The following rules shall not apply to the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:
1. Small Cause Courts. - The provisions hereinafter specified shall not extend to Courts constituted under the Small Cause Courts Act, or to Courts exercising the jurisdiction of a Court of Small Causes under that Act, that is to say-
(a)so much of this Schedule as relates to(i)suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;(ii)the execution of decrees against immovable property or the interest of a partner in partnership property;(iii)the settlement of issues; and(b)the following rules and orders,Order II, rule 1 (frame of suit);Order X, rule 3 (record of examination of parties);Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment;Order XVIII, rules 5 to 12 (evidence);Order XLI to XLV (appeals);Order XLVII, rules 2, 3, 5, 6, 7 (review).Order LI.[Omitted]Appendix APleadingsTitles of suitsIn the Court ofA.B. (add description and residence) ............. Plaintiff,AgainstC.D. (add description and residence) ............. Defendant.1. [The State of Jammu and Kashmir] [Substituted for "Jammu and Kashmir Government"by Act X of Svt. 2010.].
2. [2. The Plaintiff has obtained the leave of the Court for the institution of this suit] [[Substituted for "the State Advocate" by A.L.O. Svt. 2008.[The Advocate General]</span></a>.</P>
The Collector of</P>The State of</P>The A.B. Company, Limited, having its registered office at</P>..........................</P>A. B., a public officer of the C.D. Company.</P>...........................</P>A. B. (add description and residence ), on behalf of himself and all other creditors of C.D., late of (add description and residence).</P>..........................</P>A.B. (add description and residence), on behalf of himself and all other holders of debentures issued by the ..... Company, Limited.</P>..........................</P>The Official Receiver.</P>A. B., a minor (add description and residence), by C.D. (or by the Court of Wards), his next friend.</P>..........................</P>A.B., (add description and residence), a person of unsound mind (or of weak mind), by C.D., his next friend.</P>A.B., a firm carrying on business in partnership.</P>A.B., (add description and residence), by his constituted attorney C.D. (add description and residence).</P>..........................</P>A.B., (add description and residence), executor of C.D., deceased.</P>A.B., (add description and residence), heir of C.D. deceased.</P>..........................</P><p align=center><b><i>(3) Plaints.</b></i></P><p align=center><b>No. 1.</b></P><p align=center><b>Money lent</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:</P>1. On the ...... day of...... 19 ......, he lent the defendant ......rupees ...... repayable on the day of ...... 19 ......</P>
2. The defendant has not paid the same, except rupees paid on the ...... day of ...... 19 ......</P>
[If the plaintiff claims exemption from any law of limitation, say:]</P>3. The plaintiff was a minor (or insane) from the ...... day of ...... till the ...... day of .......</P>
4.
[Facts showing when the cause of action arose and that Court has jurisdiction.]</P>5. The value of the subject-matter of the suit for the purpose of jurisdiction is ...... .. rupees and for the purpose of Court-fees is ...... rupees.</P>
6. The plaintiff claims...... rupees, with interest at...... percent from the...... day of ...... 19......</P>
<p align=center><b>No. 2</b></P><p align=center><b>Money Overpaid.</b></P><p align=center>(Title).</P>A.B., the above named plaintiff, states as follows :-</P>1. On the ...... day of ...... 19 ......, the plaintiff agreed to buy and the defendant agreed to sell ...... bars of silver at...... annas per tola of fine silver.</P>
2. The plaintiff procured the said bars to be assayed by E. F., who was paid by the defendant for such assay, and E. F. declared each of the bars to contain 1,500 tolas of fine silver, and the plaintiff accordingly paid the defendant ...... rupees.</P>
3. Each of the said bars contained only, 1,270 tolas of fine silver, of which fact the plaintiff was ignorant when he made the payment.</P>
4.
The defendant has not repaid the sum so overpaid.</P>[As in paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 3.</b></P><p align=center><b>Goods sold at a fixed price and delivered</b></P><p align=center>(Title).</P>A. B., the above named plaintiff, states as follows :-</P>1. On the ...... day of ...... 19 ......,</P>
E.F., sold and delivered to the defendant (one hundred barrels of flour, or the goods mentioned in the scheduled hereto annexed, or sundry goods.)</P>2. The defendant promised to pay ...... rupees for the said goods on delivery (or on the ...... day of ......, some day before the plaint was filed).</P>
3. He has not paid the same.</P>
4. E.F. died on the ...... day of ...... 19 ......, By his last will he appointed his brother, the plaintiff, his executor.</P>
7. The plaintiff as executor of E.F. Claims (Relief claimed).</P>
[As in Paras 4 and 5 of Form No.1]</P><p align=center><b>No. 4.</b></P><p align=center><b>Goods sold at a reasonable price and delivered</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows :-</P>1. On the ....... day of ....... 19 ......., plaintiff sold and delivered to the defendant (sundry articles or house, furniture), but no express agreement was made as to the price.</P>
2. The goods were reasonably worth rupees.</P>
3. The defendant has not paid the money.</P>
[As in paras 4 and 5 of Form No. 1, and relief claimed].</P><p align=center><b>No. 5</b></P><p align=center><b>Goods made at defendant's request, and not accepted</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the .......... day of .......... 19 .......... ,E.F., agreed with the plaintiff that the plaintiff should make for him (six tables and fifty chairs) and the E.F. should pay for the goods on delivery .......... rupees.</P>
2. The plaintiff made the goods, and on the day of .......... 19 .........., offered to deliver them to E.F, and has ever since been ready and willing so to do.</P>
3. E.F. has not accepted the goods or paid for them.</P>
[As in paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 6</b></P><p class=center><b>Deficiency upon a re-sale (goods sold at auction)</b></P><p align=center>(Title)</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the ........ day of ........ 19 ........, the plaintiff put at auction sundry (goods), subject to the condition that all goods not paid for and removed by the purchaser within (ten days) after the sale should be re-sold by auction on his account, of which condition the defendant had notice.</P>
2. The defendant purchased (one crate of crockery) at the auction at the price of ........ rupees.</P>
3. The plaintiff was ready and willing to deliver the goods to the defendant on the date of the sale and for (ten days) after.</P>
4. The defendant did not take away the goods purchased by him, nor pay for them within (ten days) after the sale, nor afterwards.</P>
5. On the ........ day of ........ 19 ........, the plaintiff re-sold the (crate or crockery), on account of the defendant, by public auction, for ........ rupees</P>
6. The expenses attendant upon such re-sale amounted to ........ rupees.</P>
7. The defendant has not paid the deficiency thus arising, amounting to ........ rupees........ .</P>
[As in paras 4 and 5 of Form No. 1, and relief claimed]</P><p align=center><b>No. 7</b></P><p align=center><b>Services at a reasonable rate.</b></P><p align=center>(Title).</P>A,B., above-named plaintiff, states as follows:-</P>1. Between the ........ day of ........ 19 ........, and the day of ........ 19........, at ........ , plaintiff(executed sundry drawings, designs and diagrams) for the defendant, at his request; but no express agreement was made as to the sum to be paid for such services.</P>
2. The services were reasonably worth ........ rupees.</P>
3. The defendant has not paid the money.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 8</b></P><p align=center><b>Services and materials at a reasonable cost.</b></P><p align=center>(Title).</P>A.B., the above-mentioned named plaintiff, states as follows:-</P>1. On the ........ day of ........ 19 ........, at ........, the plaintiff built a house (known as No. ........, ........ in ........), and furnished the materials therefore, for the defendant, at his request, but no express agreement was made as to the amount to be paid for such work and materials.</P>
2. The work done and materials supplied were reasonably worth ........ rupees.</P>
3. The defendant has not paid the money.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 9</b></P><p align=center><b>Use and occupation</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, executor of the will of X. Y. deceased, states as follows:-</P>1. That the defendant occupied the (House No. ............., Street) by permission of the said X.Y., from the ............. day of ............. 19 ............. ,until the ............. day of ............. 19 ............., and no agreement was made as to payment for the use of the said premises.</P>
2. That the use of the said premises for the said period was reasonably worth ............. rupees.</P>
3.
The defendant has not paid the money.</P>[As in Paras 4 and 5 of Form No. 1.]</P>6. The plaintiff as executor of X.Y. claims (relief claimed).</P>
<p align=center><b>No. 10.</b></P><p align=center><b>On an award.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the ......... day of ......... 19 ........., the plaintiff and defendant, having a difference between them concerning (a demand of the plaintiff for the price of ten barrels of oil which the defendant refused to pay), agreed in writing to submit the difference to the arbitration of E.F. and G.H., and the original document is annexed hereto.</P>
2. On the ......... day of ......... 19 ......... , the arbitrators awarded that the defendant should (pay the plaintiff ......... rupees).</P>
3. The defendant has not paid the money.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 11.</b></P><p align=center><b>On a Foreign judgment.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows :-</P>1. On the ....... day of ....... 19 ......., at ....... in the State (or Kingdom) of the....... Court of that State (or Kingdom) in a suit therein pending between the plaintiff and the defendant, duly adjudged that the defendant should pay to the plaintiff ....... rupees, with interest from the said date.</P>
2. The defendant has not paid the money.</P>
[As in Paras 4 and 5 of Form No.1, and relief claimed.]</P><p align=center><b>No. 12.</b></P><p align=center><b>Against surety for payment of rent.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows :-</P>1.
On the ......... day of ......... 19 ........., E.F., hired from the</P>plaintiff for the term of ......... years, the (House No. ......... , Street), at</P>the annual rent of ......... rupees payable (monthly).</P>2. The defendant agreed, in consideration of the letting of the premises to E.F., to guarantee the punctual payment of the rent.</P>
3. The rent for the month of ......... 19 ......... amounting to ......... rupees, has not been paid.</P>
[If, by the terms of the agreement, notice is required to be given to the surety, add :-]</P>4. On the ......... day of ......... 19 ........., the plaintiff gave notice to the defendant of the non-payment of the rent, and demanded payment thereof.</P>
5. The defendant has not paid the same.</P>
[As in Paras 4 and 5 of Form No.1, and relief claimed.]</P><p align=center><b>No. 13.</b></P><p align=center><b>Breach of agreement to purchase land.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the ......... day of ......... 19 ........., the plaintiff and defendant entered into an agreement, and the original document is hereto annexed.</P>
(Or, on the ......... day of ......... 19 ......... , the plaintiff and defendant mutually agreed that the plaintiff should sell to the defendant and that the defendant should purchase from the plaintiff forty bighas of land in the village of ......... for ......... rupees).</P>2. On the ......... day of ......... 19 ........., the plaintiff being then the absolute owner of the property [and the same being free from all encumbrances as was made to appear to the defendant], tendered to the defendant a sufficient instrument of transfer of the same [or, was ready and willing, and is still ready and willing, and offered, to transfer the same to the defendant by a sufficient instrument) on the payment by the defendant of the sum agreed upon.</P>
3. The defendant has not paid the money.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 14.</b></P><p align=center><b>Not delivering goods sold.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the .......... day of .......... 19 .........., the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the plaintiff on the .......... day of .......... 19 .........., and that the plaintiff should pay therefor .......... rupees on delivery.</P>
2. On the [said] day the plaintiff was ready and willing, and offered, to pay the defendant the said sum upon delivery of the goods.</P>
3. The defendant has not delivered the goods, and the plaintiff has been deprived of the profits which would have accrued to him from such delivery.</P>
[As in Paras 4 and 5 of Form No.1, and relief claimed.]</P><p align=center><b>No. 15.</b></P><p align=center><b>Wrongful dismissal.</b></P><p class=center>(Title).</P>A.B., the above-named plaintiff, states as follows :-</P>1. On the .......... day of .......... 19 .........., the plaintiff and defendant mutually agreed that the plaintiff should serve the defendant as [an accountant, or in the capacity of foreman, or as the case may be], and that the defendant should employ the plaintiff as such for the term of [one year] and pay him for his services .......... rupees [monthly].</P>
2. On the .......... day of .......... 19 .........., the plaintiff entered upon the service of the defendant and has ever since been, and still is, ready and willing to continue in such service during the remainder of the said year whereof the defendant always has had notice.</P>
3. On the .......... day of .......... 19 .........., the defendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, or to pay him for his services.</P>
[As in Paras 4 and 5 of Form No.1, and relief claimed.]</P><p align=center><b>No. 16.</b></P><p align=center><b>Breach of contract to serve.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the ........... day of ........... 19 ..........., the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at an [annual] salary of ........... rupees, and that the defendant should serve the plaintiff as [an artist ] for the term of [one year].</P>
2. The plaintiff has always been ready and willing to perform his part of the agreement [and on the ........... day of........... 19 ..........., offered so to do.]</P>
3. The defendant (entered upon) the service of the plaintiff on the</P>
above-mentioned day, but afterwards on the ........... day of ........... 19 ..........., he refused to serve the plaintiff as aforesaid.</P>[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 17.</b></P><p align=center><b>Against a builder for defective workmanship.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows :-</P>1. On the ............ day of ............ 19 ............, the plaintiff and defendant entered into an agreement, and the original document is hereto annexed. (Or state the tenure of the contract).</P>
[2.The plaintiff duly performed all the conditions of the agreement on his part.]</P>3. The defendant [built the house referred to in the agreement in a bad and un-workman like manner.]</P>
[As in Paras 4 and 5 of Form No.1, and relief claimed.]</P><p align=center><b>No. 18.</b></P><p align=center><b>On a bond for the fidelity of a clerk.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the ............ day of ............ 19 ............, the plaintiff took E.F., into his employment as a clerk.</P>
2. In consideration thereof, on the ............ day of............ 19............ the defendant agreed with the plaintiff that if E.F. should not faithfully perform his duties as a clerk to the plaintiff, or should fail to account to the plaintiff for all moneys, evidences of debt or other property received by him for the use of the plaintiff, the defendant would pay to the plaintiff whatever loss he might sustain by reason thereof, not exceeding ............ rupees.</P>
[Or, 2. In consideration thereof, the defendant by his bond of the same date bound himself to pay the plaintiff the penal sum of ............ rupees, subject to the condition that E.F. should faithfully perform his duties as clerk and cashier to the plaintiff and should justly account to the plaintiff for all moneys, evidences of debt or other property which should be at any time held by in trust for the plaintiff, the bond should be void.]</P>[Or, 2. In consideration thereof, on the same date the defendant executed a bond in favour of the plaintiff, and the original document is hereto annexed.]</P>3. Between the ............ day of ............ 19 ............, and the ............ day of ............ 19 ............ , E.F., received money and other property, amounting to the value of ............ rupees, for the use of the plaintiff, for which sum he has not accounted to him, and the same still remains due and unpaid.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 19.</b></P><p align=center><b>By tenant against landlord, with special damage.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the .......... day of .......... 19 .........., the defendant by a registered instrument, let to the plaintiff [the House No. .........., .......... Street] for the term of .......... years, contracting with the plaintiff, that he, the plaintiff, and his legal representatives should quietly enjoy possession thereof for the said term.</P>
2. All conditions were fulfilled and all things happened necessary to entitle the plaintiff to maintain this suit.</P>
3. On the .......... day of .......... 19 .........., during the said term, E.F., who was the lawful owner of the said house, lawfully evicted the plaintiff therefrom, and still withholds the possession thereof from him.</P>
4. The plaintiff was thereby [prevented from continuing the business of a tailor at the said place, was compelled to expend .......... rupees in moving, and lost the custom of G.H., and I.J., by such removal.]</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 20.</b></P><p align=center><b>On an agreement of indemnity.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff , states as follows:-</P>1. On the .......... day of .......... 19 .........., the plaintiff and defendant, being partners in trade under the style of A.B. and C.D., dissolved the partnership, and mutually agreed that the defendant should take and keep all the partnership property, pay all debts of the firm and indemnify the plaintiff against all claims that might be made upon him on account of any indebtedness of the firm.</P>
2. The plaintiff duly performed all the conditions of the agreement on his part.</P>
3. On the .......... day of .......... 19 .........., [a judgment was recovered against the plaintiff and defendant by E.F., in the High Court of Judicature at .........., upon a debt due from the firm to E.F., and on the .......... day of .......... 19 ..........,] the plaintiff paid .......... rupees [in satisfaction of the same.]</P>
4. The defendant has not paid the same to the plaintiff.</P>
[As in Paras 4 and 5 of Form No.1, and relief claimed.]</P><p align=center><b>No. 21.</b></P><p align=center><b>Procuring property by fraud.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the ......... day of ......... 19 ........., the defendant, for the purpose of inducing the plaintiff to sell him certain goods, represented to the plaintiff that [he, the defendant, was solvent, and worth ......... rupees over all his liabilities.</P>
2. The plaintiff was thereby induced to sell [and deliver] to the defendant, [dry goods] of the value of ......... rupees.</P>
3. The said representations were false[ or state their particular false-hoods] and were then known by the defendant to be so.</P>
4. The defendant has not paid for the goods.[Or, if the goods were not delivered]. The plaintiff, in preparing and shipping the goods and procuring their restoration, expended ......... rupees.</P>
[As in Paras 4 and 5 of Form No.1, and relief claimed.]</P><p align=center><b>No. 22.</b></P><p align=center><b>Fraudulently procuring credit to be given to another person</b></P><p align=center>(Title)</P>A.B., the above named plaintiff, states as follows:-</P>1. On the .......... day of .......... 19 .........., the defendant represented to the plaintiff that E.F. was solvent and in good credit, and worth .......... rupees over all his liabilities [or that E.F. then held a responsible situation and was in good circumstances, and might safely be trusted with goods on credit.]</P>
2. The plaintiff was thereby induced to sell to E.F.[rice] of the value of .......... rupees [on .......... months credit.]</P>
3. The said representations were false and were then known by the defendant to be so, and were made by him with intent to deceive and defraud the plaintiff [or to deceive and injure the plaintiff.]</P>
4. E.F.[did not pay for the said goods at the expiration of the credit aforesaid, or] has not paid for the said rice, and the plaintiff has wholly lost the same.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 23.</b></P><p align=center><b>Polluting the water under the plaintiff's land</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:</P>1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain land called ............. and situate in ............. and of a well therein, and of water in the well, and was entitled to the use and benefit of the well and of the water therein, and to have certain springs and streams of water which flowed and ran into the well to supply the same to flow or run without being fouled or polluted.</P>
2. On the ............. day of ............. 19 ............., the defendant wrongfully fouled and polluted the well and the water therein and the springs and streams of water which flowed into the well.</P>
3. In consequence the water in the well became impure and unfit for domestic and other necessary purposes, and the plaintiff and his family are deprived of the use and benefit of the well and water.</P>
[As in Paras 4 and 5 of Form No. 1 and relief claimed]</P><p align=center><b>No. 24</b></P><p align=center><b>Carrying on a noxious manufacture</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. The plaintiff is, and at all the times hereinafter mentioned was, possessed of certain lands called ..........., situated in ........... .</P>
2. Ever since the ........... day of ........... 19 ..........., the defendant has wrongfully caused to issue from certain smelting works carried on by the defendant large quantities of offensive and unwholesome smoke and other vapours and noxious matter, which spread themselves over and upon the said lands, and corrupted the air, and settled on the surface of the lands.</P>
3. Thereby the trees, hedges, herbage and crops of the plaintiff growing on the land were damaged and deteriorated in value, and the cattle and livestock of the plaintiff on the lands became un-healthy, and many of them were poisoned and died.</P>
4. The plaintiff was unable to graze the lands with cattle and sheep as he otherwise might have done, and was obliged, to remove his cattle, sheep and farming-stock therefrom, and has been prevented from having so beneficial and healthy a use and occupation of the lands as he otherwise would have had.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed]</P><p align=center><b>No. 25.</b></P><p align=center><b>Obstructing a right of way.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. The plaintiff is, at the time hereinafter mentioned was, possessed of[a</P>
house in the village of.............].</P>2. He was entitled to a right of way from the [house] over a certain field to a public highway and back again from the highway over the field to the house, for himself and his servants [with vehicles, or on foot] at all times of the year.</P>
3. On the ............. day of ............. 19 ............., defendant wrongfully obstructed the said way, so that the plaintiff could not pass [with vehicles, or on foot, or in any manner] along with the way [and has ever since wrongfully obstructed the same.]</P>
4. (State special damage, if any.)</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 26.</b></P><p align=center><b>Obstructing a highway.</b></P><p align=center>(Title).</P>1. The defendant wrongfully dug a trench and heaped up earth and stones in the public highway leading from ............. to ............. so as to obstruct it.</P>
2. Thereby the plaintiff, while lawfully passing along the said highway, fell over the said earth and stones [or into the said trench] and broke his arm, and suffered great paid, and was prevented from attending to his business for a long time, and incurred expense for medical attendance.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 27.</b></P><p align=center><b>Diverting a water course.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. The plaintiff is, and at the time hereinafter mentioned was, possessed of a mill situated on a [stream] known as the ............. in the ............. village of ............. district of ............. .</P>
2. By reason of such possession the plaintiff was entitled to the flow of the stream from working the mill.</P>
3. On the ............. day of ............. 19............., the defendant, by cutting the bank of the stream, wrongfully diverted the water thereof, so that less water ran into the plaintiff's mill.</P>
4. By reason thereof the plaintiff has been unable to grind more than sacks per day , whereas, before the said diversion of water, he was able to grind sacks per day.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 28.</b></P><p align=center><b>Obstructing a right to use water for irrigation.</b></P><p align=center>(Title)</P>A.B., the above-named plaintiff, states as follows:-</P>1. Plaintiff is, and was at the time hereinafter mentioned, possessed of certain lands situate, etc, and entitled to take and use a portion of the water of a certain stream for irrigating the said lands.</P>
2. On the ............. day of ............. 19 ............., the defendant prevented the plaintiff from taking and using the said portion of the said water as aforesaid, by wrongfully obstructing and diverting the said stream.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 29.</b></P><p align=center>[<b>Injuries caused by negligence on a railroad.</b>]</P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows :-</P>1. On the ............. day of ............. 19 ............., the defendants were common carriers of passengers by railway between ............. and ............. .</P>
2. On that day the plaintiff was a passenger in one of the carriages of the defendants on the said railway.</P>
3. While he was such passenger, at .............[or near the station of ............. or between the stations of ............. and .............], a collision occurred on the said railway caused by the negligence and un-skill fullness of the defendant's servants, whereby the plaintiff was much injured [having his leg broken, his head cut, etc., and state the special damage, if any, as ], and incurred expense for medical attendance, and is permanently disabled from carrying on his former business as [a salesman.]</P>
[As in Paras 4 and 5 of Form No. 1, relief claimed.]</P>[Or thus:-2, On that day the defendants by their servants so negligently and unskillfully drove and managed an engine and a train of carriages attacked thereto upon and along the defendant's railway which the plaintiff was then lawfully crossing, that the said engine and train were driven and struck against the plaintiff, whereby, etc. as in para 3.]</P><p align=center><b>No. 30.</b></P><p align=center><b>Injuries caused in negligent driving.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. The plaintiff is a shoemaker, carrying on business at The defendant is a merchant of</P>
2. On the ............. day of ............. 19 ............., the plaintiff was walking southward along Chowringhee in the City of Calcutta, at about 3 o'clock in the afternoon. He was obliged to cross Middleton Street, which he is a street running into Chowringhee at right angles. While he was crossing this street, and just before he could reach the foot pavement on the further side thereof, a carriage of the defendant's drawn by two horses under the charge and control of the defendant's servants, was negligently, suddenly and without any warning turned at a rapid and dangerous pace out of Middleton Street into Chowringhee. The pole of the carriage struck the plaintiff and knocked him down, and he was much trampled by the horses.</P>
3. By the blow and fall and trampling the plaintiffs left arm was broken and he was bruised and injured on the side and back, as well as internally, and in consequence thereof the plaintiff was for four months ill and in suffering, and unable to attend to his business, and incurred heavy medical and other expenses, and sustained great loss of business and profits.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 31.</b></P><p align=center><b>For malicious-prosecution.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:</P>1. On the ............. day of ............. 19............., the defendant obtained a warrant of arrest from .............[a Magistrate of the said city, or as the case may be] on a charge of............., and the plaintiff was arrested thereon, and imprisoned for .............[days, or hours, and gave bail in the sum of ............. rupees to obtain his release.]</P>
2. In so doing the defendant acted maliciously and without reasonable or probable cause.</P>
3. On the ............. day of ............. 19 ............., the Magistrate dismissed the complaint of the defendant and acquitted the plaintiff.</P>
4. Many persons, whose names are unknown to the plaintiff, hearing of the arrest, and supposing the plaintiff to be a criminal, have ceased to do business with him; or in consequence of the said arrest, the plaintiff lost his situation as clerk to one E.F., or in consequence the plaintiff suffered pain of body and mind, was prevented from transacting his business, and was injured in his credit, and incurred expense in obtaining his release from the said imprisonment and in defending himself against the said complaint.</P>
[As in Paras 4 and 5 of Form No. 1, and relief claimed.]</P><p align=center><b>No. 32.</b></P><p align=center><b>Movables wrongfully detained.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. On the ............. day of ............. 19 ............., plaintiff owned [or state fact showing a right to the possession] the goods mentioned in the schedule hereto annexed [or describe the goods] the estimated value of which is ............. rupees.</P>
2. From that day until the commencement of this suit the defendant has detained the same from the plaintiff.</P>
3. Before the commencement of the suit, to wit, on the ............. day of ............. 19 ............., the plaintiff demanded the same from the defendant, but he refused to deliver them.</P>
[As in Paras 4 and 5 of Form No. 1.]</P>6. The plaintiff claims-</P>
1. On the ............. day of ............. 19............., the defendant C.D., for the purpose of inducing the plaintiff to sell him certain goods, represented to the plaintiff that [he was solvent, and worth ............. rupees over all his liabilities.]</P>
2. The plaintiff was hereby induced to sell and deliver to C.D.[one hundred boxes of tea], the estimated value of which is ............. rupees.</P>
3. The said representations were false, and were then known by C.D., to be so [or at the time of making the said representations, C.D. was insolvent, and knew himself to be so.]</P>
4. C.D. afterwards transferred the said goods to the defendant E.F. without consideration [or who had notice of the falsity of the representation.]</P>
[As in Paras 4 and 5 of Form No. 1.]</P>7. The plaintiff claims-</P>
1. On the ............. day of ............. 19............., the defendant represented to the plaintiff that a certain piece of ground belonging to the defendant situated at ............., contained (ten bighas).</P>
2. The plaintiff was thereby induced to purchase the same at the price of ............. rupees in the belief that the said representation was true, and signed an agreement of which the original is hereto annexed. But the land has not been transferred to him.</P>
3. On the ............. day of ............. 19 ............., the plaintiff paid the defendant ............. rupees as part of the purchase money.</P>
4. That the said piece of ground contained in fact only (five bighas).</P>
[As in Paras 4 and 5 of Form No. 1.]</P>7. The plaintiff claims-</P>
1. The plaintiff is the absolute owner of (Describe the property).</P>
2. The defendant is in possession of the same under a lease from the plaintiff.</P>
3. The defendant has (cut down a number of valuable trees, and threatens to cut down many more for the purpose of sale) without the consent of the plaintiff.</P>
[As in Paras 4 and 5 of Form No. 1]</P>6. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further waste on the said premises.</P>
[Pecuniary compensation may also be claimed].</P><p align=center><b>No. 36</b></P><p align=center><b>Injunction restraining nuisance.</b></P><p align=center>(Title)</P>A.B., the above-named plaintiff, states as follows:-</P>1. Plaintiff is, and at all the times hereinafter mentioned was, the absolute owner of (the House No. ............., Street, Calcutta).</P>
2. The defendant is, and at all the said times was, the absolute owner of (a plot of ground in the same Street.............).</P>
3. On the ............. day of ............. 19 ............., the defendant erected upon his said plot a slaughter-house, and still maintains the same; and from that day until the present time has continually caused cattle to be brought and killed there (and has caused the blood and offal to be thrown into the street opposite the said house of the plaintiff.</P>
[4. In consequence the plaintiff has been compelled to abandon the said house, and has been unable to rent the same.]</P>[As in Paras 4 and 5 of Form No. 1.]</P>7. The plaintiff claims that the defendant be restrained by injunction from committing or permitting any further nuisance.</P>
<p align=center><b>No. 37.</b></P><p align=center><b>Public nuisance.</b></P><p align=center>(Title).</P>A.B., the above-named plaintiff, states as follows:-</P>1. The defendant has wrongly heaped up earth and stones on a public road known as ............. Street at ............. so as to obstruct the passage of the public along the same and threatens and intends, unless restrained from so doing, to continue and repeat the said wrongful act.</P>
<SPAN class=amd2><A TITLE =]].[Not applicable where suit is instituted by the Advocate General.] [Substituted by Act XI of 1983, Section 87 w.e.f. 15-08-1983.][As in Paras 4 and 5 of Form No. 1.]5. The plaintiff claims
1. Plaintiff is, and at all times hereinafter mentioned was, the owner of (a portrait of his grand-father which was executed by an eminent painter), and of which no duplicate exists (or state any facts showing that the property is of a kind that cannot be replaced by money).
2. On the ............. day of ............. 19 ............., he deposited the same for safe-keeping with the defendant.
3. On the ............. day of 19 , he demanded the same from the defendant and offered to pay all reasonable charges for the storage of the same.
4. The defendant refuses to deliver the same to the plaintiff and threatened to conceal, dispose of, cut or injure the same if required to deliver it up.
5. No pecuniary compensation would be an adequate compensation to the plaintiff for the loss of the (painting).
[As in Paras 4 and 5 of Form No. 1.]8. The plaintiff claims-
1. Before the date of the claims hereinafter mentioned G.H. deposited with the plaintiff (describe the property) for (safe-keeping).
2. The defendant C.D. claims the same (under an alleged assignment thereof to him from G.H.)
3. The defendant E.F. also claims the same (under an order of G.H. transferring the same to him.)
4. The plaintiff is ignorant of the respective rights of the defendants.
5. He has no claim on the said property other than for charges and costs, and is ready and willing to deliver it to such persons as the Court shall direct.
6. The suit is not brought by collusion with either of the defendants.
[As in Paras 4 and 5 of Form No. 1.]9. The plaintiff claims-
1. E.F., late of ..........., was at the time of his death, and his estate still is, indebted to the plaintiff in the sum of [here insert nature of debit and security, if any.]
2. E.F., died on or about the ............. day of ............. .By his last will, dated the............. day of ............. he appointed C.D. his executor [or devised his estate in trust, etc., or died intestate, as the case may be.]
3. The will was proved by C.D.[or letters of administration were granted, etc.]
4. The defendant has possessed himself of the movable [and immovable, or proceeds of the immovable] property of E.F., and has not paid the plaintiff his debt.
[As in Paras 4 and 5 of Form No. 1.]7. The plaintiff claims that an account may be taken of the movable [and immovable] property of E.F., deceased, and that the same may be administered under the decree of the Court.
No. 42.Administration by specific legatee.1. A.B. of K. in the died on the ............. day of ............. By a last will, dated ............. day of ............., he appointed the defendant and M.N.[who died in the testator's lifetime] his executors, and bequeathed his property, whether movable or immovable, to his executors, in trust, to pay the rents and income thereof to the plaintiff for his life; and after his decease, and in default of his having a son who should attain twenty-one or a daughter who should attain that age or marry, upon trust as to his immovable property for the person who would be the testator's heir-at-law, and as to his movable property for the persons who would be the testator's next-of-kin if he had died intestate at the time of the death of the plaintiff, and such failure of his issue as aforesaid.
2. The will was proved by the defendant on the day of ............. The plaintiff has not been married.
3. The testator was at his death entitled to movable and immovable property; the defendant entered into the receipt of the rents of the immovable property and got in the movable property; he has sold some part of the immovable property.
[As in Paras 4 and 5 of Form No. 1.]6. The plaintiff claims-
1. He is one of the trustees under an instrument of settlement bearing date on or about the ............ day of ............ made upon the marriage of E.F. and G.H., the father and mother of the defendant [or an instrument of transfer of the estate and effects of E.F. for the benefit of C.D., the defendant, and the other creditors of E.F.]
2. A.B. has taken upon himself the burden of the said trust, and is in possession of For of the proceeds of] the movable and immovable property transferred by the said instrument.
3. C.D. claims to be entitled to a beneficial interest under the instrument.
[As in Paras 4 and 5 of Form No. 1.]6. The plaintiff is desirous to account for all the rents and profits of the said immovable property [and the proceed of the sale of the said, or of part of the said, immovable property, or movable, or the proceeds of the sale of, or of part of, the said movable property, or the profits accruing to the plaintiff as such trustee in the execution of the said trust]; and he prays that the Court will take the accounts of the said trust, and also that the whole of the said trust estate may be administered in the Court for the benefit of C.D. the defendant, and all other persons who may be interested in such administration in the presence of C.D. and such other person so interested as the Court may direct, or that C.D. may show good cause to the contrary.
[N.B. - Where the suit is by a beneficiary, the plaint may be modeled, mutatis mutandis, on the plaint by a legatee.]No. 45Foreclosure or sale.1. The plaintiff is mortgagee of lands belonging to the defendant.
2. The following are the particulars of the mortgagee:
3. The plaintiff took possession of the mortgaged property on the ............ Day of and is ready to account as mortgagee in possession from that time.]
[As in Paras 4 and 5 of Form No. 1.]6. The plaintiff claims-
1. The plaintiff is mortgagor of lands of which the defendant is mortgagee.
2. The following are the particulars of the mortgage:
3. The defendant has taken possession [or has received the rents] of the mortgaged property.
[As in Paras 4 and 5 of Form No.1]6. The plaintiff claims to redeem the said property and to have the same reconveyed to him [and to have possession thereof [together with mesne profits)] [Added by Act XI of 1983 s.87 w.e.f. 15-08-1983.]
No. 47.Specific performance (No.1).1. By an agreement dated the ............. day of ............. and signed by the defendant, he contracted to by of [or sell to ] the plaintiff certain immovable property therein described and referred to, for the sum of ............. rupees.
2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.[As in Paras 4 and 5 of Form No. 1.]
6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property and to pay the costs of the suit.
No. 48.Specific Performance (No. 2)1. On the .......... day of .......... 19 .........., the plaintiff and defendant entered into an agreement, in writing, and the original document is hereto annexed.
The defendant was absolutely entitled to the immovable property described in the agreement.2. On the .......... day of .......... 19 .........., plaintiff tendered .......... rupees to the defendant, and demanded a transfer of the said property by a sufficient instrument.
3. On the .......... day of .......... 19 .........., plaintiff again demand such transfer [or the defendant refused to transfer the same to the plaintiff.]
4. The defendant has not executed any instrument of transfer.
5. The plaintiff is still ready and willing to pay the purchase money of the said property to the defendant.
[As in Paras 4 and 5 of Form No. 1.]8. The plaintiff claims-
1. He and C.D., the defendant, have been for .......... years (or months) past carrying on business together under articles of partnership in writing [or under a deed, or under a verbal agreement.]
2. Several disputes and difference have arisen between the plaintiff and defendant as such partners whereby it has become impossible to carry on the business in partnership with advantage to the partners.[Or the defendant has committed the following breaches of the partnership articles:-
5. The plaintiff claims-
1. The defendant did not order the goods.
2. The goods were not delivered to the defendant.
3. The price was not Rs.
5. Except as to Rs........... 2.
same as7. The defendant for [or A.B., the defendant's agent] satisfied to claim by before suit to the plaintiff [or to C.D., the plaintiff's agent] on the ......... day of ......... 19 .........
8. The defendant satisfied the claim by payment after suit to the plaintiff on the ......... day of ......... 19 ......... .
No. 2.Defence in suits on bonds.1. The bond is not the defendant's bond.
2. The defendant made payment to the plaintiff on the day according to the condition of the bond.
3. The defendant made payment to the plaintiff after the day named and before suit of the principal and interest mentioned in the bond.
No. 3.Defence in suit on guarantees.1. The principal satisfied the claim by payment before suit.
2. The defendant was released by the plaintiff giving time to the principal debtor in pursuance of a binding agreement.
No. 4.Defence in any suit for debt.1. As to Rs. 200 of the money claimed, the defendant is entitled to set off for goods sold and delivered by the defendant to the plaintiff. Particulars are as follows:-
| Rs. | |||||
| 1907, January, 25th | .... | .... | .... | .... | 150 |
| February, 1st | .... | .... | .... | .... | 50 |
| Total .... | 200 |
2. As to the whole [or as to Rs. ............., Part of the money claimed] the defendant made tender before suit of Rs. ............. and has paid the same into Court.
No. 5.Defence in suits for injuries caused by negligent driving.1. The defendant denies that the carriage mentioned in the plaint was the defendant's carriage, and that it was under the charge or control of the defendant's servants. The carriage belonged to .......... of .......... Street, Calcutta, livery stable keepers employed by the defendant to supply him with carriages and horses; and the person under whose charge and control the said carriage was, was the servant of the said.
2. The defendant does not admit that the said carriage was turned out of Middleton Street either negligently, suddenly or without warning, or at a rapid or dangerous pace.
3. The defendant says the plaintiff might and could, by the exercise of reasonable care and diligence, have seen the said carriage approaching him, and avoided any collision with it.
4. The defendant does not admit the statements contained in the third paragraph of the plaint.
No. 6.Defence in all suits for wrongs.1. Denial of the several acts [or matters] complained of.
No. 7.Defence in suits for detention of goods.1. The goods were not the property of the plaintiff.
2. The goods were detained for a lien to which the defendant was entitled.
Particulars are as follows:-1907.
, May 3rd. To carriage of the goods claimed from Delhi to Calcutta:- 45 maunds at Rs. 2 per maund ............ Rs. 90No. 8Defence in suits for infringement of copyright.1. The plaintiff is not the author (assignee, etc.)
2. The book was not registered.
3. The defendant did not infringe.
No. 9.Defence in suits for infringement of trade mark.1. The trade mark is not the plaintiffs.
2. The alleged trade mark is not a trade mark.
3. The defendant did not infringe.
No. 10.Defences in suits relating to nuisance.1. The plaintiff's lights are not ancient [or deny his other alleged prescriptive rights.]
2. The plaintiffs lights will not be materially interfered with by the defendant's buildings.
3. The defendant denies that he or his servants pollute the water [or do what is complained of.]
[If the defendant claims the right by prescription or otherwise to do .w hat is complained of, he must say so, and must state the grounds of the claim, i.e. whether by prescriptions grant or what.]4. The plaintiff has been guilty of laches of which the following are particulars:
1870. Plaintiff's mill began to work.
1871. Plaintiff came into possession.
1888. First complaint.
5. As to the plaintiffs claim for damages the defendant will rely on the above grounds of defence, and says that the acts complained of have not produced any damage to the plaintiff.[If other grounds are relied on, they must be stated, e.g. limitation as to past damage.]
No. 11.Defence to suit for foreclosure.1. The defendant did not execute the mortgage.
2. The mortgage was not transferred to the plaintiff.[If more than one transfer is alleged, say which is denied.]
3. The suit is barred by article ............ of the second schedule to the Limitation Act, 1995.
4. The following payments have been made, viz:-
| Rs. | ||||
| (Insert date)-, | ... | ... | ... | 1000 |
| (Insert date)-, | ... | ... | ... | 500 |
5. The plaintiff took possession on the ..........., and has received the rents ever since.
6. The plaintiff released the debt on the .............. of ..............
7. The defendant transferred all his interest to A.B. by a document, dated ...........
No. 12.Defence to suit for redemption .1. The plaintiffs right to redeem is barred by article ................... of the second schedule to the Limitation Act, 1995.
2. The plaintiff transferred all interest in the property to A.B.
3. The defendant, by a document dated the ............. day of .............. transferred all his interest in the mortgage debt and property comprised in the mortgage to A.B.
4. The defendant never took possession of the mortgaged property, or received the rents thereof.
[If the defendant admits possession for a time only, he should state the time and deny possession beyond what he admits.]No. 13Defence to suit for specific performance.1. The defendant did not enter into the agreement.
2. A.B. was not the agent of the defendant (If alleged by plaintiff.)
3. The plaintiff has not performed the following conditions (Conditions.)
4. The defendant did not-(alleged acts of part performance.)
5. The plaintiffs title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matter-(state why.)
6. The agreement is uncertain in the following respects-(state them.)
7. (Or) The plaintiff has been guilty of delay.
8. (Or) The plaintiff has been guilty of fraud (or misrepresentation.)
9. (Or) The agreement is unfair.
10. (Or) The agreement was entered into by mistake.
11. The following are particulars of (7), (8),(9),(10) (or as the case may be.)
12. The agreement was rescind under Conditions of Sale, No. 11 (or) by mutual agreement.
(In case where damages are claimed and the defendant disputes his liability to damages, he must deny the agreement or the alleged breaches, or show whatever other ground of defence he intends to rely on e.g. the Limitation Act accord and satisfaction, release, fraud, etc.).No. 14.Defence in administration suit by pecuniary legatee.1. A.B., will contain a charge of debts; he died insolvent; he was entitled at his death to some immovable property which the defendant sold and which produced the net sum of Rs. ............., and the testator had some movable property which the defendant got in and which produced the net sum of Rs. ...........
2. The defendant applied the whole of the said sums and the sum of Rs. ............. which the defendant received from rents of the immovable property in the payment of the funeral and testamentary expenses and some of the debts of the testator.
3. The defendant made up his accounts and sent a copy thereof to the plaintiff on the ......... day of ......... 19 ......... , and offered the plaintiff free access to the vouchers to verify such accounts, but he declined to avail himself of the defendant's offer.
4. The defendant submits that the plaintiff ought to pay the costs of this suit.
No. 15.Probate of will in solemn form.1. The said will and codicil of the deceased were not duly executed.
2. The deceased at the time the said will and codicil respectively purport to have been executed, was not of sound-mind, memory and understanding.
3. The execution of the said will and codicil was obtained by the undue influence of the plaintiff and others acting with him whose names are at present unknown to the defendant.]
4. The execution of the said will and codicil was obtained by the fraud of the plaintiff, such fraud so far as is within the defendant's present knowledge, being [state the nature of the fraud.]
5. The deceased at the time of the execution of the said will and codicil did not know and approve of the contents thereof [or of the contents of the residuary clause in the said will, as the case may be.]
6. The deceased made his true last will, dated the 1st January, 1873, and thereby appointed the defendant sole executor thereof.
The defendant claims:-2. If you admit the claim; you should pay the money into Court, together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
No. 2Summons for settlement of issues. (R.5 rr.1, 5.)2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.
No. 3.Summons to appear in person.(O.5, r. 3.)(Title)To[Name, description and place of residence.]Whereas........... has instituted a suit against you for ........... you are hereby summoned to appear in this Court in person on the ........... day of ........... 19 ........... at ........... O'clock in the ........... noon, to answer the claim; and you are directed to produce on that day all the documents upon which you intend to rely in support of your defence.Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.Given under my hand and the seal of the Court, this day ........... of ........... 19 ...........Judge.[No. 4. [Form 4 substituted by Act XI of 1983, section 88(w.e.f. 15-8-1983).]Summons in a summary suit.(Order XXXVII, rule 2.)(Title).To(Name, description and place of residence)Whereas.......... has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, Svt. 1977, for Rs. .......... and interest, you are hereby summoned to cause an appearance to be entered for you, within ten days from the service hereof, in default whereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rupees .......... and the sum of Rupees .......... for costs, together with such interest if any, as the Court may order.If you cause an appearance to be entered for you, the plaintiff will thereafter serve upon you a summons for judgment at the hearing of which you will be entitled to move the Court for leave to defend the suit.Leave to defend may be obtained if you satisfy the Court by an affidavit or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend.Given under my hand and the seal of the Court, this day of .......... 19 .......... .Judge] [Inserted by Act XI of 1983, Section 67 w.e.f. 15-08-1983.][No. 4-A. [Form 4-A inserted by Act XI of 1983, section 89 (w.e.f. 15-08-1983).][Inserted by Act XI of 1983, section 89]Summons for judgment in a summary suit.(Order XXXVII, rule 3).(Title).In the ........... Court, at ........... Suit No. ........... of 19XYZ PlaintiffVersusABC DefendantUpon reading the affidavit of the plaintiff the Court makes the following order, namely:-Let all parties concerned attend the Court or Judge, as the case may be, on the......... day of ......... 19 ........., at ......... O'clock in the forenoon on the hearing of the application of the plaintiff that he be at liberty to obtain judgment in this suit against the defendant (or if against one or some or several, insert names) for Rupees ......... and for interest and costs.Dated ......... day of ......... 19 .........] [Rule 43-A inserted by Act XI of 1983, section 66(w.e.f. 15-08-1983).]No. 5.Notice to person who, the Court considers, should be added as Co-plaintiff. (O.1.r.10.).(Title).To[Name, description and place of residence.]Whereas ........... has instituted the above a suit against ........... for ........... and, whereas it appears necessary that you should be added as a plaintiff in the said suit in order to enable the Court effectually and completely to adjudicate upon and settle all the question involved;Take notice that you should on or before the ............ day of ............ 19 ............, signify to this Court whether you consent to be so added.Given under my hand and the seal of the Court, this day of ............ 19 ............Judge.No. 6.Summons to legal representative of a deceased defendant.(O.22,r.4).(Title).ToWhereas the plaintiff ............ instituted a suit in this Court on the ............ day ............ of ............ 19 ............, against the defendant who has since deceased, and whereas the said plaintiff has made an application to this Court alleging that you are the legal representative of the said ............ deceased, and desiring that you be made the defendant in his stead;You are hereby summoned to attend in this Court on the ............ day of ............ 19 ............, at ............ A.M. to defend the said suit and, in default of your appearance on the day specified the said suit will be heard and determined in your absence.Given under my hand and the seal of the Court, this day ............ of ............ 19 ............Judge.No. 7.Order for transmission of summons for service in the jurisdiction of another Court. (O.5, r.21.).(Title).Whereas it is stated that ............ defendant /witness in the above suit is at present residing in ............; It is ordered that a summons returnable on the ............ day of ............ 19............, be forwarded to the ............ Court of ............ for service on the said defendant/witness with a duplicate of this proceeding.The Court-fee of ............ chargeable in respect to the summons has beenrealized in this Court in Stamps.Dated ............ 19 ............Judge.No. 8.Order for transmission of summons to be served on a prisoner.(O.5, r.24.).(Title).ToThe Superintendent of the Jail at ............... under the provisions of Order V, rule 24, of the Code of Civil Procedure, 1977 a summons in duplicate is herewith forwarded for service on the defendant............... who is ............... a prisoner in jail. You are requested to cause a copy of the s aid summons to be served upon the said defendant and to return the original to this Court signed by the said defendant, with a statement of service endorsed thereon by you.JudgeNo. 9.Order for transmission of summons to be served on a public servant or soldier. (O.5, rr.27,28.)(Title).ToUnder the provisions of Order V, rule 27(or 28 , as the case may be.), of the Code of Civil Procedure, 1977, a summons in duplicate is herewith forwarded for service on the defendant.......... who is stated to be serving under you. You are requested to cause a copy of the said summons to be served upon the said defendant and to return the original to this Court signed by the said defendant with a statement of service endorsed thereon by you.Judge.No. 10.To accompany returns of summons of another Court. (0.5,r.23.).(Title).Read proceeding from the ............ forwarding ............ for service on ............ in Suit No. ............ of ............ 19 of that Court.Read serving Officer's endorsement stating that the ............ and proof of the above having been duly taken by me on the oath of ............ and ............ it is ordered that the ............ be returned to the with a copy of this proceeding.Judge.Note. - This form will be applicable to process other than summons, the service of which may have to be effected in the same manner.No. 11.Affidavit of process-server to accompany return of a summons or notice. (O.5, r.18.)The Affidavit of ....................., son of ..................... I ..................... make oath/affirm and says as follows :-3. One ......... accompanied me to and there pointed out to me ......... which he said was the house in which ......... ordinarily resides. I did not find the said ......... there.
(a) (b) (a)Enter fully and exactly the manner in which the process was served, with special reference to Order 5, rule 15 and 17.or,If substituted service has been ordered, state fully and exactly the manner in which the summons was served with special reference to the terms of the order for substituted service.Sworn/Affirmed by the said ......... before me this ......... day of ......... 19.........Empowered under section 139 of the Code of Civil Procedure, 1977, to administer the oath to deponents.No. 12.Notice to defendant.(O.9.r.6.)(Title).To(Name, description and place of residence).Whereas this day was fixed for the hearing of the above suit and a summons was issued to you and the plaintiff has appeared in this Court and you did not so appear, but from the return of the Nazir it has been proved to the satisfaction of the Court that said summons was served on you but not in sufficient time to enable you to appear and answer on the day fixed in the said summons ;Notice is hereby given to you that the hearing of the suit is adjourned this day and that the ........ day of ........ 19 ........, is now fixed for the hearing of the same; in default of your appearance on the day last mentioned the suit will be heard and determined in your absence.Given under my hand and the seal of the Court, this ........ day of ........ 19........JudgeNo. 13.Summons to witness. (O.16,rr.1,5.)(Title).ToWhereas your attendance is required to ............. on behalf of the ............. in the above suit, you are hereby required [personally] to appear before this Court on the ............. day of ............. 19 ............., at ............. O'clock in the forenoon, and to bring with you [or to send to this Court.]A sum of Rs. ............., being your travelling and other expenses and subsistence allowance for one day, is herewith sent. If you fail to comply with this order without lawful excuse, you will be subject to the consequences of non-attendance laid down in rule 12 of Order XVI of the Code of Civil Procedure 1977.Given under my hand and the seal of the Court, this day of ........ 19 .............Judge.Notice. (1) If you are summoned only to produce a document and not to give evidence, you shall be deemed to have complied with the summons if you cause such document to be produced in this Court on the day and ....... hour aforesaid.1. Did not, etc.
2. Has not etc.
etc., ............... etc., ............... etc. ...............[The defendant E.F. is required to answer the interrogatories numbered ...............].[The defendant G.H. is required to answer the interrogatories numbered ...............].No. 3.Answer to Interrogatories. (O.11, r.9).(Title as in No. 1, supra).The answer of the above-named defendant E.F. to the interrogatories for his examination by the above-named plaintiff.In answer to the said interrogatories, I, the above-named E.F. make oath and say as follows:-1. Enter answer to interrogatories in paragraphs numbered consecutively.
2.
3. I object to answer the interrogatories numbered on the ground that ..........[state grounds of objection.]
No. 4.Order for affidavit as to documents. (O.11,r.13.).(Title as in No. 1, supra.)Upon hearing ......... . It is ordered that the......... do within ......... days from the date of this order, answer on affidavit stating which documents are or have been in his possession or power relating to the matter in question in this suit, and that the costs of this application be ......... .No. 5.Affidavit as to documents. (O.11, r.13).(Title as in No. 1, supra).I, the above-named defendant C.D. make oath and say as follows:1. I have in my possession or power the documents relating to the matters in question in this suit set forth in the first and second parts of the first schedule hereto.
2. I object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection.]
3. I have had, but have not now, in my possession or power the documents relating to the matters in question in this suit set forth in the second schedule hereto.
4. The last-mentioned documents were last in my possession or power on (state when and what has become of them and in whose possession they now are.).
5. According to the best of my knowledge, information and belief I have not now, and never had, in my possession, custody or power, or in the possession, custody or power of my pleader or agent, or in the possession, custody or power of any other person on my behalf, any account, book of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit or any of them, or wherein any entry has been made relative to such matters or any of them, other than and except the documents set forth in the said first and second schedules hereto.
No. 6.Order to produce documents for inspection. (O.11, r.14)(Title as in No. 1, supra.).Upon hearing ......... and upon reading the affidavit of ......... filed the ......... day of ......... 19 ......... . It is ordered that the ......... do, at all reasonable times, on reasonable notice, produce at ........., situate at ........., the following documents, namely, ........., and that the ......... be at liberty to inspect and peruse the documents so produced, and to make notes of their contents. In the meantime it is ordered that all further proceedings be stayed and that the costs of this application be.No. 7.Notice to produce documents. (O.11,r.16).(Title as in Form No. 1, supra).Take notice that the (plaintiff or defendant) requires you to produce for his inspection the following documents referred to in your [plaint or written statement or affidavit, dated the .......... day of.......... 19 ..........].[Describe documents required.]X.Y. Pleader for theTo Z. Pleader for theNo. 8.Notice to Inspect documents. (O.11,r.17).(Title as in No. 1, supra).Take notice that you can inspect the documents mentioned in your notice of the ....... day of ....... 19 ......., [Except the documents numbered ....... in that notice] at [insert place of inspection] on Thursday next, the ....... instant, between the hours of 12 and 4 O'clock. Or, that the [plaintiff or defendant] objects to giving you inspection of documents mentioned in your notice of the ....... day of ....... 19 ......., on the ground that [state the ground.]No. 9.Notice to admit documents (O.12,r.3).(Title as in No. 1, supra).Take notice that the plaintiff (or defendant ) in this suit proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant (or plaintiff) his pleader or agent, at ........ on ........ between the hours of ........; and the defendant [or plaintiff], is hereby required, within forty-eight hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed or executed, as they purport respectively to have been; that such as are specified as copies are true copies; and such documents as are stated to have been served, sent or delivered were so served, sent or delivered, respectively saving all just exceptions to the admissibility of all such documents as evidence in this suit.G.H., pleader [or agent] for plaintiff.[or defendant.]To E.F., pleader [or agent for defendant [or plaintiff][Here describe the documents and specify as to each document whether it is original or a copy.]No. 10.Notice to admit facts. (O.12, r.5).(Title as in No. 1, supra).Take notice that the plaintiff [or defendant ] in this suit requires the defendant (or plaintiff) to admit, for the purposes of this suit only, the several facts respectively hereunder specified; and the defendant [or plaintiff] is hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this suit.G.H., Pleader [or agent] for plaintiff [or defendant].To E.F., Pleader [or agent] for defendant [or plaintiff].The facts, admission of which is required are1. That M. died on the 1st January, 1890.
2. That he died intestate.
3. That N. was his only lawful son.
4. That O. died on the 1st April, 1896.
5. That O. was never married.
No. 11.Admission of facts pursuant to notice.(O.12, r.5).(Title as in No. 1, supra).The defendant [or plaintiff ] in this suit, for the purposes of this suit only, hereby admits the several facts respectively hereunder specified, subject to the qualifications or limitations, if any, hereunder specified saving all just exceptions to the admissibility of any such facts, or any of them, as evidence in this suit:Provided that this admission is made for the purposes of this suit only, and is not an admission to be used against the defendant [or plaintiff] on any other occasion or by any one other than the plaintiff [or defendant], or party requiring the admission.]E.F., Pleader [or agent] for defendant [or plaintiff].To G.H., Pleader [or agent ] for plaintiff [or defendant].| Facts admitted | Qualification or limitations, if any subject towhich they are admitted. | ||
| 1. | That M. Died on 1.1.1890 | 1. | |
| 2. | That he died intestate | 2. | |
| 3. | That N. was lawful son. | 3. | But not that he was his only lawful son. |
| 4. | That O. died. | 4. | But not that he died on 1.4.1896 |
| 5. | That O. was never married. | 5. |
| Plaintiff | Defendant | |||
| Rs. P. | Rs. P. | |||
| 1. | Stamp for plaint | Stamp for power | ||
| 2. | Do for power | Do for petition | ||
| 3. | Do for exhibits | Pleader's fee | ||
| 4. | Pleader's fee on Rs. | Subsistence for witness | ||
| 5. | Subsistence for witnesses | |||
| 6. | Commissioner's fee | |||
| 7. | Service of process | |||
| Total | Total |
| Plaintiff | Defendant | |||
| Rs. P. | Rs. P. | |||
| 1. | Stamp for plaint | Stamp for power | ||
| 2. | Do for power | Do for petition | ||
| 3. | Do for exhibits | Pleader's fee | ||
| 4. | Pleader's fee on Rs. | Subsistence for witness | ||
| 5. | Subsistence for witnesses | |||
| 6. | Commissioner's fee | |||
| 7. | Service of process | |||
| Total | Total |