Code of Civil Procedure, 1908
In every enactment
or notification passed or issued before the commencement of this Code in which reference is made to or
to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the
same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, section or rule.
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THE FIRST SCHEDULE
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ORDER I
Parties to Suits
[1. Who may be joined as plaintiffs.—All persons may be joined in one suit as plaintiffs where—
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise.]
2. Power of Court to order separate trial.—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 the 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 where—
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist against such persons, whether jointly, severally or in the alternative;
and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.]
[3A. Power to order separate trials where joinder of defendants may embarrass or delay trial.—Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of
the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.]
4. Court may give judgment for or against one or more of joint parties.—Judgment may be given without any amendment —
(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief
as he or they may be entitled to;
(b) against such one or more of the defendants as may be found to be liable, according to their respective liabilities.
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 persons 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.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the
plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal
service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction
shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation.—For the purpose of determining whether the persons who sue or are sued, or defend,
have the same interest in one suit, it is not necessary to establish that such persons have the same cause
of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.]
[8A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings.— While trying a suit, the Court may, if satisfied that a person or body of persons is interested in
any question of law which is directly and substantially in issue in the suit and that it is necessary in the public
interest to allow that person or body of persons to present his or its opinion on that question of law, permit that
person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify.]
9. Misjoinder 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.]
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 bona fide
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.
(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either
upon or without the application of either party, and on such terms as may appear to the Court to be just,
order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and
that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose
3. The proviso added by, ibid., s. 52 (w.e.f. 1-2-1977).
presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall,
unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies
of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the
original defendant
(5) Subject to the provisions of the
[Indian Limitation Act, 1877 (XV of 1877)], section 22, the
proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
[10A. Power of Court to request any pleader to address it.—The Court may, in its discretion,
request any pleader to address it as to any interest which is likely to be affected by its decision on any
matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader.]
11. Conduct of suit.—The Court may give the conduct of
[a suit] to such persons 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 authorized by any other of them to appear, plead or
act for such other in any proceeding; and in like manner, where there are more defendants than one, any
one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.
13. Objections as 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.
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ORDER II
Frame of suit
1. 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 and portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in respect
of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
1. See now the Limitation Act, 1963 (36 of 1963), s. 21.
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.
Illustration A lets a house to B at a yearly of rent 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.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the 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—
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part
thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is
held; and
(c) claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
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.]
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 objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
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ORDER III
Recognized Agents and Pleaders
1. Appearances, etc., may be in person, by recognized agent or by pleader.—Any appearance,
application or act in or to any Court, required or authorized 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
[appearing, applying or acting, as the case may be,]
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 recognised agents of parties by whom such appearances, applications and acts may be made or done are—
(a) persons holding powers-of-attorney, authorising them to make and do such appearances,
applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the
local limits of the jurisdiction of the Court within which limits the appearance, application or act is
made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts.
3. Service of process on recognised agent.—(1) Processes served on the recognised 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.
(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognised agent.
[4. Appointment of pleader.—(1) No pleader shall act for any person in any Court, unless he has been
appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be
[filed in Court and shall, for the purposes of sub-rule (1), be]
deemed to be in force until determined with the leave of the Court by a writing signed by the client or the
pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.
[Explanation. —For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,—
(a) an application for the review of decree or order in the suit,
(b) an application under section 144 or under section 152 of this Code, in relation to any decree or
order made in the suit,
(c) an appeal from any decree or order in the suit, and
(d) any application or act for the purpose of obtaining copies of documents or return of
documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.]
[(3) Nothing in sub-rule (2) shall be construed—
(a) as extending, as between the pleader and his client, the duration for which the pleader is
engaged, or
(b) as authorising service on the pleader of any notice or document issued by any Court other than
the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).]
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed
is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in court a memorandum of appearance signed by himself and stating—
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to appear:
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.]
5. Service of process on pleader.—
[Any process served on the pleader who has been duly
appointed to act in Court for any party] 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.
(2) Appointment to be in writing and to be filed in Court.—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.
[(3) The Court may, at any stage of the suit, order any party to the suit not having a recognised agent
residing within the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court
on his behalf, to appoint, within a specified time, an agent residing within the jurisdiction of the Court to accept service of the process on his behalf.]
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ORDER IV
Institution of suits
1. Suit to be commenced by plaint.—(1) Every suit shall be instituted by presenting
[plaint in duplicate to the Court] or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
[(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2)].
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.
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ORDER V
Issue and service of summons
Issue of Summons
1. 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:
Provided that no such summons shall be issued when a defendant has appeared at the presentation of
plaint and admitted the plaintiff’s 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 same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]
*[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.]
(2) A defendant to whom a summons has been issued under sub-rule (1) may appear—
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such questions.
(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.
[2. Copy of plaint annexed to summons.—Every summon shall be accompanied by a copy of the plaint.]
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.
(2) Where the Court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance.
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—
(a) within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the
place where he resides and the place where the Court is situate) less than two hundred miles distance from the court-house.
5. Summons to be either to settle issues 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] 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] 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 that 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 subordinates or to such courier services as are approved by the Court.
(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct.
(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post
acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the Court referred to in sub-rule (1) or
by any other means of transmission of documents (including fax message or electronic mail service) provided
by the rules made by the High Court:
Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.
(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction
of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply.
(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is
received by the Court or postal article containing the summons is received back by the Court with an
endorsement purporting to have been made by a postal employee or by any person authorised by the courier
service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when
tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly
served on the defendant:
Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the
acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).
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.
(2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or
tendering to the defendant personally a copy thereof signed by the Judge or such officer of the Court as he may
appoint in this behalf and sealed with the seal of the Court or by such mode of service as is referred to in sub-rule (3) of rule 9.
(3) The provisions of rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.
(4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgment of
service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.]
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.
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.
13. Service on agent by whom defendant carries on business.—(1) In a suit relating to any
business or work against a person who does not reside within the local limits of the jurisdiction of the
Court from which the summons is issued, service on any manager or agent, who, at the time of service,
personally carries on such business or work for such person within such limits, shall be deemed good service.
(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or charterer.
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 his at his residence and there is no likelihood of his being found at the residence within a reasonable
time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.
Explanation. —A servant is not a member of the family within the meaning of this rule.]
16. Person served to sign acknowledgment.—Where the serving officer delivers or tenders a copy
of the 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 acknowledgment 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 acknowledgment, 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] 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 when 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 enquiry 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.
19A. [Simultaneous issue of summons for service by post in addition to personal service.]
Omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999, s. 15 (w.e.f. 1-7-2002).
[(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper,
the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.]
(2) Effect of substituted service.—Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed.—Where service is substituted by
order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.
[20A. Service of summons by post.] Rep. by the Code of Civil Procedure (Amendment) Act, 1976
(104 of 1976), s. 55 (w.e.f. 1-2-1977)].
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, whether within or without the State, 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] to any Court (not being the High Court) having jurisdiction in the place where the defendant resides.
22. Service within presidency towns of summons issued by Courts outside.—Where a summons
issued by any Court established beyond the limits of the towns of Calcutta, Madras
[and Bombay] is to
be served within any such limits, it shall be sent to the Court of Small Causes within whose jurisdiction it is to be served.
23. Duty of Court to which summons is sent.—The Court to which a summons is sent under rule 21 or
rule 22 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 regard thereto.
24. Service on defendant in prison.—Where the defendant is confined in a prison, the summons
shall be delivered or sent
[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] to the officer in charge of the prison for service on the defendant.
25. Service where defendant resides out of India and has no agent.—Where the defendant resides
out of
[India] and has no agent in
[India] empowered to accept service, the summons shall be addressed
to the defendant at the place where he is residing and sent to him
[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], if there is postal communication between such
place and the place where the Court is situate:
[Provided that where any such defendant
[resides in Bangladesh or Pakistan], the summons,
together with a copy thereof, may be sent for service on the defendant, to any Court in that country (not
being the High Court) having jurisdiction in the place where the defendant resides :
Provided further that where any such defendant is a public officer
[in Bangladesh or Pakistan (not
belonging to the Bangladesh or, as the case may be, Pakistan military, naval or air forces)] or is a servant
of a railway company or local authority in that country, the summons, together with a copy thereof, may
be sent for service on the defendant, to such officer or authority in that country as the Central Government may by notification in the Official Gazette, specify in this behalf.]
[26. Service in foreign territory through Political Agent or Court.—Where—
(a) in the exercise of any foreign jurisdiction vested in the Central Government, a Political Agent
has been appointed, or a Court has been established or continued, with power to serve a summons,
issued by a Court under this Code, in any foreign territory in which the defendant actually and
voluntarily resides, carries on business or personally works for gain, or
(b) the Central Government has, by notification in the Official Gazette, declared in respect of
any Court situate in any such territory and not established or continued in the exercise of any such
jurisdiction as aforesaid, that service by such Court of any summons issued by a Court under this
Code shall be deemed to be valid service,
the summons may be sent to such Political Agent or Court, by post, or otherwise, or if so directed by the
Central Government, through the Ministry of that Government dealing with foreign affairs, or in such
other manner as may be specified by the Central Government for the purpose of being served upon the
defendant; and, if the Political Agent or Court returns the summons with an endorsement purporting to
have been made by such Political Agent or by the Judge or other officer of the Court to the effect that the
summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.
26A. Summonses to be sent to officers to foreign countries.—Where the Central Government has, by
notification in the Official Gazette, declared in respect of any foreign territory that summonses to be served
on defendants actually and voluntarily residing or carrying on business or personally working for gain in that
foreign territory may be sent to an officer of the Government of the foreign territory specified by the Central
Government, the summonses may be sent to such officer, through the Ministry of the Government of India
dealing with foreign affairs or in such other manner as may be specified by the Central Government; and if
such officer returns any such summons with an endorsement purporting to have been made by him that the summons has been served on the defendant, such endorsement shall be deemed to be evidence of service].
27. Service on civil public officer or on servant of railway company or local authority.—Where
the defendant is a public officer (not belonging to the
[the Indians] military
[naval or air] forces
***),
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, sailors or airmen.—Where the defendant is a soldier,
[sailor]
[or airman],
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 acknowledgment of the defendant, and such signature shall be deemed to be evidence of service.
(2) Where from any cause service is impossible, the summons shall be returned to the Court with a
full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-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.
(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in a summons, and, subject to the provisions of sub-rule (3), shall be treated in all respects as a summons.
(3) A letter so substituted may be sent to the defendant by post or by a special messenger selected by
the Court, or in any other manner which the Court thinks fit; and, where the defendant has an agent empowered to accept service, the letter may be delivered or sent to such agent.
______
ORDER VI
Pleadings generally
1. Pleading.—“Pleading” shall mean plaint or written 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.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.]
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.
*[3A. Forms of pleading in Commercial Courts.––In a commercial dispute, where forms of
pleadings have been prescribed under the High Court Rules or Practice Directions made for the purposes of such commercial disputes, pleadings shall be in such forms.]
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.
5. [Further and better statement, or particulars.] Omitted by the Code of Civil Procedure
(Amendment) Act, 1999 (46 of 1999), s. 16 (w.e.f. 1-7-2002).
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, fradulent 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 authorized by him to sign the same or to sue or defend on
his behalf
[14A. Address for service of notice.—(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.
(2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition.
(3) The address furnished in the statement made under sub-rule (1) shall be called the “registered
address” of the party, and shall, until duly changed as aforesaid, be deemed to be the address of the party
for the purpose of service of all processes in the suit or in any appeal from any decree or order therein
made and for the purpose of execution, and shall hold good, subject as aforesaid, for a period of two years after the final determination of the cause or matter.
(4) Service of any process may be effected upon a party at his registered address in all respects as though such party resided thereat.
(5) Where the registered address of a party is discovered by the Court to be incomplete. false or fictitious, the Court may, either on its own motion, or on the application of any party, order—
(a) in the case where such registered address was furnished by a plaintiff, stay of the suit, or
(b) in the case where such registered address was furnished by a defendant, his defence be
struck out and he be placed in the same position as if he had not put up any defence
.
(6) Where a suit is stayed or a defence is struck out under sub-rule (5), the plaintiff or, as the case may be,
the defendant may, after furnishing his true address, apply to the Court for an order to set aside the order of stay or, as the case may be, the order striking out the defence.
(7) The Court, if satisfied that the party was prevented by any sufficient cause from filing the true address
at the proper time, shall set aside the order of stay or order striking out the defence, on such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit or defence, as the case may be.
(8) Nothing in this rule shall prevent the Court from directing the service of a process at any other address, if, for any reason, it thinks fit to do so.]
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.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
[(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
*[15A. Verification of pleadings in a commercial dispute.— (1) Notwithstanding anything contained in
Rule 15, every pleading in a commercial dispute shall be verified by an affidavit in the manner and form prescribed in the Appendix to this Schedule.
(2) An affidavit under sub-rule (1) above shall be signed by the party or by one of the parties to the
proceedings, or by any other person on behalf of such party or parties who is proved to the satisfaction of the Court to be acquainted with the facts of the case and who is duly authorised by such party or parties.
(3) Where a pleading is amended, the amendments must be verified in the form and manner referred to in sub-rule (1) unless the Court orders otherwise.
(4) Where a pleading is not verified in the manner provided under sub-rule (1), the party shall not be permitted to rely on such pleading as evidence or any of the matters set out therein.
(5) The Court may strike out a pleading which is not verified by a Statement of Truth, namely, the affidavit set out in the Appendix to this Schedule.]
[16. Striking out pleadings.—The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading—
(a) which may be unnecessary, scandalous, frivolous or vexatious, of
(b) which may tend to prejudice, embarrass or delay the fair trail of the suit, or
(c) which is otherwise an abuse of the process of the Court.]
[17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall
be made as may be necessary for the purpose of determining the real questions in controversy between the
parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the
Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
18. Failure to amend after Order.—If a party who has obtained an order for leave to amend does not
amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then
within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such
limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.]
______
ORDER VII
Plaint
1. Particulars to be contained in plaint.—The plaint shall contain the following particulars:—
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that
effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed, or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.
2. In money suits.—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.]
*[2A. Where interest is sought in the suit. — (1) Where the plaintiff seeks interest, the plaint shall contain a statement to that effect along with the details set out under sub-rules (2) and (3).
(2) Where the plaintiff seeks interest, the plaint shall state whether the plaintiff is seeking interest in
relation to a commercial transaction within the meaning of section 34 of the Code of Civil Procedure,
1908 (5 of 1908) and, furthermore, if the plaintiff is doing so under the terms of a contract or under an Act, in which case the Act is to be specified in the plaint; or on some other basis and shall state the basis of that.
(3) Pleadings shall also state—
(a) the rate at which interest is claimed;
(b) the date from which it is claimed;
(c) the date to which it is calculated;
(d) the total amount of interest claimed to the date of calculation; and
(e) the daily rate at which interest accrues after that date.]
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. Grounds 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.]
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 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 on 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.]
2. The proviso added by s. 57, ibid. (w.e.f. 1-2-1977).
10. Return of plaint.—(1)
[ Subject to the provisions of rule 10A, the plaint shall] 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.]
(2) Procedure on returning plaint. —On returning a plaint, the Judge shall endorse thereon the
date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.
[10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.—(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff.]
(2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to thc Court—
(a) specifying the Court in which he proposes to present the plaint after its return,
(b) praying that the Court may fix a date for the appearance of the parties in the said Court, and
(c) requesting that the notice of the date so fixed may be given to him and to the defendant.
(3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before
returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,—
(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to
be presented, and
(b) give to the plaintiff and to the defendant notice of such date for appearance.
(4) Where the notice of the date for appearance is given under sub-rule (3),—
(a) it shall not be necessary for the Court in which the plaint is presented after its return, to
serve the defendant with a summons for appearance in the suit, unless that Court, for reasons to be
recorded, otherwise directs, and
(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the
Court in which the plaint is presented on the date so fixed by the Court by which the plaint was returned.
(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall not be entitled to appeal against the order returning the plaint.
10B. 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 the plaint, direct
plaintiff to file the plaint, subject to the provisions of the Limitation Act, 1963 (36 of 1963), 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.
1. This rule has been applied to suits for the recovery of rent under the Chota Nagpur Tenancy Act, 1908 (Ben. 6 of 1908) s. 265.
(2) The direction made by the Court under sub-rule (1) shall be without any prejudice to the rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try the suit.]
11. Rejection of plaint.— The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
[(e) where it is not filed in duplicate;]
[(f) where the plaintiff fails to comply with the provisions of rule 9:]
[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]
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.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or
to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.]
15. [Statement in case of documents not in plaintiff possession or powers.] omitted by Act 46 of 1999
s. 17 (w.e.f. 1-7-2002).
16. Suits on lost negotiable instruments.—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 Bankers' Books Evidence Act, 1891 (XVIII of 1891), where the document on which the plaintiff sues is 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.
(2) Original entry to be marked and returned.—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.
18. [Inadmissibility of document not produced when plaint filed.] omitted by Act 22 of 2002, s. 8
(w. e. f. 1-7-2002).
______
ORDER VIII
[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 within the said period of thirty days, he shall
be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]
*[Provided 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.]
[1A. Duty of defendant to produce documents 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) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
[(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to documents—
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.]
2. New facts must be specially pleaded.—The defendant must raise by his pleading all matters which show the
suit not 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 facts 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 before the Commercial Division of the High Court or the Commercial Court.— (1) Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of this Rule.
(2) The defendant in his written statement shall state which of the allegations in the particulars of plaint he
denies, which allegations he is unable to admit or deny, but which he requires the plaintiff to prove, and which allegations he admits.
(3) Where the defendant denies an allegation of fact in a plaint, he must state his reasons for doing so and if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version.
(4) If the defendant disputes the jurisdiction of the Court he must state the reasons for doing so, and if he is able, give his own statement as to which Court ought to have jurisdiction.
(5) If the defendant disputes the plaintiff’s valuation of the suit, he must state his reasons for doing so, and if he is able, give his own statement of the value of the suit.]
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 sum 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)] 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 Rule 3A of this Order, shall be taken to be admitted except as against a person under disability.]
[(2) Where the defendant has not filed a pleading, it shall be lawful for the court to pronounce
judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]
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, presents a written statement containing the particulars of the debt sought to be set-off.
(2) Effect of set-off.—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.
(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.
Illustrations
(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administration to B's effects, C pays Rs, 1,000 as surety for D; then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000
against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of the Rs. 1,000.
(b) A dies intestate and in debt to B. C takes out administration to A’s effects and B buys part of the effects from C.
In a suit for the purchase-money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as representative to A.
(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off.
(d) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. The two claims being both definite pecuniary demands may be set-off.
1. Rule 5 renumbered as sub-rule (I) by Act 104 of 1976, s. 58 (w.e.f. 1-2-1977).
(e) A sues B for compensation on account of trespass. B hold a promissory note for Rs. 1,000 from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so, for, as soon as A recovers, both sums are definite pecuniary demands.
(f) A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone.
(g) A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A.
(h) A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving. A sues C for a debt for Rs. 1,500 due in his separate character. C may set-off the debt of Rs. 1,000.
[6A. Counter-claim by defendant.—(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any
right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before
or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for
damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pro-
nounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.
6B. Counter-claim to be stated.— Where any defendant seeks to rely upon any ground as support-
ing a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.
6C. Exclusion of counter-claim.—Where a defendant sets up a counter-claim and the plaintiff con-
tends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an indepen-
dent 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.
6D. Effect of discontinuance of suit.— If in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.
6E. 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.
6F. 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 may be. the Court may give judgment to the party entitled to such balance.
6G. Rules relating to written statement to apply.—The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.]
7. Defence or set-off founded upon separate grounds.—Where the defendant relies upon several distinct grounds of defence or set-off
[or counter-claim] 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
[or counter-claim] may be raised by the defendant or plaintiff, as the case may be, in his written statement.
8A. [Duty of defendant to produce documents upon which relief is claimed by him.] omitted by Act
46 of 1999, s. 18 (w.e.f. 1-7-2002).
[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.
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:]
*[Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.]
______
ORDER IX
Appearance of parties and consequence of non-appearance
1. 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 plaintiff's failure to pay costs.—Where on the day so fixed it is found that 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.]
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], 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 unserved, fails for
[seven days] to apply for fresh summons. —
[(1) Where after a summons has been issued to the defendant, or to one of
several defendants, and returned unserved, the plaintiff fails, for a period of
[seven days] from the date of
the 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 has 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.]
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.
6. Procedure when only plaintiff appears.—(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then—
[(a) When summons duly served.—if it is proved that the summons was duly served, the Court
may make an order that the suit shall be heard ex parte;]
(b) When summons not duly served.—if it is not proved that the summons was duly served, the
Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time.—if it is proved that the summons was served
on the defendant, but not 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.
(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
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 a 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 dis-
missed 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.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
10. Procedure in case of non-attendance of one or more of several plaintiff's.—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 plaintiff’s appearing, permit the suit to proceed in the same way as if all the plaintiff’s 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 provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do not appear.
Setting aside Decrees ex parte
13. 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 from 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 than 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 the plaintiff's claim.]
[Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and
the appeal has been disposed of an 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.]
14. No decree to be set aside without notice to opposite party.—No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.
ORDER X
Examination of parties by the court
1. Ascertainment whether allegations in pleadings are admitted or denied.—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.
[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.]
[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 matters 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.
1. The proviso added by Act 104 of 1976, s. 59 (w.e.f. 1-2-1977).
2. Explanation ins. by s. 59, ibid. (w.e.f. 1-2-1977).
(2) At any subsequent hearing, the Court may orally examine any party appearing in person or
present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.]
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] and direct that such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.
______
ORDER XI
Discovery and Inspection
1. Discovery by interrogatories.—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 any one 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 person 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 also 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.
2. Particular interrogatories to be submitted.—On an application for leave to deliver interrogatories,
the particular interrogatories proposed to be delivered shall be submitted to the Court
[and that court shall decide within seven days from the day of filing of the said application]. In deciding upon such application,
the Court shall take into account any offer, which may be made by the party sought to be interrogated to
deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or
any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.
3. Costs of interrogatories.—In adjusting the costs of the suit inquiry shall at the instance of any
party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing
officer or of the Court, either with or without an application for inquiry, that such interrogatories have
been exhibited unreasonably, vexatiously, or at improper length, the cost occasioned by the interrogatories and the answers thereto shall be paid in any even by the party in fault.
4. Form of interrogatories.—Interrogatories shall be in Form No. 2 in Appendix C, with such variations as circumstances may require.
5. Corporations.—Where any party to a suit is a corporation or a body of persons, whether
incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any
officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.
6. Objections to interrogatories by answer.—Any objection to answering any interrogatory on the
ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the
matters inquired into are not sufficiently material at that stage,
[or on the ground of privilege or any other ground], may be taken in the affidavit in answer.
1. This rule is not applicable to the Chief Court of Oudh, see the Oudh Court Act, 1925 (U.P. 4 of 19
.
25), s. 16(2).
7. Setting aside and striking out interrogatories.—Any interrogatories may be set aside on the
ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they
are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories.
8. Affidavit in answer, filing.—Interrogatories shall be answered by affidavit to be filed within ten days or within such other time as the Court may allow.
9. Form of affidavit in answer.—An affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C, with such variations as circumstances may require.
10. No exception to be taken.—No exceptions shall be taken to any affidavit in answer, but the
sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court.
11. Order to answer or answer further.—Where any person interrogated omits to answer, or
answer insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the Court may direct.
12. Application for discovery of documents.—Any party may, without filing any affidavit, apply to
the Court for an order directing any other party to any suit to make discovery on oaths, of the documents which are or have been in his possession or power, relating to any matter in question therein. On the
hearing of such application the Court may either refuse or adjourn the same, if satisfied that such
discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally
or limited to certain classes of documents, as may, in its discretion be thought fit: Provided that
discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
13. Affidavit of documents.—The affidavit to be made by a party against whom such order as is
mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require.
14. Production of documents.—It shall be lawful for the Court, at any time during the pendency of
any suit, to order the production by any party thereto, upon oath, of such of the documents in his
possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.
15. Inspection of documents referred to in pleadings or affidavits.—Every party to a suit shall be
entitled
[at or before the settlement of issues] to give notice to any other party, in whose pleadings or
affidavits reference is made to any document,
[or who has entered any document in any list annexed to
his pleadings,] to produce such document for the inspection of the party giving such notice, or of his
pleader, and to permit him or them to take copies thereof; and any party not complying with such notice
shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless
he shall satisfy the Court that such document relates only to his own title, he being a defendant to the
suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying
with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.
16. Notice to produce.—Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require.
17. Time for inspection when notice given.—The party to whom such notice is given shall, within
ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within
three days from the delivery thereof at which the documents, or such of them as he does not object to
produce, may be inspected at the office of his pleader, or in the case of bankers' books or other books of
account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No. 8 in Appendix C; with such variations as circumstances may require.
18. Order for inspection.—(1) Where the party served with notice rule 15 omits to give such notice
of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of
his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such
place and in such manner as it may think fit: Provided that the order shall not be made when and so far as
the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars
or affidavit of the party against whom the application is made or disclosed in his affidavit of documents,
shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The
Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
19. Verified copies.—(1) Where inspection of any business books is applied for, the Court may, if it
thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be
furnished and verified by the affidavit of some person who has examined the copy with the original
entries, and such affidavit shall state whether or not there are in the original book any and what erasures,
interlineations or alterations: Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.
(2) Where on an application for an order for inspection privilege is claimed for any document, it shall
be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim
of privilege
[unless the document relates to matters of State.]
(3) The Court may, on the application of any party to suit at any time, and whether an affidavit of
documents shall or shall not have already been ordered or made, make an order requiring any other
party to state by affidavit whether any one or more specific documents, to be specified in the
application, is or are, or has or have at any time been, in his possession or power; and, if not then in his possession, when he parted with the same and what has become thereof. Such application shall be
made on an affidavit stating that in the belief of the deponent the party against whom the application
is made has, or has at some time had in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the suit, or to some of them.
20. Premature discovery.—Where the party from whom discovery of any kind or inspection is
sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or
inspection sought depends on the determination of any issue or question in dispute in the suit, or that for
any other reason it is desirable that any issue or question in dispute in the suit should be determined
before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.
21. Non-compliance with order for discovery.—
[(1)] Where any party fails to comply with any order to
answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his
suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be
2. R u l e 2 1 r e n u m b e r e d a s s u b - r u l e (1) b y s . 6 1 , i b i d . ( w . e . f . 1 - 2 - 1 9 . 7 7 ) .
placed in the same position as if he had not defended, and the party interrogating or seeking discovery or
inspection may apply to the Court for an order to that effect and
[an order may be made on such
application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.]
[(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.]
22. Using answer to interrogatories at trial.—Any party may, at the trial of a suit, use in evidence
any one or more of the answers or any part of an answer of the opposite party to interrogatories without
putting in the others or the whole of such answer : Provided always that in such case the Court may look
at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last-mentioned answer ought not to be used without them, it may direct them to be put in.
23. Order to apply to minors.—This Order shall apply to minor plaintiffs and defendants, and to the next friends and guardians for the suit of persons under disability.
______
*[ORDER XI
Disclosure, Discovery and inspection of documents in suits before the commercial division of a high
court or a commercial court
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 to 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 plaintiff’s 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) The list of documents filed with the plaint shall specify whether the documents in the power,
possession, control or custody of the plaintiff are originals, office copies or photocopies and the list shall
also set out in brief, details of parties to each document, mode of execution, issuance or receipt and line of custody of each document.
(3) The plaint shall contain a declaration on oath from the plaintiff that all documents in the power,
possession, control or custody of the plaintiff, pertaining to the facts and circumstances of the proceedings
initiated by him have been disclosed and copies thereof annexed with the plaint, and that the plaintiff does not have any other documents in its power, possession, control or custody.
Explanation.––A declaration on oath under this sub-rule shall be contained in the Statement of Truth as set out in the Appendix.
(4) In case of urgent filings, the plaintiff may seek leave to rely on additional documents, as part of
the above declaration on oath and subject to grant of such leave by Court, the plaintiff shall file such
additional documents in Court, within thirty days of filing the suit, along with a declaration on oath that
the plaintiff has produced all documents in its power, possession, control or custody, pertaining to the
facts and circumstances of the proceedings initiated by the plaintiff and that the plaintiff does not have any other documents, in its power, possession, control or custody.
(5) The plaintiff shall not be allowed to rely on documents, which were in the plaintiff’s power,
possession, control or custody and not disclosed along with plaint or within the extended period set out
above, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint.
(6) The plaint shall set out details of documents, which the plaintiff believes to be in the power,
possession, control or custody of the defendant and which the plaintiff wishes to rely upon and seek leave for production thereof by the said defendant.
(7) The defendant 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 written statement or with its counter-
claim if any, including—
(a) the documents referred to and relied on by the defendant in the written statement;
(b) the documents relating to any matter in question in the proceeding in the power, possession,
control or custody of the defendant, irrespective of whether the same is in support of or adverse to the
defendant’s defence;
(c) nothing in this Rule shall apply to documents produced by the defendants and relevant only––
(i) for the cross-examination of the plaintiff’s witnesses,
(ii) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or
(iii) handed over to a witness merely to refresh his memory.
(8) The list of documents filed with the written statement or counterclaim shall specify whether the
documents, in the power, possession, control or custody of the defendant, are originals, office copies or
photocopies and the list shall also set out in brief, details of parties to each document being produced by the defendant, mode of execution, issuance or receipt and line of custody of each document.
(9) The written statement or counterclaim shall contain a declaration on oath made by the deponent
that all documents in the power, possession, control or custody of the defendant, save and except for those set out in sub-rule (7) (c) (iii) pertaining to the facts and circumstances of the proceedings initiated by the
plaintiff or in the counterclaim, have been disclosed and copies thereof annexed with the written
statement or counterclaim and that the defendant does not have in its power, possession, control or custody, any other documents.
(10) Save and except for sub-rule (7) (c) (iii), defendant shall not be allowed to rely on documents,
which were in the defendant’s power, possession, control or custody and not disclosed along with the
written statement or counterclaim, save and except by leave of Court and such leave shall be granted only upon the defendant establishing reasonable cause for non-disclosure along with the written statement or counterclaim.
(11) The written statement or counterclaim shall set out details of documents in the power,
possession, control or custody of the plaintiff, which the defendant wishes to rely upon and which have not been disclosed with the plaint, and call upon the plaintiff to produce the same.
(12) Duty to disclose documents, which have come to the notice of a party, shall continue till disposal of the suit.
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 any one 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.
(2) On an application for leave to deliver interrogatories, the particular interrogatories proposed to be
delivered shall be submitted to the court, and that court shall decide within seven days from the day of
filing of the said application, in deciding upon such application, the court shall take into account any
offer, which may be made by the party sought to be interrogated to deliver particulars, or to make
admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be
given as to such only of the interrogatories submitted as the court shall consider necessary either for disposing fairly of the suit or for saving costs.
(3) In adjusting the costs of the suit inquiry shall at the instance of any party be made into the
propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the court,
either with or without an application for inquiry, that such interrogatories have been exhibited
unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.
(4) Interrogatories shall be in the form provided in Form No. 2 in Appendix C to the Code of Civil Procedure, 1908, (5 of 1908) with such variations as circumstances may require.
(5) Where any party to a suit is a corporation or a body of persons, whether incorporated or not,
empowered by law to sue or be sued, whether in its own name or in the name of any officer of other
person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.
(6) Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or
not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently
material at that stage, or on the ground of privilege or any other ground may be taken in the affidavit in answer.
(7) Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or
vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous and any application for this purpose may be made within seven days after service of the interrogatories.
(8) Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the court may allow.
(9) An affidavit in answer to interrogatories shall be in the form provided in Form No. 3 in
Appendix C to the Code of Civil Procedure, 1908, (5 of 1908), with such variations as circumstances may require.
(10) No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the court.
(11) Where any person interrogated omits to answer, or answers insufficiently, the party interrogating
may apply to the court for an order requiring him to answer, or to answer further, as the case may be, and
an order may be made requiring him to answer, or to answer further, either affidavit or by viva voce examination, as the court may direct.
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 counterclaim, whichever is later. The Court may extend this time limit upon application at its discretion, but not beyond thirty days in any event.
(2) Any party to the proceedings may seek directions from the Court, at any stage of the proceedings,
for inspection or production of documents by the other party, of which inspection has been refused by such party or documents have not been produced despite issuance of a notice to produce.
(3) Order in such application shall be disposed of within thirty days of filing such application, including filing replies and rejoinders (if permitted by Court) and hearing.
(4) If the above application is allowed, inspection and copies thereof shall be furnished to the party seeking it, within five days of such order.
(5) No party shall be permitted to rely on a document, which it had failed to disclose or of which inspection has not been given, save and except with leave of Court.
(6) The Court may impose exemplary costs against a defaulting party, who wilfully or negligently
failed to disclose all documents pertaining to a suit or essential for a decision therein and which are in
their power, possession, control or custody or where a Court holds that inspection or copies of any documents had been wrongfully or unreasonably withheld or refused.
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.
(2) The statement of admissions and denials shall set out explicitly, whether such party was admitting or denying:—
(a) correctness of contents of a document;
(b) existence of a document;
(c) execution of a document;
(d) issuance or receipt of a document;
(e) custody of a document.
Explanation.––A statement of admission or denial of the existence of a document made in accordance with sub-rule (2) (b) shall include the admission or denial of the contents of a document.
(3) Each party shall set out reasons for denying a document under any of the above grounds and bare
and unsupported denials shall not be deemed to be denials of a document and proof of such documents may then be dispensed with at the discretion of the Court.
(4) Any party may however submit bare denials for third party documents of which the party denying
does not have any personal knowledge of, and to which the party denying is not a party to in any manner whatsoever.
(5) An Affidavit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement.
(6) In the event that the Court holds that any party has unduly refused to admit a document under any of the above criteria, – costs (including exemplary costs) for deciding on admissibility of a document may be imposed by the Court on such party.
(7) The Court may pass orders with respect to admitted documents including for waiver of further proof thereon or rejection of any documents.
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.
(2) Notice to produce such document shall be issued in the Form provided in Form No. 7 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908).
(3) Any party or person to whom such notice to produce is issued shall be given not less than seven
days and not more than fifteen days to produce such document or to answer to their inability to produce such document.
(4) The Court may draw an adverse inference against a party refusing to produce such document after issuance of a notice to produce and where sufficient reasons for such non-production are not given and order costs.
6. Electronic records. — (1) In case of disclosures and inspection of Electronic Records (as defined
in the Information Technology Act, 2000 (21 of 2000)), furnishing of printouts shall be sufficient compliance of the above provisions.
(2) At the discretion of the parties or where required (when parties wish to rely on audio or video
content), copies of electronic records may be furnished in electronic form either in addition to or in lieu of printouts.
(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall specify––
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic
record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email ids, details of ownership, custody and access to such email ids;
(f) in case of documents stored on a computer or computer resource (including on external servers
or cloud), details of ownership, custody and access to such data on the computer or computer
resource;
(g) deponent’s knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or storing such
document or data was functioning properly or in case of malfunction that such malfunction did not
affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource.
(4) The parties relying on printouts or copy in electronic form, of any electronic records, shall not be
required to give inspection of electronic records, provided a declaration is made by such party that each such copy, which has been produced, has been made from the original electronic record.
(5) The Court may give directions for admissibility of Electronic Records at any stage of the proceedings.
(6) Any party may seek directions from the Court and the Court may of its motion issue directions for
submission of further proof of any electronic record including metadata or logs before admission of such electronic record.
7. Certain provisions of the Code of Civil Procedure, 1908 not to apply.—For avoidance of doubt,
it is hereby clarified that Order XIII Rule 1, Order VII Rule 14 and Order VIII Rule 1A of the Code of
Civil Procedure, 1908 (5 of 1908) shall not apply to suits or applications before the Commercial Divisions of High Court or Commercial Courts.]
______
ORDER XII
Admissions
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] days from the date of service of the notice any document,] saving all 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.
[2A. Document 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.
(2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the
notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.]
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.
[3A. Power of Court to record admission.—Notwithstanding that no notice to admit documents
has been given under rule 2, the Court may, at any stage of the proceeding before it, of its own motion,
call upon any party to admit any document and shall, in such a case, record whether the party admits or refuses or neglects to admit such document.]
4. Notice to admit acts.—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:
*
5. Form of admissions.—A notice to admit facts shall be in Form No. 10 in Appendix C, and admission 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.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.]
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 evidenced of such admissions, if evidence thereof is required.
8. Notice to produce documents.—Notice to produce documents shall be in Form No. 12 in 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.
3. Second proviso omitted by Act 46 of 1999, s. 22 (w.e.f. 1-7-2002).
9. Costs.—If a notice to admit or produce specifies documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.
______
ORDER XIII
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) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory.]
2. [Effect of non-production of documents.] Rep. by the Code of Civil Procedure (Amendment) Act, 1999
(46 of 1999) s. 23 (w.e.f. 1-7-2002).
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.
(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has
been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon 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 Bankers' Books Evidence Act, 1891 (XVIII of 1891) where a document admitted in evidence in the suit is an entry in a letter-book or a 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.
(2) Where such a document is an entry in a public record produced from a public office or by a public
officer, or an entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced, the Court may require a copy of the entry to be furnished—
(a) where the record, book or account is produced on behalf of a party, then by that party, or
(b) where the record, book or account is produced in obedience to an order of the Court acting of its own motion, then by either or any party.
(3) Where a copy of an entry is furnished under the foregoing provisions of this rule, the Court shall, after
causing the copy to be examined, compared and certified in manner mentioned in rule 17 of Order VII, mark the entry and cause the book, account or record in which it occurs to be returned to the person producing it.
6. Endorsements on documents rejected an inadmissible in evidence.—Where a document relied
on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of rule 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 documents 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.
(2) Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them.
8. Court may order any document to be impounded.—Notwithstanding anything contained in rule
5 or rule 7 of this Order or in rule 17 of Order VII, 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 documents.—(1) Any person, whether a party to the suit or not, desirous of
receiving back any documents 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 then that prescribed by this rule if the person applying therefor—
(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 with, by force of the decree, has become wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.
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.
(2) Every application made under this rule shall (unless the Court otherwise directs) be supported
by an affidavit showing how the record is material to the suit in which the application is made, and
that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of
the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.
(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit.
11. Provisions as to documents applied to material objects.—The provisions therein contained as to documents shall, so far as may be, apply to all other material objects producible as evidence.
______
*[ORDER XIII-A
Summary Judgment
1. Scope of and classes of suits to which this Order applies. —(1) This Order sets out the
procedure by which Courts may decide a claim pertaining to any Commercial Dispute without recording oral evidence.
(2) For the purposes of this Order, the word “claim” shall include—
(a) part of a claim;
(b) any particular question on which the claim (whether in whole or in part) depends; or
(c) a counterclaim, as the case may be.
(3) Notwithstanding anything to the contrary, an application for summary judgment under this Order
shall not be made in a suit in respect of any Commercial Dispute that is originally filed as a summary suit under Order XXXVII.
2. Stage for application for summary judgment.—An applicant may apply for summary judgment
at any time after summons has been served on the defendant:
Provided that, no application for summary judgment may be made by such applicant after the Court has framed the issues in respect of the suit.
3. Grounds for summary judgment.—The Court may give a summary judgment against a plaintiff or defendant on a claim if it considers that––
(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real
prospect of successfully defending the claim, as the case may be; and
(b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.
4. Procedure.—(1) An application for summary judgment to a Court shall, in addition to any other matters the applicant may deem relevant, include the matters set forth in sub-clauses (a) to (f) mentioned hereunder:—
(a) the application must contain a statement that it is an application for summary judgment made
under this Order;
(b) the application must precisely disclose all material facts and identify the point of law, if any;
(c) in the event the applicant seeks to rely upon any documentary evidence, the applicant must,––
(i) include such documentary evidence in its application, and
(ii) identify the relevant content of such documentary evidence on which the applicant relies;
(d) the application must state the reason why there are no real prospects of succeeding on the
claim or defending the claim, as the case may be;
(e) the application must state what relief the applicant is seeking and briefly state the grounds for seeking such relief.
(2) Where a hearing for summary judgment is fixed, the respondent must be given at least thirty days’
notice of:—
(a) the date fixed for the hearing; and
(b) the claim that is proposed to be decided by the Court at such hearing.
(3) The respondent may, within thirty days of the receipt of notice of application of summary
judgment or notice of hearing (whichever is earlier), file a reply addressing the matters set forth in clauses
(a) to (f) mentioned hereunder in addition to any other matters that the respondent may deem relevant:—
(a) the reply must precisely––
(i) disclose all material facts;
(ii) identify the point of law, if any; and
(iii) state the reasons why the relief sought by the applicant should not be granted;
(b) in the event the respondent seeks to rely upon any documentary evidence in its reply, the respondent must—
(i) include such documentary evidence in its reply; and
(ii) identify the relevant content of such documentary evidence on which the respondent
relies;
(c) the reply must state the reason why there are real prospects of succeeding on the claim or
defending the claim, as the case may be;
(d) the reply must concisely state the issues that should be framed for trial;
(e) the reply must identify what further evidence shall be brought on record at trial that could not
be brought on record at the stage of summary judgment; and
(f) the reply must state why, in light of the evidence or material on record if any, the Court should not proceed to summary judgment.
5. Evidence for hearing of summary judgment.—(1) Notwithstanding anything in this Order, if the
respondent in an application for summary judgment wishes to rely on additional documentary evidence during the hearing, the respondent must:—
(a) file such documentary evidence; and
(b) serve copies of such documentary evidence on every other party to the application at least fifteen days prior to the date of the hearing.
(2) Notwithstanding anything in this Order, if the applicant for summary judgment wishes to rely on documentary evidence in reply to the defendant’s documentary evidence, the applicant must:—
(a) file such documentary evidence in reply; and
(b) serve a copy of such documentary evidence on the respondent at least five days prior to the date of the hearing.
(3) Notwithstanding anything to the contrary, sub-rules (1) and (2) shall not require documentary evidence to be:—
(a) filed if such documentary evidence has already been filed; or
(b) served on a party on whom it has already been served.
6. Orders that may be made by Court.—(1) On an application made under this Order, the Court may make such orders that it may deem fit in its discretion including the following:—
(a) judgment on the claim;
(b) conditional order in accordance with Rule 7 mentioned hereunder;
(c) dismissing the application;
(d) dismissing part of the claim and a judgment on part of the claim that is not dismissed;
(e) striking out the pleadings (whether in whole or in part); or
(f) further directions to proceed for case management under Order XV-A.
(2) Where the Court makes any of the orders as set forth in sub-rule (1) (a) to (f), the Court shall record its reasons for making such order.
7. Conditional order.—(1) Where it appears to the Court that it is possible that a claim or defence
may succeed but it is improbable that it shall do so, the Court may make a conditional order as set forth in Rule 6 (1) (b).
(2) Where the Court makes a conditional order, it may:—
(a) make it subject to all or any of the following conditions:—
(i) require a party to deposit a sum of money in the Court;
(ii) require a party to take a specified step in relation to the claim or defence, as the case may
be;
(iii) require a party, as the case may be, to give such security or provide such surety for
restitution of costs as the Court deems fit and proper;
(iv) impose such other conditions, including providing security for restitution of losses that
any party is likely to suffer during the pendency of the suit, as the Court may deem fit in its
discretion; and
(b) specify the consequences of the failure to comply with the conditional order, including passing a judgment against the party that have not complied with the conditional order.
8. Power to impose costs.—The Court may make an order for payment of costs in an application for summary judgment in accordance with the provisions of sections 35 and 35A of the Code.]
______
ORDER XIV
Settlement of Issues and Determination of Suit on
Issues of Law or on Issues agreed upon
1. 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.
(2) Material propositions arc those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements if
any, and
[after examination under rule 2 of Order X and after hearing the parties or their pleaders],
ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.
(6) Nothing is this rule requires the Court to frame and record issued where the defendant at the first hearing of the suit makes no defence.
[2. Court to pronounce judgment on all issues.—(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.]
3. Materials from which issues may be framed.—The Court may frame the issues from all or any of the following materials:—
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by
the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
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] 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. Power 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.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.]
6. Questions of fact or law may by agreement be stated in form of issues.—(1) 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 or such issue,—
(a) a sum of money specified in the agreement or to be ascertained by the Court, or in such
manner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of
them be declared entitled to some right or subject some liability specified in the agreement;
(b) some property specified in the agreement and in dispute in the suit shall be delivered by one
of the parties to the other of them, or as that other may direct; or
(c) one or more of the parties shall do or abstain from doing some particular act specified in the agreement and relating to the matter in dispute.
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,—
(a) that the agreement was duly executed by the parties,
(b) that they have a substantial interest in the decision of such question as aforesaid, and
(c) that the same is fit to be tried and decided,
it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as
if the issue had been framed by the Court;
and shall, upon the finding or decision on such issue, pronounce judgment according to the terms of the agreement; and, upon the judgment so pronounced, a decree shall follow.
______
*[ORDER XV
Disposal of the Suit at the first hearing
1. Parties not at issue.—(1) 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) Where there are more defendants than one, and any
one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once
pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.]
[(2) Whenever a judgment is pronounced under this rule, decree shall be drawn up in accordance with such judgment and the decree shall bear the date on which the judgment was pronounced.]
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 that 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.
1. Rule 2 renumbered as sub-rule (1) by Act 104 of 1976, s. 65 (w.e.f. 1-2-1977).
(2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of
the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires.
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
Case Management Hearing
1. First Case Management Hearing.—The Court shall hold the first Case Management Hearing, not
later than four weeks 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––
(a) framing the issues between the parties in accordance with Order XIV of the Code of Civil
Procedure, 1908 (5 of 1908), after examining pleadings, documents and documents produced before
it, and on examination conducted by the Court under Rule 2 of Order X, if required;
(b) listing witnesses to be examined by the parties;
(c) fixing the date by which affidavit of evidence to be filed by parties;
(d) fixing the date on which evidence of the witnesses of the parties to be recorded;
(e) fixing the date by which written arguments are to be filed before the Court by the parties;
(f) fixing the date on which oral arguments are to be heard by the Court; and
(g) setting time limits for parties and their advocates to address oral arguments.
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 recording 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 a 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;
*.
Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Sch. (w.e.f. 23-10-2015).
(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 and 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.
(2) When the Court passes an order in exercise of its powers under this Order, it may—
(a) make it subject to conditions, including a condition to pay a sum of money into Court; and
(b) specify the consequence of failure to comply with the order or a condition.
(3) While fixing the date for a Case Management Hearing, the Court may direct that the parties also
be present for such Case Management Hearing, if it is of the view that there is a possibility of settlement between the parties.
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.
(2) Notwithstanding anything contained in this Rule, if the Court is satisfied that there is a justified
reason for the absence of the advocate, it may adjourn the hearing to another date upon such terms and conditions it deems fit.
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 wilful, repeated and the imposition of costs is not adequate to ensure compliance.]
______
ORDER XVI
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 Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court.
(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by
the parties on an application to the Court or to such officer as may be appointed by the
[Court in this behalf within five days of presenting the list of witnesses under sub-rule (1).]
[1A. Production of witnesses without summons.—A Subject to the provisions of sub-rule (3) of
rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.]
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 within a period to be fixed
[which shall not be later than seven days from the date of making applications under sub-rule (4) of rule 1] 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.
(2) Experts.—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.
(3) Scale of expenses.—Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf.
[(4) Expenses to be directly paid to witnesses.—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.]
3. Tender of expenses to witness.—The sum so paid into Court shall be tendered to the person sum-
moned, 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 sale 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.
(2) Expenses of witnesses detained more than one day.—Where it is necessary to detain the person
summoned for a 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 is 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 produce 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.
[7A. Summons given to the party for service.—(1) The Court may, on the application of any party
for the issue of a 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.
(2) The service of such summons shall be effected by or on behalf of such party by delivering or
tendering to the witness personally a copy thereof signed by the Judge or such officer of the Court as he may appoint in this behalf and sealed with the seal of the Court.
(3) The provisions of rules 16 and 18 of Order V shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.
(4) If such summons, when tendered, is refused or if the person served refuses to sign and
acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.
(5) Where a summons is served by a party under this rule, the party shall not be required to pay the fees otherwise chargeable for the service of summons.]
8. Summons how served.—Every summons
[under this Order, not being a summons delivered to a
party for service under rule 7A,] 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 of service shall apply in the case of all summonses 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 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 verified by the affidavit, or if service
of the summons has affected 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.]
(2) Where the Court sees reason to believe that such evidence or production is material, and that such
person has, without lawful excuse, failed to attend or to produce the document in compliance with such
summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give
evidence or to produce the document at a time and place to be named therein; and a copy of such
proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in
its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an
order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the
costs of attachment and of any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an order for the attachment of immovable property.
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,—
(a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid
service, and,
(b) where he has failed to attend at the time and place named in a proclamation issued under the
last preceding rule, that he had no notice of such proclamation in time to attend,
the Court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit.
12. Procedure if witness fails to appear.—
[(1)] 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.
[(2) Notwithstanding that the Court has not issued a proclamation under sub-rule (2) of rule 10, nor issued a warrant nor ordered attachment under sub-rule (3) of that rule, the Court may impose fine under sub-rule (1) of this rule after giving notice to such person to show cause why the fine should not be imposed.]
13. Mode of attachment.—The provisions with regard to the 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 summon 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] 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 persons 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.
(2) On the application of either party and the payment through the Court of all necessary expenses
(if any), the Court may require any person so summoned and attending to furnish security to attend at the
next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, may order him to be detained in the civil prison.
17. Application of rules 10 to 13.—The provisions of rules 10 to 13 shall, so far as they are
applicable, be deemed to apply to any person who having attended in compliance with a summons departs, without lawful excuse, in contravention of rule 16.
1. Rule 12 renumbered as sub-rule (1) by Act 104 of 1976, s. 66 (w.e.f. 1-2-1977).
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—
(a) within the local limits of the Court’s ordinary jurisdiction, or
(b) without such limits but at a place less then
[one hundred] or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place
where he resides and the place where the Court is situate) less than
[five hundred kilometres] distance from the court-house:
[Provided that where transport by air is available between the two places mentioned in this rule and the witness is paid the fare by air, he may be ordered to attend in person.]
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
Attendance of witnesses confined or detained in prisons
1. Definitions.—In this Order,—
(a) “detained” includes detained under any law providing for preventive detention;
(b) “prison” includes—
(i) any place which has been declared by the State Government, by general or special order,
to be a subsidiary jail; and
(ii) any reformatory, borstal institution or other institution of a like nature.
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 kilometers,
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 State Government to exclude certain persons from the operation of rule 2.—(1) The State Government may, at any time, having regard to the matters specified in sub-rule (2), by general or special order,
3. The proviso added, by s. 66, ibid. (w.e.f. 1-2-1977).
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 State Government, shall have effect in respect of such person or class of persons.
(2) Before making an order under sub-rule (1), the State Government shall have regard to the following matters, namely:—
(a) the nature of the offence for which, or the grounds on which, the person or class of persons
have been ordered to be confined or detained in prison;
(b) the likelihood of the disturbance of public order if the person or class of persons is allowed to
be removed from the prison; and
(c) the public interest, generally.
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—
(a) is certified by the medical officer attached to the prison as unfit to be removed from the prison
by reason of sickness or infirmity, or
(b) is under committal for trial or under remand pending trial or pending a preliminary
investigation; or
(c) is in custody for a period which would expire before the expiration of the time required for
complying with the order and for taking him back to the prison in which he is confined or detained; or
(d) is a person to whom an order made by the State Government under rule 4 applies,
the officer in charge of the prison shall abstain from carrying out the Court’s order and shall send to the Court a statement of reasons for so abstaining.
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 authorises 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.
(2) The provisions of Order XXVI shall, so far may be, apply in relation to the examination on commission of such person in prison as they apply in relation to the examination on commission of any other person.]
______
ORDER XVII
Adjournment
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 time to a party during hearing of the suit.]
(2) Costs of adjournment.—In every such case the Court shall fix a day for the further hearing of the
suit, and
[shall make such orders as to costs occasioned by the adjournment or such higher costs as the
court deems fit:]
[Provided that,—
(a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all
the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.
(b) no adjournment shall be granted at the request of a party, except where the circumstances are
beyond the control of that party,
(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for
adjournment,
(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his
being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant
the
.
adjournment unless it is satisfied that the party applying for adjournment could not have engaged
another pleader in time,
(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court
may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.]
2. Procedure if parties fail to appear on 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 were present.]
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,
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under rule 2].
______
ORDER XVIII
Hearing of the suit and examination of witnesses
1. Right to begin.—The plaintiff has the right to begin unless the defendant admits the facts alleged
by the plaintiff and contents 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.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
[(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral argu-
ments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjourment.
(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.]
*[(3A) A party shall, within four weeks prior to commencing the oral arguments, submit concisely
and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3B) The written arguments shall clearly indicate the provisions of the laws being cited in support of
the arguments and the citations of judgments being relied upon by the party and include copies of such judgments being relied upon by the party.
(3C) A copy of such written arguments shall be furnished simultaneously to the opposite party.
(3D) The Court may, if it deems fit, after the conclusion of arguments, permit the parties to file
revised written arguments within a period of not more than one week after the date of conclusion of arguments.
(3E) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
(3F) It shall be open for the Court to limit the time for oral submissions having regard to the nature and complexity of the matter.]
[ *]
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 latter 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 specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.
[3A. 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.]
[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 admis-
sibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
*[(1A) 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.
(1B) 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.
(1C) 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.]
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the
Court or by the Commissioner appointed by it:
1. Sub-rule (4) omitted by Act 46 of 1999, s. 27 (w.e.f. 1-7-2002).
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit.
(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or
mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such
evidence is recorded by the Commissioner he shall return such evidence together with his report in writing
signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any
witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within
sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.]
[
5. How evidence shall be taken in appealable cases.—In case in which an appeal is allowed, the evidence of each witness shall be,—
(a) taken down in the language of the Court,—
(i) in writing by, or in the presence and under the personal direction and superintendence of,
the Judge, or
(ii) from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge.]
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,]
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
pleaders, 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.
2. The provisions of rule so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U. P. Act 4 of 1925), s. 16 (2).
3. The provisions of rules 6, 7, 8, 9, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see, s. 16 (2), ibid.
5. Subs. b y s. 69, ibid ., fo r r ule 9 ( w. e. f. 1-2 -1977).
(2) Where evidence is not given in English but all the parties who appear in person, and the pleaders of
such of the parties as appear by pleaders, do not object to having such evidence being taken down in English, the Judge may take down, or cause to be taken down, such evidence in English.]
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. Questions objected 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 unappealable 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 typewriter, 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.]
14. [Judge unable to make such memorandum to record reasons of his inability] omitted by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), s. 69 (w.e.f. 1-2-1977).]
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 it.
(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 24.
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.
(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.
(3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be
signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit.
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.
17A. [Production of evidence not previously known or which could not be produced despite due diligence.]
omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), s. 27 (w.e.f. 1-7-2002).
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].
[19. Power to get statements 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.]
1. The provisions of rules 11, 13, 14, 15, so far as they relate to the manner of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U. P. Act 4 of 1925), s. 16 (2).
2. Subs. b y Act 104 o f 1976, s. 69, fo r th e ru le, (w. e. f. 1 - 2-1977).
ORDER XIX
Affidavits
1. 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.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.
3. Matters to which affidavits shall be confined.—(1) 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.
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or
argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs)
be paid by the party filing the same.
*[4. Court may control evidence. —(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.
(2) The Court may, in its discretion and for reasons to be recorded in writing, exclude evidence that would otherwise be produced by the parties.
5. Redacting or rejecting evidence. — A Court may, in its discretion, for reasons to be recorded in writing––
(i) redact or order the redaction of such portions of the affidavit of examination-in-chief as do not,
in its view, constitute evidence; or
(ii) return or reject an affidavit of examination-in-chief as not constituting admissible evidence.
6. Format and guidelines of affidavit of evidence. —An affidavit must comply with the form and requirements set forth below:—
(a) such affidavit should be confined to, and should follow the chronological sequence of, the
dates and events that are relevant for proving any fact or any other matter dealt with;
(b) where the Court is of the view that an affidavit is a mere reproduction of the pleadings, or
contains the legal grounds of any party’s case, the Court may, by order, strike out the affidavit or such
parts of the affidavit, as it deems fit and proper;
(c) each paragraph of an affidavit should, as far as possible, be confined to a distinct portion of
the subject;
(d) an affidavit shall state—
(i) which of the statements in it are made from the deponent’s own knowledge and which are
matters of information or belief; and
(ii) the source for any matters of information or belief;
(e) an affidavit should—
(i) have the pages numbered consecutively as a separate document (or as one of several
documents contained in a file);
(ii) be divided into numbered paragraphs;
(iii) have all numbers, including dates, expressed in figures; and
(iv) if any of the documents referred to in the body of the affidavit are annexed to the
affidavit or any other pleadings, give the annexures and page numbers of such documents that are relied upon.]
______
*. Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Sch. (w.e.f. 23-10-2015).
ORDER XX
Judgment and decree
[
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.]
*[(1) The Commercial Court, Commercial Division, or Commercial Appellate Division, as the case
may be, shall, within ninety days of the conclusion of arguments, pronounce judgment and copies thereof shall be issued to all the parties to the dispute through electronic mail or otherwise.]
[(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court
on each issue and the final order passed in the case are read out and it shall not be necessary for the Court
to read out the whole judgment
***.
(3) The judgment may be pronounced by dictation in open Court to a shorthand writer if the Judge is
specially empowered by the High Court in this behalf:
Provided that, where the judgment is pronounced by dictation in open Court, the transcript of the
judgment so pronounced shall, after making such correction therein as may be necessary, be signed by the judge, bear the date on which it was pronounced, and form a part of the record.]
2. Power to pronounce judgment written by judge’s predecessor.—
[A Judge shall] pronounce a judgment written, but not pronounced, by his predecessor.
3. Judgment to be signed.—The judgment 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. Judgments of Small Cause Courts.—(1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.
(2) Judgments of other Courts.—Judgments 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.
[5A. 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 judgment in a case subject to appeal, inform the parties present in Court as to the
Court to 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.]
2. The pr ovisions of r ules 1 , 3, 4 a nd 5 ar e not app licable to the Chief Court of Oudh, se e the Oudh Cour ts Act, 1925
( U. P. Act 4 of 1925) , s. 16 (2).
4. Ins. b y Act 104 of 1976, s. 70 ( w.e.f. 1-2-1977).
5. Certain words omitted by Act 46 of 1999, s. 28 (w.e.f. 1-2-1977).
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,] and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.
(3) The Court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter.
[6A. Preparation of decree.—(1) Every endeavour shall be made to ensure that the decree is drawn
up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced.
(2) An appeal may be preferred against the decree without filing a copy of the decree and in such a
case the copy made available to the party by the court shall for the purposes of rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.
6B. Copies of judgments when to be made available.—Where the judgment is pronounced, copies of
the judgment shall be made available to the parties immediately after the pronouncement of the judgment
for preferring an appeal on payment of such charges as may be specified in the rule made by the High Court.]
7. Date of decree.—The decree shall bear 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 or 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] 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.
(2) Order, after decree, for payment by instalments.—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, 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.
(ba) 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.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
[12A. Decree for specific performance of contract for the sale or lease of immovable property.—
Where a decree for the specific performance of a contract for the sale or lease of immovable property orders that the purchase-money or other sum be paid by the purchaser or lessee, it shall specify the period within which the payment shall be made.]
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.
(2) In the administration by the Court of the property of any deceased person, if such property proves
to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to
the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to
the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration-suit is pending with respect to the
estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled
to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.
14. Decree in pre-emption suit.—(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of 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 of such purchase-money, together with the costs (if any)
decrees against the plaintiff, on or before the day referred to in clause (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 costs.
(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,—
(a) if and in so far as the claims decreed are equal in decree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing
to comply with the said provisions would, but for such default, have taken effect; and
(b) if and in so far as the claims decreed are different in degree, that the claim of the inferior pre-
emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.
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 direction 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,—
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the
Government, the decree shall declare the rights of the several parties interested in the property, but
shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of
the Collector deputed by him in this behalf, in accordance with such declaration and with the
provisions of section 54;
(2) if and in so far as such decree relates to any other immovable property or to movable property,
the Court may, if the partition or separation cannot be conveniently made without further inquiry,
pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.
19. Decree when set-off or counter-claim is allowed.—(1) Where the defendant has been allowed a set-off
[or counter-claim] 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.
(2) Appeal from decree relating to set-off or counter-claim.—Any decree passed in a suit in which a set-off
[or counter-claim] is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off
[or counter-claim] had been claimed.
(3) The provisions of this rule shall apply whether the set-off is admissible under rule 6 of Order VIII
or otherwise.
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 XXA
Costs
1. 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,—
(a) expenditure incurred for the giving of any notice required to be given by law before the
institution of the suit;
(b) expenditure incurred on any notice which, though not required to be given by law, has been
given by any party to the suit to any other party before the institution of the suit;
(c) expenditure incurred on the typing, writing or printing of pleadings filed by any party;
(d) charges paid by a party for inspection of the records of the Court for the purposes of the suit;
(e) expenditure incurred by a party for producing witnesses, even though not summoned through
Court; and
(f) in the case of appeals, charges incurred by a party for obtaining any copies of judgments and decrees which are required to be filed along with the memorandum of appeal.
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
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) Where any payments is made under clause (a) or clause (c) of sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due.
(3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely:—
(a) the number of the original suit;
(b) the names of the parties or where there are more than two plaintiffs or more than two
defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;
(c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal,
interest or costs;
(d) the number of the execution case of the Court, where such case is pending; and
(e) the name and address of the payer.
(4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2).
(5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the
date of such payment:
Provided that, where the decree-holder refuses to accept the postal money order or payment through a
bank, interest shall cease to run from the date on which the money was tendered to him, or where he
avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the
date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be.]
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 decree of any kind is otherwise adjusted] 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.
(2) The judgment-debtor
[or any person who has become surety for the judgment-debtor] also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-
holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
[(2A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless—
(a) the payment is made in the manner provided in rule 1; or
(b) the payment or adjustment is proved by documentary evidence; or
(c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of rule 1, or before the Court.]
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.
Courts executing decrees
3. Lands situate in more than one jurisdiction.—Where 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. Transfer to Court of Small Causes. —Where a decree has been passed in a suit of which the value as set forth in the plaint did not exceed two thousand rupees and which, as regards its subject-matter, is not
excepted by the law for the title being in force from the cognizance of either a Presidency or a Provincial Court
of Small Causes, and the Court which passed it wishes it to be executed in Calcutta, Madras
[or Bombay],
such Court may send to the Court of Small Causes in Calcutta, Madras
[or Bombay], as the case may be, the
copies and certificates mentioned in rule 6; and such Court of Small Causes shall thereupon execute the decree as if it had been passed by itself.
[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.]
6. Procedure where Court desires that its own decree shall be executed by another Court.—The Court sending a decree for execution shall send—
(a) a copy of the decree;
(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within
the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the
extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and
(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.
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. Execution by High Court of decree transferred by other Court.—Where the Court to which the
decree is sent for execution is a High Court, the decree shall be executed by such Court in the same
manner as if it had been passed by such Court in the exercise of its ordinary original civil jurisdiction.
Application for execution
10. 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.
1. In the application of the Act to Punjab, sub-rule (3) rep. by the Punjab Relief of Indebtedness Act, 1934 (Pun. Act 7 of 1934), s. 36.
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 the 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.
(2) Written application.—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 of 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;]
(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.
(3) The Court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.
[11A. Application for arrest to state grounds.—Where an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which arrest is applied for.]
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—
(a) a description of such property sufficient to identify the same and, in case such property can be
identified by boundaries or numbers in a record of settlement or survey, a specification of such
boundaries or numbers; and
(b) a specification of the judgment-debtor’s share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.
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 persons 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-holders.—(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.
(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application
made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application.
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 affect 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.]
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] the defect to be remedied then and there or within a time to be fixed by it.
[1A. 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.]
(2) Where an application is amended under the provisions of sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.
(3) Every amendment made under this rule shall be signed or initialled by the Judge.
(4) When the application is admitted, the Court shall enter in the proper register a note of the
application and the date on which it was made, and shall, subject to the provisions hereinafter contained,
order execution of the decree according to the nature of the application:
Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.
18. Execution in case of cross-decrees.—(1) Where applications are made to a Court for the execution of cross-decrees in separate suits 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 on the decree for the smaller sum.
(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.
(3) This rule shall not be deemed to apply unless—
(a) the decree-holder in one of the suits in which the decrees have been made is the judgment-
debtor in the other and each party files the same character in both suits; and
(b) the sums due under the decrees are definite.
(4) The holder of a decree passed against several persons jointly and severally may treat it as a cross-
decree in relation to a decree passed against him singly in favour of one or more of such persons.
Illustrations
(a) A holds a decree against B for Rs. 1,000. B holds a decree against A for payment of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this rule.
(b) A and B, co-plaintiffs, obtain a decree for Rs. 1,000. against C, and C obtains a decree for Rs. 1,000 against B. C cannot treat his decree as a cross-decree under this rule.
A obtains a decree against B for Rs. 1,000. C, who is a trustee for B, obtains a decree on behalf of B against A
for Rs. 1,000. B cannot treat C's decree as a cross-decree under this rule.
A, B, C, D and E are jointly and severally liable for Rs. 1,000 under a decree obtained by F. A obtains a decree for Rs. 1,000 against F singly and applies for execution to the Court in which the joint-decree is being executed. F
may treat his joint-decree as cross-decree under this rule.
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—
(a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and
(b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger
sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.
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 charge.
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] after the date of the decree, or
(b) against the legal representative of a party to the decree
[or where an application is made for
execution of a decree filed under the provisions of section 44A],
[or]
[(c) against the assignee or receiver in insolvency, where the party to the decree has been
adjudged to be an insolvent,]
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] having
elapsed between the date of the decree and the application for execution if the application is made within
[two years] 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.
(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process
in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it
considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.
[22A. Sale not be set aside on the death of the judgment-debtor before the sale but after the service of the proclamation of sale.—Where any property is sold in execution of a decree, the sale shall not be set aside merely by reason of the death of the judgment-debtor between the date of issue of the proclamation of sale and the date of the sale notwithstanding the failure of the decree-holder to substitute the legal representative of such deceased judgment-debtor, but, in case of such failure, the Court may set aside the sale if it is satisfied that the legal representative of the deceased judgment-debtor has been prejudiced by the sale.]
23. Procedure after issue of notice.—(1) Where the person to whom notice is issued under
[rule 22]
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.
(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.
Process for execution
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.
(2) Every such process shall bear date the day on which it is issued, and shall be signed by the Judge
or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed.
[(3) In every such process, a day shall be specified on or before which it shall be executed and a day
shall also be specified on or before which it shall be returned to the Court, but no process shall be deemed to be void if no day for its return is specified therein.]
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 exceeded, 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.
(2) Where the endorsement is to the effect that such officer is unable to execute the process, the Court
shall examine him touching his alleged inability, and may, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result.
Stay of execution
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 reasonable 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.
(2) Where the property or person of the judgment-debtor has been seized under an execution, the
Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application.
(3) Power to require security from, or impose conditions upon, judgment-debtor.—Before making an order to stay execution, or for the restitution of property or the discharge of the judgment-
debtor,
[the Court shall require] such security from, or impose such condition upon, the judgment-debtor as it thinks fit.
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-debtors.—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, 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.]
Mode of execution
30. 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 specific 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 the detention in the civil prison of the judgment-debtor, or by the attachment of his property, or by both.
(2) Where any attachment under sub-rule (1) has remained in force for
[three months,] if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decree-
holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of
movable property, such amount, and in other cases, such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he
is bound to pay, or where, at the end of
[three months] from the date of the attachment, no application to
have the property sold has been made, or, if made, has been refused, the attachment shall cease
.
32. Decree for specific performance for restitution of conjugal rights, or for an injunction.—
(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of
conjugal rights, or for an injunction, has been passed, 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 his property or, in the case of a decree for the specific performance
of a contract or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for specific performance or for an injunction has been
passed is a corporation, the decree may be enforced by the attachment of the property of the corporation
or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for
[six months,]
if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-
holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which
he is bound to pay, or where, at the end of
[six months] from the date of the attachment no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed,
the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be
ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
[Explanation.—For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.]
Illustration A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B.
A, in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that no sum realizable by the sale of A's property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution-proceedings.
33. Discretion of Court in executing decrees for restitution of conjugal rights.—(1)
Notwithstanding anything in rule 32, the Court, either at the time of passing a decree
[against a husband]
for the restitution of conjugal rights or at any time afterwards, may order that the decree
[shall be executed in the manner provided in this rule.]
(2) Where the Court has made an order under sub-rule (1)
***, it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.
(
3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical
payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may
temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again review the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money.
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 the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
(2) The Court shall there upon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
(3) Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit.
(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being
in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.
(5) The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely:—
“C. D., Judge of the Court of,
(or as the case may be), for A. B., in a suit by E. F against A. B.”,
and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.
[(6) (a) Where the registration of the document is required under any law for the time being in force,
the Court, or such officer of the Court as may be authorised in this behalf by the Court, shall cause the document to be registered in accordance with such law.
(b) Where the registration of the document is not so required, but the decree-holder desires it to be registered, the Court may make such order as it thinks fit.
(c) Where the Court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration.]
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.
(2) Where a decree is for the joint possession of immovable property, such possession shall be
delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building on enclosure is to be delivered and the person in possession,
being bound by the decree, does not afford free access, the Court, through its officers, may, after giving
reasonable warning and facility to any woman not appearing in public according to the customs of the
country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.
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.
37. 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], 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.]
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.
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 costs (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.
(2) Where a judgment-debtor is committed to the civil prison in execution of a decree, the Court
shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed
under section 57, or, where no such scales have been fixed, as it considers sufficient with reference to the class to which he belongs.
(3) The monthly allowance fixed by the Court shall be supplied by the party on whose application the judgement-debtor has been arrested by monthly payments in advance before the first day of each month.
(4) The first payment shall be made to the proper officer of the Court for such portion of the current month as remains unexpired before the judgment-debtor is committed to the civil prison, and the subsequent payments (if any) shall be made to the officer in charge of the civil prison.
(5) Sums disbursed by the decree-holder for the subsistence of the judgment-debtor in the civil
prison shall be deemed to be costs in the suit :
Provided that the judgment-debtor shall not be detained in the civil prison or arrested on account of any sum so disbursed.
[40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest.—(1)
When a judgment-debtor appears before the Court in obedience to a notice issued under rule 37, or is brought
before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of section 51 and to the other provisions of this Code, make an order for the detention of the judgment-
debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the
Court for a specified period not exceeding fifteen days or release him on his furnishing security to the
satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-rule (3) it shall disallow the application and, if the judgment-debtor is under arrest, direct his release.]
Attachment of property
41. Examination of judgment-debtor as to his property.—
[(1)] 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], 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.
[(2) Where a decree for the payment of money has remained unsatisfied for a period of thirty days, the Court may, on the application of the decree-holder and without prejudice to its power under sub-rule
(1), by order require the judgment-debtor or where the judgment-debtor is a corporation, any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor.
(3) In case of disobedience of any order made under sub-rule (2), the Court making the order, or any
Court to which the proceeding is transferred, may direct that the person disobeying the order be detained
in the civil prison for a term not exceeding three months unless before the expiry of such term the Court directs his release.]
42. Attachment in case of decree for rent or 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 judgement-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.