Applications In Civil Suits

  • The following proceedings may arise in a Civil Suit filed before High Courts in the exercise of its Original Jurisdiction / City Civil Courts / District Court –

  • 1. After institution of Suit, the Plaintiff, with intent to secure some Interim reliefs pending the final disposal of Suit, may take out appropriate proceedings, may be in the form of Notice of Motion.

  • a) The trial Court whilst deciding this Application for Interim Relief may or may not grant the Interim Relief which were prayed for.

  • b) The Plaintiff or the Defendant, as the case may be, may challenge the said Order by way of Appealable Orders (AO), contemplated u/s 104 of CPC, 1908.

  • c) The AO may be preferred before the Court to which an appeal would lie from the decree in the suit, by following the procedure prescribed under O.43 of CPC, 1908.

  • d) Before preferring this AO, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Interim Order.

  • e) If any of the parties are further aggrieved with the Order passed in AO, and if the Order is passed by a High Court, and if intra Court Appeal is available by virtue of Clause XV of Letters Patent Act, 1861, the aggrieved may then prefer intra court Appeal (Before the same Court and before Two judges Bench);

  • f) If Order of AO is passed by a Court subordinate to High Court, then, Writ Petition under Article 227 may be preferred before the concerned High Court;

  • g) If any party is further aggrieved, SLP before the Apex Court may be preferred.

  • h) Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order.

  • 2. At the institution of the Suit, there may be a challenge as to the maintainability of the Suit, and for this Section 9A Application (In Maharashtra) or Notice of Motion may be taken out under O.7 R.11(a)(d) or O.14 R.2 of CPC, 1908, including on the grounds of limitation.

  • a) If the Order of Rejection passed under this Application / Motion, was passed by City Civil Court, then Civil Revision Application (CRA) u/s 115 of CPC, 1908 would lie before concerned High Court; or if the Order of Rejection was passed by Civil Judge Junior Division / Civil Judge Senior Division, AO, stated hereinbefore, may be preferred before the District Judge; and then before concerned High Court by way of Civil Revision Application (CRA) u/s 115 of CPC, 1908;

  • b) If any of the parties are further aggrieved with the Order passed in CRA, may then prefer an SLP before the Apex Court.

  • c) Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order.

  • In appropriate cases, before taking out Application under O.7 R.11(a) for Rejection of Plaint for non disclosure of cause of action, the Defendant may take out Application under O.6 R.16, to delete any factual proposition of fact in the Plaint which is frivolous (unsustainable in law); and where such Application is allowed, then he may thereafter take out Application under O.7 R.11(a) for Rejection of Plaint for non disclosure of cause of action .

  • 3. The other Application which may be taken out by the Plaintiff, after filing of Written Statement by the Defendant, is Application under O.12 R.6, that is Judgment on Admission. This Application may be taken out by way of Notice of Motion or by any other appropriate Application.

  • a) If the Order of Rejection passed under this Application / Motion, was passed by City Civil Court, then if the entire Suit is going to be disposed off, then Civil Revision Application (CRA) u/s 115 of CPC, 1908 would lie before concerned High Court, or if only partial final Relief is sought to be claimed in Judgment for Admission, then, Writ under Article 227 may be preferred; or if the Order was passed by Civil Judge Junior Division / Civil Judge Senior Division, AO, stated hereinbefore, may be preferred before the District Judge; and then before concerned High Court by way of Civil Revision Application (CRA) u/s 115 of CPC, 1908, or Writ under Article 227 stated hereinbefore;

  • b) If any of the parties are further aggrieved with the Order passed in CRA / Writ 227, may then prefer an SLP before the Apex Court.

  • c) Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order

  • In appropriate cases, before taking out Application under O.12 R.6 for Judgment on Admission, the Plaintiff may take out Application under O.6 R.16, to delete any factual proposition of fact in the Written Statement which is frivolous (unsustainable in law); and where such Application is allowed, then he may thereafter take out Application under O.12 R.6 for Judgment on Admission.

  • 4. Amendment of Plaint or Written Statement is one of the most common things in Suit proceedings. By virtue of O.6 R.17 of CPC 1908, the parties to the proceedings, may by taking out appropriate proceedings, amend the pleadings of their case which is filed in the Court. The said O.6 R.17 also defines the scope of amendment which is permissible and the stage of the proceeding at which amendments is permissible.

  • a) If the Order passed under this Application / Motion, was passed by City Civil Court / Civil Judge Junior Division / Civil Judge Senior Division, an Application under Article 227 of the Constitution of India before concerned High Court would lie;

  • b) If any of the parties are further aggrieved with the Order passed in Application under Article 227 of the Constitution of India, may then prefer an SLP before the Apex Court.

  • c) Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order.

  • 5. Then, there could be a situation where despite Summons were duly served upon Defendants, the Defendant fails to appear, or after appearing, do not file their Written Statement (WS), within 30 days or 90 days, from the date of service of Summons, or any other further period as may be granted by the Court under O.8 R.10. In this situation the trial Court is empowered to pass Ex-parte decree under O.9 R.6; or judgment followed by decree under O.8 R.10, as the case may be.

  • a) If any Order is passed under O.9 R.6, the same may be set aside by Defendant by making Application before the same Court under O.9 R.13. If Order is passed under O.8 R.10 (failure to file WS), the Defendant may have to prefer a First Appeal u/s 96 of CPC, 1908.

  • b) If any of the parties are further aggrieved with the Order passed in Application under O.9 R.13, and if the Order was passed by Civil Judge Junior Division / Civil Judge Senior Division, AO stated hereinbefore, may be preferred before the District Judge; and if AO is rejected, then Civil Revision Application (CRA) u/s 115 of CPC, 1908 before concerned High Court may be preferred;

  • c) If Defendant is further aggrieved with the Order passed, and if intra Court Appeal is available by virtue of Clause XV of Letters Patent Act, 1861, the aggrieved may then prefer intra court Appeal (Before the same Court and before Two judges Bench);

  • d) If any of the parties are further aggrieved with the Order passed in CRA, or Order passed in Letters Patent Appeal, may then prefer an SLP before the Apex Court;

  • e) Before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order.

  • 6. Then there could be a dispute between the Plaintiff and Defendant as to correctness of Framing of Issues or addition or modification of Issues. The Issues framed by the Court, or refusing or granting to delete or modify issues, may be a subject matter of challenge, for which Motion may be taken out under O.14 R.5 of CPC, 1908. The remedies are the same as suggested hereinbefore in cases of Orders passed in Application under O.6 R.17.

  • 7. Then, there could be a challenge as to admissibility or exhibiting of documentary evidence led by any of the parties during the course of trial. The remedies are the same as suggested hereinbefore in cases of Orders passed in Application under O.6 R.17.

  • 8. Then there could be a situation where any of the Plaintiff or Defendant dies during the course of trial. In this situation, the heirs or any other Legal representatives of the deceased party has to be brought on record by the Plaintiffs by taking out appropriate proceedings, may be by Chamber Summons. It is the responsibility of the Plaintiff to adopt appropriate proceedings in these cases even if any of the Defendants dies, where the right to sue survives against the estate of the deceased. For this Application under O.22 of CPC, 1908 is required to be adopted, and the Application must be made within 90 days from the date of knowledge of the death of the party.

  • 9. Then there could be a withdrawal or compromise between the parties to the Suit. For this Application under O.23 of CPC, 1908, is required to be adopted.

  • 11. Any party aggrieved by the Order passed in First Appeal may prefer a Second Appeal u/s 100 r/w O.42 of CPC, 1908, which lie before the concerned High Court. The party aggrieved by Order passed in First Appeal may also prefer a Civil Revision Application, as stated hereinbefore.

  • 12. Any person aggrieved by an Order passed in Second Appeal or CRA, as the case may be, may prefer to invoke SLP jurisdiction of Apex Court.

  • 13. In all the above cases, before invoking the Appellate jurisdiction of any Court, the aggrieved person, depending upon the facts of the case, may prefer Review or Recall of the Order, before the same Court who has passed the Order.

Applications In Civil Suits