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TUTORIAL-I

X lost a suit pertaining to the ownership of white acre. After the decree had been passed,
while attending a marriage ceremony he per chance meet his maternal uncle who had been
residing in Canada, who was on short visit to India. Material to state that it was for the
first time that the maternal uncle had met the person who had filed the suit. During the
conversation the maternal uncle informed the plaintiff that his grandfather had made a
will by which white acre was bequeathed to the plaintiff. According to him this will should
be somewhere in the old ancestral house. The plaintiff after some days, visits his ancestral
home and searches for the will. In a room stacked with old and moth eaten books that he
lays his hand on an envelope and discover the will. The said will is a material document so
relevant that had this been produced before the trail court the plaintiff would have become
the title holder of white Acre. Analyze whether these facts justify the filing and
maintainability of REVIEW PETITION.

In the present case the review petition must not be entertained.


Review literally and even judicially means re-examination or re-consideration of its own
decision by the very same court. Basic philosophy inherent in it is the universal acceptance of
human fallibility. An application for review may be necessitated by way of invoking the doctrine
actus curiae neminem gravabit which means an act of the court shall prejudice no man. The
other maxim is, lex non cogit ad impossibillia which means the law does not compel a man to
do that what he cannot possibly perform.
Section 114 of the Code of Civil Procedure provides for a substantive power of review by a civil
court and consequently by the appellate courts. Section 114 of the code although does not
prescribe any limitation on the power of the court but such limitations have been provided for in
Order 47, Rule 1 of the CPC.
The grounds on which review can be sought are enumerated in Order 47, Rule 1 CPC

So the circumstances when review lies are


(a) cases in which appeal lies but not preferred,
(b) cases in which no appeal lies,
(c) decisions on reference from Court of Small Causes; and
the grounds are
(i) discovery of new and important matter or evidence, after the exercise of due diligence, was
not within his knowledge or could not be produced by him at the time when the decree was
passed or made, or1
(ii) mistake or error apparent on the face of the record, or 2
(iii) any other sufficient reason mean a reason sufficient on grounds.3
The party seeking review must show that he exercised greatest care in adducing all possible
evidence and that the new evidence is such as is relevant and that if it had been given in the suit
it might possibly have altered the judgment. It is not the discovery of new and important
evidence alone which entitles a party to apply for a review, but the discovery of any new and
important matter which was not within the knowledge of the party when the decree was made.
An application for review on the ground of discovery of new evidence should show that: (i) such
evidence was available and of undoubted character; (ii) that the evidence was so material that its
absence might cause a miscarriage of justice; and (iii) that it could not with reasonable care and
diligence have been brought forward at the time of the decree. The applicant has, however, to
satisfy that there was no remissness on his part and it is not allowed when any of the party was
negligent in producing evidence in the court of law. In Chajju Ram v Neki4 review petition was
not allowed when lawyer of one party was negligent to produce documents in the court of law
which resulted in his client downfall in the suit.

Nundo lal case AIR 1918 Cal 618

Haridas v USha Rani Banik(2006)4 SCC 78

Hari Shankar v Anath Nath AIR 1949 FC 106

A. I. R. 1922 P. C. 112

Considering the facts given, Mr. x lost the suit pertaining to ownership of white acre. Mr. X
should have searched all the places where documents relating to white acre could have been
found including his ancestral house, but plaintiff was negligent and has not taken due care to find
the will material to case which could have altered the decree. Since will was later discovered in
an envelope found in a room stacked with books. This shows that plaintiff has not exercised due
diligence while looking for material documents. Even if for argument sake it is agreed that
plaintiff had no knowledge of will, he happened to know about it per chance through his
maternal uncle then too other argument will come into picture that one before filing a suit must
be diligent enough to arrange all documents relating to suit and title of white acre, at all possible
place.
Therefore the present review petition hence not maintainable.

TUTORIAL-II
Punjab National Bank gave a car loan of rs.1 lac to Mr. X. While giving the loan MR X,
they also needed two sureties who would act as guarantee for X in case he defaults in the
repayment of the loan. Subsequently Mr. X fails to discharge the said loan and defaults in
making good the said loan. The bank contact you for appropriate advice as to whether
separate suit has to be filed against Mr. X and the sureties or it would be enough to make
all the person as defendants. Discuss.
In the present case Punjab National bank is advised to file a single suit thereby making Mr X as
well as the two sureties party to the suit.
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 (Order I,
Rule 3).
Thus where A received injuries while riding in an omnibus belonging to B through a collision
between that omnibus and a cart belonging to C, A may join B and C as defendant in one suit for
damages for personal injury caused by their negligence because the injury to the plaintiff arose
from the same transaction or series of transactions and the case involves common question of
fact.
The underlying object of rule 3 of order 1 is to avoid multiplicity of suits and needless expensed.
5

The provisions hence should be construed liberally. Where it appears to the court that any

joinder or plaintiffs or defendant may embarrass or delay the trail the court may order for
separate trial. A plaintiff is a dominus litis and has a right to chose his adversary against whom
he wants to fight and from whom he seeks relief. It is not province of a court of law to interfere
with that right.
All person against whom relief is sought form part of same transaction than all those person must
be made parties to the suit as a necessary party. A necessary party is a party without impleading
5

Razia Begum v Sahebzadi Anwar AIR 1958 AP 195

whom a claim cannot be legally settled by court. In other words, in the absence of a necessary
party, no effective and complete decree can be passed by the court.
But distinction has to be made between necessary party and proper party. In the case of nonjoinder of necessary parties the court cannot pass an effective decree in their absence. In such a
case the suit cannot proceed and is liable to be dismissed if the plaintiff on being provided with
an opportunity to amend the plaintiff refuses to do so. But in the case of non-joinder of proper
parties the non-joinder is not fatal.
The court can add the absent party or try the suit without him. Where nothing is sought against a
particular party, non-joinder of such party has no effect. Order 1, Rule 9 of the Code deals with
non joinder of parties, but is only a procedural provision, which does not affect the substantive
rights and duties of parties
There are two tests for determining the questions whether a particular party is necessary party to
the proceedings:

There has to be a right of relief against such a party in respect of the matters involved in
the suit.

The court must not be in a position to pass an effective decree in the absence of such a
party

Analyzing the given situation, the bank is the plaintiff who sought remedy against Mr. X who
took loan from bank and made default. While giving the loan two sureties became the guarantor
for X in case he defaults in repayment. Hence Bank can claim remedy form X as well as from
guarantor who became sureties and thereby made themselves part of same transaction where
Bank and Mr X was involved. Therefore Bank while filing suit can make the two guarantor
along with X as a defendant to the suit since they are the necessary party without whom legally
the suit cannot be adjudicated.

TUTORIAL III
Mr. X has been arrayed as defendant in a suit. The civil court issues a summon to him to
answer the claim. The Process Server who took summon knocked at the door of the
defendant to serve summon. An Old lady half senile opened the door and informed the
process server that defendant is not presently residing in premises and she was the mother
of defendant. The Process Server served the summon on the lady. Discuss as regard the
validity of said service.
The said service is not valid.
A summon is an order from court to an individual to appear before it at a specified time and
place. A summon may be issued in both criminal and in civil cases. When a suit is instituted by
the plaintiff the court orders to issue summons to the defendant. This is to permit the defendant
to appear and answer the claim of the plaintiff. This ensures a fair trial. Without a duly served
summons no further action can be taken against the defendant. So sending of summons is very
important in a civil case.
If one is sued, and that one is not served properly, this fact can get his case thrown out of court or
help him to vacate a judgment. In fact, the best reason to vacate a judgment would be improper
service.
First of all, service of due process is a privilege set forth by the Constitution. This means that all
citizens of the India hold the right to be informed of being summoned as specified in the fifth and
sixth amendments of the Constitution. A process server is the messenger who "serves" a person
with the notification that states the legal issues involved in a lawsuit. A process server delivers
these papers in a timely manner and then there is verification a defendant was served a Summons
and Complaint.
Service of process is necessary for many reasons, but the primary reason is to make sure that the
procedure established by law is upheld in India . If papers aren't served properly, the court is not
able to rule on a case relating to an individual if they were not legally made aware of it. If service
is determined to be improper, the entire case may be thrown out. This makes it even more

essential to be aware of the laws of your state pertaining to the correct way to serve a defendant
legally.
Another reason service of process is important is because being properly "served" gives legal
proof a defendant received the notice for which they are being sued. As stated before, if a
defendant is not properly served a Summons and Complaint, their legal rights have not been
upheld and the lawsuit can be thrown out of court.
As a general summon must be served to defendant personally. But section 15 says
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.
The philosophy behind incorporating this section is that in case defendant cannot be found at his
place of residence and there is no likelihood of him being found then the other adult member of
his family residing with the defendant so that that member of family can communicate to the
defendant that his presence is required in the court.
In the given case the defendant presence was required at the court thats why summon was issued
in his name. This issuance of summon cast a duty on process server to serve the summon to
defendant effectively. But the process server did not perform his duty efficiently and served the
summon on the lady who though happen to be the member of defendant family was half senile
and might not communicate the same to defendant on his return. A process server is required to
be reasonable, prudent and must exercise due diligence while serving summon because his one
wrong step would not ensure fair trail and lead to the violation of principles of natural justice.

TUTORIAL IV
Annex a copy of summon published under order v rule xx in a newspaper and published
and circulated in New Delhi. Analyze whether the said publication is in terms of
OVRXX1(A).
Three basic methods are used for service of process: (1) actual, or personal, service, (2)
substituted service, and (3) service by publication. Although each method is legally acceptable,
Personal Service is preferred because it is the most effective way of providing notice and it is
difficult for the defendant to attack its legality. Personal service means in-hand delivery of the
papers to the proper person. Traditionally personal service was the only method of service
allowed by law because it was best suited to give the defendant notice of the proceedings.
A third method of service is publication of a notice in a newspaper. Publication is also called
constructive service because the court construes it to be effective whether the defendant actually
reads the notice or not6. Generally, service by publication is allowed only by leave of the court,
which usually grants permission only when the plaintiff can show that no other method of
service can be effected. Usually the legal notice must be published in at least one newspaper of
general circulation where the defendant is likely to be found or where the court is located, or in
both places. Ordinarily the notice must be published on more than one occasion, such as once a
week for three weeks.
In truth, courts realize that defendants rarely read notices published in newspapers, but the effort
must be made when the defendant cannot be found and served in any other way. Plaintiffs prefer
not to use publication because it is expensive and a court might later find that the defendant
could have been served personally.

20. Substituted service.- (1) Where the court is satisfied that there is reason to
believe that the defendant is keeping out of the way for the purpose of avoiding
service, or that for any other reason the summons cannot be served in the
ordinary way, the court shall order the summons to be served by affixing a copy
6

Sunil Poddar v Union Bank Of India(2008)2 SCC 326

thereof in some conspicuous place in the court house, and also upon some
conspicuous part of the house (if any) in which the defendant is known to have
last resided or carried on business or personally worked for gain, or in such
other manner as the court thinks fit.
(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 serviceService 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 fixedWhere 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.

The summon published in newspaper which is attached along with this tutorials is in terms of
OVRXX1(A) because the newspaper is a daily newspaper having wide publication in the area
where defendant known to last reside so as he can be made aware that his presence is required by
the court. The intention behind this section is that newspaper is that one thing which is accessible
to every common man and is widely read. So in case defendant is not found or he is escaping
from process server to effect service , newspaper cannot be avoided and hence he cannot take
plea of ineffective service.

TUTORIAL VIII
Explain the position of law where defendant has been proceeded exparte and on the date of
subsequent hearing wants to participate in the proceeding. Explain as to whether he is
required to file application before the court for the said relief.
Order 9 rule 6 says:

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 servedlf it Is proved that the summons was duly served, the court
may make an Order that the suit be heard ex parte;
(b) When summons not duly servedif 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 timeif it is proved that the summons was served on
the defendant, but not insufficient 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 owning to the plaintiffs 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.
Order 9, Rule 6, is not meant to be a penal clause but is only meant to prevent undue delay. If the
defendant chooses not to appear after he has been served, the court may proceed in his absence,
but if he subsequently appears he ought not to be debarred from taking any further Part in the
proceedings even if he can show no good cause for his absence: all that the Code says in Order 9,
Rule 7, is that, if he does show good cause, the ex parte order may be set aside and the defendant
heard in answer to the suit, as if he had appeared on the date fixed. That means that the case is
put back to the stage at which it had arrived when the defendant first failed to appear; and the
defendant suffers no loss or disadvantage through his non-appearance except perhaps an order

for costs. If however the defendant fails to show good cause, he cannot claim any rehearing, and
what has already taken place in his absence must stand. As regards future proceedings however
he should not he debarred from appearing and contesting the suit.
in Venkatasubbiah v. Lakshminarasimhan, 7observed:
"One cardinal principle to be observed in trials toy a court obviously is that a party has a right to
appear and plead his cause on all occasions when that cause comes on for hearing. It follows that
a party should not be deprived of that right, and in fact the court has no option to refuse that
right, unless the Code of Civil Procedure deprives him of it. Is there any rule of procedure then
which gives power to a court to say to a party when he appears to plead his case that it cannot
heat him because at the previous hearing he was absent? I do not so read Order 9, Rule 7. That
applies to a Party who wishes to be relegated back to the position which he would have been in if
he had appeared at a previous hearing at which he was absent, and who wishes the Proceedings
taken in his absence to be taken over again in his presence, so that he may regain the
opportunities of cross-examination, etc., which he lost by his absence. After all "ex parte" only
means that the party has not been heard because he was absent and the adjournment of the
Rearing "ex parte" in. the words of Rule 7 applies only to the heaving on the particular day when
that hearing and adjournment "ex parte" was made."
In the words of justice Wallace even a defendant who fails to show good cause for his previous
non-appearance is not debarred from participating in the further conduct of the case and that the
original order only covers the Period during which the party was originally absent. He proceeds
to point out that where good cause for non-appearance is shown, the party would be relegated
back to the position which he would have been put in if he had appeared at the previous hearing
i.e., that proceedings which have taken place in his absence could be re-opened so as even to
give him the opportunity of cross examining witnesses that had been examined in his absence.
This principle has generally been adopted in most of the reported cases vide Pattanna v. Neeli
Chetti, ILR 51 Mad 597: (AIR 1927 Mad 1197): Arumugam Pillai v. Kandaswami Pillai, AIR
1928 Mad 211 (2); and Harba v. Mt. Chandrabhaga, AIR 1931 Nag 122.

AIR 1925 Mad 1274.

The position is that the sdefendant against whom an order declaring him ex parte was passed on
the date of the first hearing is entitled to come in and take part in the trial at a later stage. If he
agrees to be bound by what has taken Place during his absence he need not make an application
under Order 9, Rule 7, C.P.C., and get the order set aside; he can continue from the stage at
which he appears.
However, if he desires to cross-examine the witnesses examined before he entered appearance he
can apply under Rule 7 and get an order, in which case he can claim an opportunity to crossexamine the witnesses examined before he entered appearance. In such a case, what he seeks is
to be relegated back to the position he would have been in if he was present on the day on which
evidence was taken. Had he been so Present he would have got an opportunity to cross-examine
the plaintiff's witness. This is the right which he can exercise after getting an order under Order
9, Rule 7.

TUTORIAL IX
It is imperative on a court of law to put back the defendant in possession of a property
which has been attached in execution of a decree where the decrees have been set aside.
Discuss.
Let us understand the above through an illustration:
Illustration B is in a possession of a Black Acre. A files a suit for ownership against B. B
lost the suit and by the ex parte decree was evicted by A. B moves an application under Order
IX rule 13 and the court comes to the conclusion that the decree needs to be scrapped away. The
issue which arises is whether the clock should be put back to the position, where B was in
possession of Black Acre?
As B was first in possession and it was because of the decree that B was evicted from the
Black Acre. After the decree is scrapped off, B should be restored the possession of Black
Acre, as the matter should be said to be still pending. Moreover the decree which empowers A
to evict B, and when that decree is nullified it demands that B should be restore the
possession of Black Acre.
Section 144 of CPC also says the same, it attacks that if a decree or an order is varied or reversed
or is set aside or modified, an application u/s 144 made to the court which passed that order or
decree will act as if no decree was passed and will put the parties back to the same position
before the proceedings. A status quo would be maintained of the initial stage of the suit.
Illustration: In the matter between A and B, a decree was passed and B had to pay Rs 10 lack to
A. B sold Black Acre to pay Rs. 10 lack to A. Later B filed an appeal that the decree is erroneous
and the court set aside the decree. After hours the decree was set aside, B filed an application u/s
144 for the restitution of Black Acre. The question in debate is, whether Black Acre can be
restituted in the particular situation?
Section 144 states further that any order made under the section for refund, payment of interest,
damages, compensation and mesne profit must be consequential to the variations, reversal,
setting aside or modification of the decree or order. In the above case restituting Black Acre
would not be consequential as those were other ways which B could have chosen to satisfy the

decree and moreover restituting black acre would be unjust to the third party who bought black
acre.
Coming to the case laws, the doctrine of restoration was first evolved by Cairn in the land mark
judgment of Rodger vs comptoir de Paris,8 where he held that the principle amount along with
the interest should be restored.
In India the Privy Council in the case of The Bexhan vs. Kedar Nath Marwari,9 it was held that
relief of restoration is not discretionary. If an erroneous decree has been passed by the court, then
the person affected has to be put back onto the position as if no decree was passed. The Supreme
Court in Lala Bhagwan Das vs Lala Krishna Das,10 reiterated the Privy Council and held that
the Section 144 has the same powers.
In Union Carbide Corp. v. Union of India,11 the settlement in Bhopal Gas Disaster case was set
aside and Union Ccarbide was entitled to restitute the entire amount deposited with interest.

1871 LB3 PC 465.

1922 PC.

10

1953 SCR 559.

11

AIR 1992 SC 248.

TUTORIAL X
An applicant has challenged as unconstitutional the provisions of admissions in a
university. Analyse the essential postulates for the grant of interim relief and whether such
an applicant shall be in a position to get admission under provision of Order XXXIX Rule
1 and 2.
Every court is constituted for the purpose of administering justice among parties and, therefore,
must be deemed to possess all such power as may be necessary to do full and complete justice to
the parties before it.
It is well settled principle of law that interim order can always be granted in the aid of and as
ancillary to the main relief available to the party on final determination of his rights in asuit or
any other proceeding. Therefore, a court undoubtedly possesses the power to grant interim relief
during the pendency of the suit.
Object of granting Interim Relief
The primary purpose of granting interim relief is the preservation of property in dispute till legal
rights and conflicting claims of the parties before the court are adjudicated. It aims at striking a
delicate balance between two conflicting interests i.e. injury and prejudice, likely to be caused to
the plaintiff if the relief is refused; and injury and prejudice likely to be caused to the defendant
if the relief is granted. The court in the exercise of sound judicial discretion can grant or refuse
the interim relief.
The underlying object of granting temporary injunction is to maintain and preserve status quo at
the time of institution of the proceedings and to prevent any change in it until the final
determination of the suit. It is in the nature of protective relief granted in favour of a party to
prevent future possible injury.
Order XXXIX Rule 1 and 2
1. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by
affidavit or otherwise

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to
defrauding his creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit,the court may by Order grant a
temporary injunction to restrain such act, or make such other Order for the purpose of staying
and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or
dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any
property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further
orders.
2. Injunction to restrain repetition or continuance of breach.- (1) In any suit for
restraining the defendant from committing a breach of contract or other injury of any kind,
whether compensation is claimed in the suit or not, the plaintiff may, at any time after the
commencement of the suit, and either before or after judgment, apply to the court for a
temporary injunction to restrain the defendant from committing the breach of contract or
injury complained of, or any breach of contract or injury of a like kind arising out of the same
contract or relating to the same property or right.
(2) The court may by Order grant such injunction, on such terms, as to the duration of the
injunction, keeping an account, giving security, or otherwise, as the court thinks fit.
Principles for holding Interim Relief
Generally before granting interim relief, the Court must be satisfied about the following factors:
(i) Whether the plaintiff has a prima facie case?
(ii) Whether the plaintiff would suffer irreparable injury ?
(iii)Whether the balance of convenience is in favour of the plaintiff?

The above three rules are described as three pillars on which foundation of every order of
interim relief rests. All these three elements are of extreme importance.
Power to grant interim relief is extraordinary in nature and it can be exercised cautiously and
with circumspection. A party is not entitled to this relief as a matter of right or course. Grant of
injunction being equitable remedy, it is in the discretion of the court and such discretion must be
exercised in favour of the plaintiff only if the court is satisfied that, unless the defendant is
restrained by an order of injunction, irreparable loss or damage will be caused to the plaintiff. In
reply to the question above A court cannot give an answer in affirmation when it comes to the
grant of interim relief neither it can give an answer to negate the rights of a person. So, to
maintain the delicate balance between the three basic principles of grant of interim relief and to
meet the ends of justice in my opinion the Court will pass any such order as it deems fit but
cannot pressurise the administration to give the admission to the applicant till the pendency of
the case.