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(..18..)

SPECIAL SUITS

QUESTION BANK

Q.1. Explain provisions as to Suits by or against Government.

Q.2. Explain provisions as to Suits by or against aliens, foreign rulers, ambassadors and

envoys.

Q.3. Explain provisions as to Suits by or against firms.

Q.4. Explain provisions as to interpleaded suit.

Q.5. Explain provisions as to Suits by an indigent person.

Q.6. Explain provisions as to Suits relating to mortgages.

Q.7. Explain provisions as to summary suit.

Q.8. Explain provisions as to suit relating to public nuisance.

SHORT NOTES

1) Summary suit.

2) Suit relating to public nuisance.

3) Suit against the Government.

SYNOPSIS

I) Suits by or against Government (Ss. 79 to 82 and O. 27)-

a) Suit against Government requires notice (S. 80)-

b) Leave to proceed without notice (S. 80 (2)-

c) Rules as to the institution of ‘suits by or against Government’-

(1) Title in a suit by or against Government (S. 79)-

(2) Signing and verification (O. 72, R. 1)-

(3) Government pleader is an agent of Government (R. 4)-

(4) Fixing day for appearance (R. 5)-

(5) Duty of Court to assist in arriving at settlement (R. 5 B)-

(6) No security from Government (R. 8 A)-

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(7) Exemption from arrest (S. 81)-

(9) No execution, up to 3 months from any decree (S. 82)-

II) SUIT BY OR AGAINST ALIENS, FOREIGN RULERS, AMBASSADORS AND

ENVOYS (Ss. 84 to 87 A)

A) Suits by or against foreign states or rulers -

a) Definitions (S. 87-A)-

b) Rules as to suit by or against foreign States or Ruler-

(1) When foreign State may sue (S. 84)-

(2) Suit against foreign Rulers, etc., requires consent (S. 86)-

Grounds of consent-

B) Any Ruler of a former Indian State (S. 87-B)-

C) SUITS BY ALIENS (S. 83)-

III. SUITS BY OR AGSINT FIRMS

(O. XXX)

Rules relating to suits by or against firms (Rules. 1 to 9)-

1) Suing of partners in the name of the firm (R. 1)-

2) Service of summons (R. 3)-

3) Appearance of partners-

4) Suits between Co-partners (R. 9)-

IV. INTERPLEADER SUIT

(Ss. 88, O. 35)

Rules relating to interpleaded suit (O. 35)-

(1) Plaint in interpleader suit (R. 1)-

(2) Payment or deposit in Court (R. 2)-

(3) Procedure where the defendant is suing (R. 3)-

(4) Procedure at hearing (R. 4)-

(5) Agents and tenants cannot institute interpleader suit (R. 5)-

V. SUIT BY INDIGENT PERSONS

(O. XXXIII)

Rules relating to suits by indigent person-

1) Contents of application and procedure of presentation (R. 2 and 3)-

2) Rejection of application (R. 5)-

3) Inquiry as to the indigent person (Rules. 1 A and 7)-

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4) Procedure if the application is admitted (Rules. 8 and 9A)-

5) Procedure if the application is rejected (Rules. 15, 15A)-

6) Revocation of permission (R. 9)-

7) Recovery of Court-fees where the suit of indigent person succeeds-

8) Recovery of Court-fees where the suit of an indigent person fails (R. 16)-

VI. SUIT RELATING TO MORTGAGES

(O. XXXIV)

A) SUIT FOR MORTGAGE-

Rules as to mortgage-

Parties to suits for foreclosure, sale and Redemption (R. 1)-

B) SUIT FOR FORECLOSURE (Rules. 2 and 3)-

(i) Preliminary decree (R. 2)-

(ii) Final decree (R.3)-

C) SUIT FOR SALE-

i) Preliminary Decree (R. 4)-

ii) Final Decree-

d) SUIT FOR REDEMPTION-

(i) Preliminary decree (R. 7)-

(ii) Final Decree-

Sale of property subject to prior mortgage (R. 12).

Application of proceeds (R. 13)-

VII. SUMMERY SUIT (O. 37)-

Rules relating to Summery suit (O. 37)-

1) Courts and classes of suits to which summary procedure applies (R. 1).

2) Procedure for institution and appearance of the defendant (Rules 2 and 3)-

The differences between ‘summary suit; and ‘ordinary suit’ is as follows-

VIII. SUITS RELATING TO PUBLIC NUISANCE

1) Public nuisance: meaning-

2) Rules relating to public nuisance (R. 91)-

a) Who may sue-

b) Remedies against Public nuisance-

For the purpose of the procedure, suits may be divided into –

(i) Suits in general – to which general procedure (which we have discussed so far) applies,

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and

(ii) Suits in special cases- which in addition to general suits, require some special

procedure, enumerated in Ss. 79 to 93 and O (‘O’ is used for the term ‘Order’) 27 to 37

of the Civil Procedure Code.

We will discuss the procedure in some special types of suits as prescribed in the

Code.

I) Suits by or against Government (Ss. 79 to 82 and O. 27)-

a) Suit against Government requires notice (S. 80)-

Issuing notice to the Government before filing suit is condition president (i.e.

necessary condition). In the absence of such notice, the plaint of the plaintiff is liable to be

set aside.

According to S. 80, “no suit shall be instituted against the Government or against a

public officer in respect of any act purporting to be done by such public officer in his

official capacity, until the expiry of two months next after notice in writing has been

delivered to, or left at the office of- (i) secretary to that Government, or (ii) in case of the

railway- to the General Manager of railway, (iii) in case of public officer- to such public

officer.

The object of giving notice is to inform and offer an opportunity to the Government

or a public officer to consider the legal position and settle the claim, if found just.

b) Leave to proceed without notice (S. 80 (2)-

Clause 2 of S. 80 is an exception to the rule discussed above. It enables the plaintiff

to institute suit against the Government or the public officer for obtaining urgent or

immediate relief with the leave of the Court, even without serving notice to the

Government or the public officer.

The provision is made to save the plaintiff from a miscarriage of justice. With the

court's permission, an injunction against the Government or an officer can be obtained even

without giving notice.

c) Rules as to the institution of ‘suits by or against Government.’-

(1) Title in a suit by or against the Government (S. 79)-

In a suit by or against the Government, the authority to be named as a plaintiff or

defendant, as the case may be, shall be

(a) in the case of a suit by or against the Central Government,- The Union of India, and

(b) in the case of a suit by or against State Government- the State.

(c) where a suit is filed against a public officer in respect of any act purporting to be done

by him in his official capacity- the concerned Government should be joined as a party

to the suit.

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(2) Signing and verification (O. 27, R. 1)-

In a suit by or against the Government, the plaint or written statement is to be signed

and verified by the person appointed by the Government and has knowledge of the facts of

the case.

(3) A government pleader is an agent of the Government (R. 4)-

The Government pleader in all Courts shall be the agent of the Government for the

purpose of receiving process against the Government issued by such Court.

(4) Fixing day for appearance (R. 5)-

A reasonable time is to be granted to the Government for communication and filing

written statements. Further adjournments are also to be given, but such adjournments

should not be for more than two months in aggregate.

(5) Duty of Court to assist in arriving at a settlement (R. 5 B)-

In every suit against the Government or public officer, the court has the duty to

assist parties in arriving at a settlement.

(6) No security from the Government (R. 8 A)-

No security shall be required from the Government or from any pubic officer sued

in respect of an act alleged to have been done by him in his official capacity.

According to S. 81, the Court can grant permission for a government officer's

personal attendance if it is satisfied that his absence from the office will be detrimental to

public service.

(7) Exemption from arrest (S. 81)-

A public officer is not liable to be arrested, nor shall his property be liable to be

attached otherwise in the execution of the decree, in respect of any act purporting to be

done by him in his official capacity.

(9) No execution, up to 3 months from any decree (S. 82)-

No execution shall be issued from any decree passed against the Government or a

public officer unless it remains unsatisfied for three months from the date of the decree.

II) SUIT BY OR AGAINST ALIENS, FOREIGN RULERS, AMBASSADORS AND

ENVOYS (Ss. 84 to 87 A)

A] Suits by or against foreign States or rulers -

a) Definitions (S. 87-A)-

(1) “Foreign State”- means ‘any State outside India, which has been recognised by the

Central Government

(2) “Ruler”- in relation to a foreign state, means the person who is time being recognised

by the Central Government to be the head of the State”.

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The Ruler of a foreign state may sue and be sued in the name of his State, but the

Central Government may direct that the Ruler may be sued in the name of an agent or in

any other name.

b) Rules as to suit by or against foreign States or Ruler-

(1) When foreign State may sue (S. 84)-

A foreign State can sue in any competent Court provided that such suit is for the

enforcement of a private right vested in the Ruler of that State or any office of such State

in his public capacity.

(2) Suit against foreign Rulers, etc., requires consent (S. 86)-

The ruler of any foreign state shall not be sued in the Indian Court competent to try

the suit except with the consent of the Central Government certified in writing by the

secretary to that Government.

However, a person who is a tenant of immovable property may sue without such

consent of a foreign State from whom he holds or claims to hold the property.

The Central Government may satisfy in its consent the Court in which the foreign

State may sue.

Grounds of consent-

The Central Government shall not give consent unless it appears to the Central

Government that the foreign State-

(a) has instituted a suit against the person designing to sue it, or

(b) (by itself or through another), trades without the local limits of the jurisdiction of the

Court, or

(c) is in possession of immovable property situated within those limits and is to be sued

with reference to such property or for the money charged thereon, or

(d) has expressly or impliedly waived the privilege accorded to it by this section.

No Ruler of a foreign state shall be arrested under this Code. Moreover, no decree

shall be executed against the property of any foreign Ruler except by the consent of the

Central Government certified in writing by a Secretary to that Government.

The aforesaid provision shall also apply to- (a) any Ambassador or Envoy of a

foreign State, (b) any High Commissioner of a Commonwealth country, (c) any such

member of staff or retains of Ambassador, or of the High Commissioner of a Commonwealth

country as the Central Government may by general or special order specify in this behalf as they

apply in relation to the Ruler of a foreign State.

B) Any Ruler of a former Indian State (S. 87-B)-

“Former Indian State” means any such Indian State as the Central Government may, by

notification in the official Gazette, specify for the purpose of this section.

S. 87-B provides that, in the case of a suit by or against the Ruler of any former Indian

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State, which is based wholly or partly upon the case of action which arose before the

commencement of the Constitution (i.e. 26 January 1950), or any proceeding arising out of the

such suit, the provisions mentioned above (i.e. under Ss. 85 and 86) shall apply.

C) SUITS BY ALIENS (S. 83)-

Alien friends and alien enemies residing in India, with the permission of the Central

Government, may sue in any Court otherwise competent to try the suit as if they were Indian

Citizens. However, those residing in India without the permission of the Central Government or

residing in a foreign country cannot sue in Indian Court.

Every person residing in a foreign country, the Government of which is at war with India

and carrying business in that country without a license on that behalf granted by the Central

Government, be deemed to be an ‘alien enemy’ residing in a foreign country.

III. SUITS BY OR AGSINT FIRMS(O. XXX)

O. XXX, Rules. 1 to 9 envisages rules relating to the Suits by or against a firm, and

R. 10 deals with persons carrying on business in names other than their own.

Rules relating to suits by or against firms (Rules. 1 to 9)-

1) Suing of partners in the name of the firm (R. 1)-

Two or more persons claiming or being liable as partners and carrying on business

in India may sue or be sued in the name of the firm of which they were partners when the

cause of action accrued.

The names and addresses of the partners may be given to the Court on the

application of any party (Rules. 1 and 2).

In a suit by or against a firm, any one of the partners may sign, verify or certify the

pleading. In other words, any pleading signed, verified or certified by any one of the parties

shall be given to the Court.

If any of the partners dies before or during the suit, it shall not be necessary to make

legal representatives of such partner a party, but the right of a legal representative to apply

to be made a party or to enforce any claim against the survivor shall not be affected thereby

(R. 4).

2) Service of summons (R. 3)-

Summons on a firm shall be served either upon one or more of the partners or upon

any person controlling or managing the partnership at his principal place of business in

India. However, if the plaintiff knows the dissolution of the partnership before the

institution of the suit, it shall be served on every person sought to be held liable in India.

3) Appearance of partners-

Rules 6 to 8 deal with appearance, non-appearance and appearance under protest.

Where persons are sued as partners in the name of their firm, they shall appear individually

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in their own names, but all subsequent proceedings shall continue in the name of the firm

(R. 6).

If a notice is served on a person having control or management over the partnership

business, he need not appear unless he is a partner in the firm (R. 7).

Any person served with a summons as a partner to appear may appear with protest

and deny that he was a partner of the firm at the material time (R. 8). He may then request

to the Court to have an issue of his partner be decided first.

4) Suits between Co-partners (R. 9)-

Suits between Co-partners means-

(i) Suit between a firm and one or more partners in common, and

(ii) suits between firms having one or more partners in common.

No execution shall be issued in such suits between Co-partners except by the leave

of the Court.

5) Form of the plant.

IV. INTERPLEADER SUIT (Ss. 88, O. 35)

In an interpleader suit, the real dispute is between the defendants, not between the

plaintiff and the defendant.

In an interpleader suit, defendants interplead (plead among themselves), unlike in

ordinary suits.

According to the Oxford Dictionary – ‘to interplead’ means ‘to litigate with each

other to settle a point concerning a third party’.

In other words, in every interpleader suit, there is some sum of money or debt or

other property in dispute between the defendants only, and it is in the custody or possession

of the plaintiff. The plaintiff claims no interest therein except the charges and costs, and he

is ready to deliver it to such of the defendants as the Court may declare to be entitled. In

such case, the plaintiff institutes the suit of inter-pleader against the claimants for the

purpose of obtaining a decision as to the person to whom the payment or delivery shall be

made (S. 88).

Illustration

A deposits a box of jewels with B as his agent. He then writes to C for the purpose of

making the jewels secure for a debt due himself to C. A afterwards alleges that C’s debt is

satisfied, and C alleges the contrary. Both claim the jewels from B. B. may institute an

interpleader suit against A and C.

However, no such suit shall be instituted where any suit is pending in which the

rights of the parties can properly be decided.

Rules relating to interpleader suit (O. 35)-

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(1) Plaint in interpleader suit (R. 1)-

In every interpleader suit, the plaintiff shall, in addition to other statements

necessary for plants, State-

(a) that the plaintiff claims no interest in the subject matter in dispute other than the charges

or costs,

(b) several claims have been made by defendants.

(c) that there is no collusion between the plaintiff and any of the defendants.

(2) Payment or deposit in Court (R. 2)-

The Court may order the plaintiff to deposit the amount or place the property in the court's

custody and reimburse him for the costs incurred by charging him on the thing claimed.

(3) Procedure where the defendant is suing (R. 3)-

Where any of the defendants in the interpleader suit has already sued the plaintiff in

respect of the subject matter of the interpleaded suit, the Court may stay such an already

filed suit by the defendant against the plaintiff.

(4) Procedure at hearing (R. 4)-

(a) At the first hearing, the Court may-

(i) declare that the plaintiff is discharged from all liability to the defendants in

respect of the thing claimed, award him his costs and dismiss him from the suit; or

(ii) if justice so requires, retain all parties until the final disposal of the suit.

(b) On the admission of parties or other evidence, adjudicate the title to the thing claimed,

or

(c) frame issues and try the suit.

(5) Agents and tenants cannot institute interpleader suit (R. 5)-

An agent cannot sue his principal and a tenant, his landlord, for the purpose of

compelling them to interpleader suit with persons other than the persons claiming through

such principals or landlords.

(6) Form of the plaint.

V. SUIT BY INDIGENT PERSONS (O. XXXIII)

An indigent person is also called a ‘pauper’, or the capacity in which he sues is

called a ‘form pauperise. A person is a pauper when (i) he is not possessed sufficient means

to enable him to pay court fees for the plaint in the suit, or (ii) where a court fee is not

prescribed, he is not entitled to property worth Rs. 1000 (one thousand), besides his

necessary wearing apparel and the subject matter of the suit (R. 1- Explanation I).

To decide whether the person is indigent (or pauper), any property acquired by such

person after filing a pauper application till deciding such application is to be taken into

consideration. In other words, if such a person acquires property after filing a pauper

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application, which is sufficient to enable him to pay Court fees or, in the second case, he

gets the property worth more than 1000, he ceases to be a pauper and has to pay Court-

fees.

Explanation III provides that when a person sues in a representative capacity, the question

of whether he is an indigent person shall be determined with reference to the means

possessed by him in such capacity.

Rules relating to suits by indigent person-

1) Contents of application and procedure of presentation (R. 2 and 3)-

To sue as an indigent person, the plaintiff shall make an application to the Court in

writing, giving the particulars of the plaint in suit and schedule of the applicant’s movable

and immovable properties with their value; it shall be signed and verified as a plaint, and

it shall be presented by the applicant or his agent. The applicant is exempted from appearing

in Court.

2) Rejection of application (R. 5)-

Application to sue as indigent cannot be disposed of without deciding the fact of

pauperism. An application for permission to sue as an indigent person will be rejected in

the following cases-

(a) where the application is not framed and presented in a prescribed manner or

(b) where the applicant is not an indigent person or

(c) where the applicant, within the period of two months before the presentation of the

application, disposed of any property fraudulently or in order to get permission to use

it as an indigent person.

(d) Where the applicant does not show any cause of action; or

(e) where he has entered into an agreement with reference to the subject matter of the

proposed suit and in which any person has obtained an interest.

(f) where the suit is barred by the law or

(g) where any other person has entered into an agreement with him to finance the litigation.

3) Inquiry as to the indigent person (Rules. 1 A and 7)-

Every inquiry as to the means of the applicant is to be conducted by the Chief

Ministerial Officer of the Court. The Court may adopt the report of such officer or may

itself make an inquiry (R. 1-A).

The court then issues notice to opponents to receive evidence on the applicant's

indigency. Such notice shall be issued on such date as gives at least 10 days to the

opponents.

On the day fixed for the hearing, the Court shall examine the witness regarding the

applicant's indigency and then may allow or refuse to allow the applicant (R. 7).

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4) Procedure if the application is admitted (Rules. 8 and 9A)-

Where the application to sue as an indigent person is granted, it shall be numbered

and registered and shall be deemed to be a plaint in the suit, and it shall proceed as an

ordinary suit, except that the plaintiff shall not be liable to pay any Court fee or fee for

service of process.

5) Procedure if the application is rejected (Rules. 15, 15A)-

An order refusing to allow the applicant to sue as an indigent person shall be a bar

to his subsequent application of the like nature in respect of the same right to sue. However,

he can file suit as an ordinary plaintiff paying Court fees and allied charges (R. 15).

Where the Court rejects an application to sue as an indigent person, it will grant time

to the applicant to pay court fees (R. 15A).

6) Revocation of permission (R. 9)-

The Court may, on the application of the defendant or of the Government pleader,

order the permission granted to the plaintiff to sue as an indigent person be withdrawn-

(a) if he is guilty of vexatious or improper conduct in the course of the suit,

(b) if it appears that his means are such that he ought not to continue to sue as an indigent

person or

(c) if he has entered into any agreement with reference to the subject matter of the suit

under which any other person has obtained an interest in such subject matter.

7) Recovery of Court-fees where the suit of indigent person succeeds-

Where an indigent person’s suit succeeds, he will have to pay Court fees¹, and the

State Government can recover it from any party to the suit. The charge for Court fees is

created on the subject matter of the suit².

Moreover, the State Government has the right to apply for Court fees at any time

(R. 12). The State Government is deemed to be one of the parties to indigent suits (R. 13).

8) Recovery of Court-fees where the suit of an indigent person fails (R. 16)-

Where an indigent person's suit fails, or the permission granted to him to sue as an

indigent person has withdrawn or dismissed, on default of the plaintiff, the Court may order

him to pay Court fees (R. 11).

If the suit abates due to the death of the plaintiff, the Court can order the recovery

of Court fees from the property of such deceased plaintiff (R. 11-A).

VI. SUIT RELATING TO MORTGAGES

(O. XXXIV)

¹(R. 10)

²Ibid (written in above foot note).

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O. XXXIV deals with suits relating to mortgages of immovable property. It lays down rules

for framing suits, for sale, for foreclosure, Redemption of the mortgaged property and for

enforcement of charges.

A) SUIT FOR MORTGAGE-

According to S. 58 (a) of the Transfer of Property Act, 1882-

“A mortgage is-

(i) the transfer of an interest in specific immovable property,

(ii) for the purpose of securing the payment of

(a) money advanced (or to be advanced) by way of a loan,

(b) an existing or future debt or,

(c) the performance of an engagement which may give rise to a pecuniary liability”.

Rules as to mortgage-

Parties to suits for foreclosure, sale and Redemption (R. 1)-

All persons having an interest either in the mortgage security or in the right of

Redemption shall be joined as parties to any suit relating to the mortgage.

The object of this provision is that all claims affecting the equity of Redemption

may be disposed of in one and the same suit. In other words, avoiding multiplicity of

proceedings is the chief purpose.

B) SUIT FOR FORECLOSURE (Rules. 2 and 3)-

A suit by a Mortgagee to obtain a decree that a mortgagor shall be absolutely

debarred of his right to redeem the property is called a suit for foreclosure. The Mortgagee

has the right to obtain from the court a decree for foreclosure of a mortgaged property or

for the sale of the property at any time after the mortgage money has become due.

(i) Preliminary decree (R. 2)-

In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary

decree-

a) ordering that an account be taken of what was due to the plaintiff at the date of such

decree for principal and interest on the mortgage, the costs of the suit awarded to him,

and other costs, charges and expenses properly incurred by him; or

b) disclosing the amount so due, and

c) directing that if the defendant pays into the Court, the said amount, on or before such

date fixed or extended by the Court, the plaintiff shall deliver to the defendant all

documents in his possession relating to the mortgaged property and transfer the

property to the defendant free from the mortgage and all encumbrances created by the

plaintiff and put the defendant in possession thereof.

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If the payment is not made on or before the date so fixed, the plaintiff shall be

entitled to apply for the final decree debarring the defendant from all rights to redeem the

property.

(ii) Final decree (R.3)-

Where the payment is made by the defendant on or before the date fixed, the Court

shall, on the application made by the defendant, pass the final decree ordering the plaintiff

to deliver the documents referred to in the preliminary decree and, if necessary, order him

to re-transfer at the cost of the defendant the mortgaged property and also, if necessary,

order him to put the defendant in possession of the property.

However, where the payment is not made by the defendant on or before the date so

fixed, the Court shall, on an application made by the plaintiff, pass a final decree disclosing

that the defendant and all persons claiming through or under him are debarred from all

rights to retransfer the mortgaged property and also, if necessary, ordering the defendant

to put the plaintiff in possession of the property. On the passing of a final decree, all

liabilities of the defendant in respect of the mortgage shall be discharged.

C) SUIT FOR SALE-

i) Preliminary Decree (R. 4)-

If the plaintiff succeeds in a suit for sale, the Court shall pass a preliminary decree

in the manner mentioned above. However, in case of default by the defendant, the plaintiff

is entitled to apply for a final decree directing that the mortgaged property be sold, and the

sale proceeds are applied in payment of the amount due to the plaintiff.

ii) Final Decree-

Where on or before the day fixed or at any time before the confirmation of a sale

made in pursuance of a final decree, the defendant makes payment into the Court of all

amounts due, the Court shall, on an application made by the defendant, pass a final decree

directing the plaintiff to deliver to the defendant all the documents (referred to in the

preliminary decree) in his possession.

But where the defendant fails to make payment as directed by the Court, the Court

shall, on an application of the plaintiff, pass a final decree directing the sale of mortgaged

property (R. 5).

Where the net proceeds of any sale are insufficient to pay the amount due to the

plaintiff, the Court may order the recovery of the balance amount if the amount is

recoverable. Suppose the amount exceeds, the Court orders to pay the such excess amount

back to the defendant (R. 6).

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D) SUIT FOR REDEMPTION-

A suit by the Mortgagor to get back mortgaged property from the Mortgagee on

repayment of mortgage money is called a suit for Redemption.

(i) Preliminary decree (R. 7)-

If the plaintiff succeeds in a suit for Redemption, the Court shall pass a preliminary

decree in the manner mentioned above.

In default by the plaintiff in payment of the amount ordered, within time, the

defendant is entitled to apply for a final decree that the mortgaged property be sold or that

the plaintiff be debarred of his right to redeem the mortgaged property, depending upon

the nature of the mortgage.

(ii) Final Decree-

Where before a final decree debarring the plaintiff from all the rights to redeem the

mortgaged property has been passed, or before the confirmation of the sale, if the plaintiff

pays all amounts due, the Court shall, on an application made by the plaintiff, pass a final

decree directing the defendant to deliver to the plaintiff, all the documents referred in the

preliminary decree to transfer the mortgaged property and to put the plaintiff in possession

thereof.

In default of payment by the plaintiff in a fixed period, the Court shall, on an

application of the defendant, pass a final decree directing that the mortgaged property be

sold and proceeds thereof be applied in payment of the amount found due to the defendant

and the balance, if any be paid to the plaintiff.

In addition, the Court can order payment of costs, mesne profits and interest in

mortgage suits (Rules 10, 10 A and 11).

Sale of property subject to prior mortgage (R. 12).

Where the sale of any property directed is subject to the prior mortgage, the Court

may, with the consent of the prior mortgage, direct that the property be sold free from the

same, giving to such prior mortgagee the same interest in the proceeding of the sale as he

had in the property sold.

Application of proceeds (R. 13)-

Application of sale proceeds be made in the following order-

a) first, in payment of all expenses incidental to the sale,

b) Secondly, in payment of the amount due to the prior mortgagee on account of the

mortgage.

c) thirdly, in payment of all interest due on account of the mortgage;

d) fourthly, in payment of the principal money due on account of a mortgage;

e) lastly, the residue (if any), shall be paid to the person entitled.

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VII. SUMMERY SUIT (O. 37)-

A summary suit is a suit in which the defendant is not allowed to appear and defend

the suit unless he obtains leave of the Court by showing that his defence is genuine by

affidavits.

If such leave is denied, the plaintiff's allegation will be deemed to be admitted, and

the plaintiff will be entitled to the decree.

The main object underlying the summary procedure is to dispose of off suits

speedily, in which there is no defence.

Rules relating to Summery suit (O. 37)-

1) Courts and classes of suits to which summary procedure applies (R. 1).

The rules regarding summary procedure shall apply to the following courts, viz-

a) High Courts, City Civil Courts and courts of small causes, and

b) other courts with restriction and power of the High Court.

In the following types of suits, a summary procedure is applied, viz-

(i) suits based upon bills of exchange, hundies and promissory notes; and

(ii) suits in which the plaintiff seeks to recover the debt or liquidated amount payable with

or without interest arising-

a) on a written contract; or

b) on an enactment (where the sum sought to be recovered is a fixed sum of money

or in the nature of a debt other than a penalty); or

c) on a guarantee where the claim against the principal is with respect to a debt or

liquidated amount only.

2) Procedure for institution and appearance of the defendant (Rules 2 and 3)-

Plaintiff may institute summary suit by presetting plaint which shall contain-

a) specific averment to the effect that the summary suit has been filed (Under O. 37).

b) that no relief, which does not fall within the ambit of this rule, has been claimed in the

plaint and

(c) the inscription (Under O. XXXVIII of the Code of Civil Procedure, 1908), is to be

written immediately below the number of the suit in the title of the suit.

The summons of the suit should be in the prescribed form. After the summons of

the suit has been issued to the defendant, the defendant must appear, and the plaintiff will

serve a summons for judgment on the defendant. The defendant is not entitled to defend a

summary suit unless he enters an appearance. In default of entering an appearance, the

plaintiff will be entitled to a decree which will be executed forthwith (R. 2).

The defendant must apply for leave to defend within ten days from the date of

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“Special Suits”

Prof. .S. D. Bhosale

134

service of summons upon him, and such leave will be granted only if the affidavit the

defendant has disclosed such facts as may be deemed sufficient to entitle him to defend (R.

3).

The differences between ‘summary suit; and ‘ordinary suit’ are as follows-

(i) In an ordinary suit, the defendant is entitled to defend the suit as of right, whereas, in a

summary suit, the defendant is not so entitled except with the leave of the Court.

(ii) Except review, the trial Court cannot set aside its own decree, whereas, in a summary

suit, the trial Court can set aside its own decree under special circumstances.

VIII. SUITS RELATING TO PUBLIC NUISANCE

1) Public nuisance: meaning-

i)

According to S. 268 I.P.C., “A public nuisance is an act or omission which causes

any common injury, danger or annoyance to the public or to the people in general, who

dwell or occupy property in the vicinity, or which must necessarily cause injury,

obstruction danger or annoyance to persons who may have occasion to use any public

right”.

ii) Generally, “A public or common nuisance is one which affects the public and is an

annoyance to the people generally who comes in contact with it”.

Thus, keeping a common gaming house or disorderly inn, obstructing a

highway, or making it dangerous for traffic would come within the category of public

nuisance.

2) Rules relating to public nuisance (R. 91)-

S. 91 prescribes the following rules-

a) Who may sue-

A suit for public nuisance is to be filed by

i) the Advocate-General, or

ii) with the leave of Court- by two or more persons, even though there is no special damage

caused to them.

iii) by private person- if he has sustained special damage.

b) Remedies against Public nuisance-

The following remedies are available against public nuisance-

a) Sue for a declaration and injunction,

b) Such other relief as may be appropriate in the circumstances of the case,

c) Punishment under S. 290 of the Indian Penal Code.

d) Abatement of nuisance by Magistrate.

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