BLS LLB 5 Years Sem 9 CPC 2018-19 Question Paper with Solutions

Explanation I to Order XXXIII Rule 1 provides that a person is an indigent person if he is not possessed of sufficient means, other than property exempt from attachment in execution of a decree and the subject-matter of the suit, to enable him to pay the fee prescribed by law for the plaint in such suit; or, where no such fee is prescribed, if he is not entitled to property worth one thousand rupees, other than that exempt property and the subject-matter of the suit.

Section 151 provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. The inherent powers are therefore the powers a civil court possesses by virtue of its being a court, which the Code recognises but does not confer.

Order V Rule 21 provides that 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, or by fax message or 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.

Abatement is the termination of a suit or appeal by operation of law where, on the death of a party whose right to sue survives, no application to bring his legal representative on record is made within the time limited by law. Order XXII Rule 3(2) provides that where no such application is made within the time limited, the suit shall abate as against the deceased plaintiff, and Rule 4(3) makes the same provision on the death of a defendant.

Review is an application to the same court which passed the decree or made the order, by a person considering himself aggrieved, asking that court to reconsider its own decision. Section 114 confers the right, and Order XLVII Rule 1 limits it to three grounds: discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him; a mistake or error apparent on the face of the record; and any other sufficient reason. Article 124 of the Limitation Act gives thirty days.

Section 2(6) defines "foreign judgment" as the judgment of a foreign court, and section 2(5) defines "foreign court" as a court situate outside India and not established or continued by the authority of the Central Government.

Section 13, when a foreign judgment is conclusive. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, or between parties under whom they or any of them claim, litigating under the same title, except:

(a) where it has not been pronounced by a court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which it was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

A fresh suit, for every other foreign judgment. The judgment is the cause of action; the Indian court does not retry the dispute but examines whether the judgment is conclusive under section 13, and if it is, passes its own decree.

Conclusion. A foreign judgment binds an Indian court only so far as section 13 lets it, and the six exceptions are the whole of the enquiry. Enforcement then takes one of two forms: execution under section 44A where the decree is of a superior court of a reciprocating territory, and a fresh suit on the judgment everywhere else. Section 13 works in both directions, because a party may equally rely on a foreign judgment as res judicata against his opponent.

(e) make such other interlocutory orders as may appear to the court to be just and convenient.

Each clause is worked out in an Order: Order XXXVIII for arrest and attachment before judgment, Order XXXIX for temporary injunctions and interlocutory orders, Order XL for receivers.

Section 95, compensation for obtaining an interim order on insufficient grounds. Where in a suit an arrest or attachment has been effected or a temporary injunction granted, and it appears to the court that there were no sufficient grounds for it, or the suit is dismissed and it appears that there was no reasonable or probable ground for instituting it, the court may, on the defendant's application, award reasonable compensation not exceeding the pecuniary limits of its jurisdiction, and such an order bars any further suit for compensation in respect of the same injury.

Stay is the suspension of a proceeding or of the operation of an order. Four provisions:

Section 10, stay of suit (res sub judice). No court shall proceed with the trial of a suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties.

Order XXI Rules 26 to 29, stay of execution. Rule 26: the court to which a decree has been sent for execution shall, on sufficient cause being shown, stay execution for a reasonable time to enable the judgment-debtor to apply to the court which passed the decree or to an appellate court. Rule 27 requires that court to be satisfied that the property would not deteriorate or that adequate security has been furnished. Rule 28 makes an order of the court which passed the decree, or of the appellate court, binding on the executing court. Rule 29: where a suit is pending against the decree-holder at the instance of the judgment-debtor, the court may stay execution until that suit is decided.

Conclusion. Interim orders and stays exist for the same reason, that a court's final decision should not be made worthless by what happens before it. Section 94 lists the interim orders and the Orders work each of them out; stay is governed by section 10 while a suit is pending elsewhere, by Order XXI Rules 26 to 29 in execution, and by Order XLI Rule 5 pending appeal. The rule that ties them together is that none of them is automatic: an appeal is not a stay, and a stay is granted only on substantial loss, promptness and security.

Section 100(5): the appeal shall be heard on the question so formulated, and the respondent shall, at the hearing, be allowed to argue that the case does not involve such a question. The proviso preserves the High Court's power, for reasons to be recorded, to hear the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such a question.

Section 101: no second appeal shall lie except on the ground mentioned in section 100.

Section 102: no second appeal shall lie from any decree, when the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees. The figure was substituted in 2002.

Section 103: in any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal which has not been determined by the lower appellate court, or which has been wrongly determined by reason of a decision on a substantial question of law.

Order XLII applies the rules of Order XLI, so far as may be, to appeals from appellate decrees, and Rule 2 requires the High Court, at the time of making an order admitting the appeal, to formulate the substantial question of law.

A counterclaim is a claim by the defendant against the plaintiff, set up in the plaintiff's own suit, which the court tries and decides along with the plaintiff's claim. It was inserted by the Amendment Act of 1976 as Order VIII Rules 6A to 6G.

Rule 6A(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 counterclaim against the claim of the plaintiff any right or claim in respect of a cause of action accruing to him 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 counterclaim is in the nature of a claim for damages or not, provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the court.

Rule 6A(2). Such counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim.

Rule 6A(3). The plaintiff shall be at liberty to file a written statement in answer to the counterclaim.

Conclusion. The value of a counterclaim over a set-off lies in Rule 6D: it is a cross-suit and it survives even if the plaintiff's suit is stayed, discontinued or dismissed. It need not be for an ascertained sum and need not arise from the same transaction, but it must be within the court's pecuniary jurisdiction and must rest on a cause of action accruing before the defence is delivered. A defendant with a genuine cross-demand should almost always prefer it, and pay the court fee.

4. He must be ready and willing to pay or deliver it to the rightful claimant;
5. No pending suit in which the rights of the claimants can properly be decided.

Order XXXV, the procedure.

Rule 1: the plaint must state, besides the ordinary particulars, that the plaintiff claims no interest in the subject-matter other than for charges or costs, the claims made by the defendants severally, and that there is no collusion between the plaintiff and any of the defendants.

Rule 2: the court may order the plaintiff to place the thing claimed in the custody of the court, and may make that a condition of proceeding.

Rule 3: where a defendant is actually suing the plaintiff over the subject-matter, the court in which that suit is pending shall, on being informed, stay it.

Adverse possession is possession of immovable property by a person who is not the owner, held openly, peaceably, continuously and as of right, hostile to the true owner and to his knowledge, for the period prescribed by the Limitation Act, 1963, at the end of which the owner's remedy is barred and his title extinguished.

Article 65. A suit for possession of immovable property or any interest therein based on title must be brought within twelve years, running from the date the possession of the defendant becomes adverse to the plaintiff. The burden of pleading and proving when the possession became adverse is therefore on the defendant.

Article 112. Where the plaintiff is the Central or a State Government, the period is thirty years.

Section 27, extinguishment of right to property. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This is the exception to the rule that limitation bars the remedy and not the right.

The essentials, remembered as nec vi, nec clam, nec precario, not by force, not by stealth, not by permission:

Section 9 is the provision: the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

The two Explanations decide the problem.

Explanation I: a suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II: it is immaterial whether or not any fees are attached to the office referred to in Explanation I, or whether or not such office is attached to a particular place.

Read the words of Explanation I carefully: the religious question is entertained because a right to property or to an office turns on it. It is the property or the office that gives the civil court its jurisdiction, not the religious question. Where no such right is contested, the religious question stands alone and the court has nothing civil before it.

The reasoning: the right to worship is not a mere religious sentiment. It is a legal right attaching to a person as a member of the community entitled to enter the temple, its infringement is an actionable wrong, and the relief sought, a declaration and an injunction restraining obstruction, is relief a civil court gives every day. It is on this footing that suits about temple entry, denial of darshan, exclusion of a class of worshippers and interference with the performance of worship have always been entertained.

The leading modern statement is in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma (1995 Supp (4) SCC 286), where the Supreme Court held that the expression "suit of a civil nature" is very wide, that the word "civil" pertains to private rights and remedies as distinguished from criminal, political or ecclesiastical, and that the section confers jurisdiction on the civil court to try all suits of a civil nature unless the cognizance is expressly or impliedly barred, the exclusion of jurisdiction being not readily inferred.

So the two limbs give different answers, and saying so is the answer: A's suit about the propriety of rites is not maintainable; a suit by a worshipper to enforce his right to worship would be.

For full marks, cover: Order IX Rule 13 as the remedy, with the thirty days under Article 123 and section 5 for the delay; the other three remedies; and, for part (ii), a concrete list of what he must file and prove.

(i) The remedy

An application under Order IX Rule 13 to set aside the ex parte decree, made to the court which passed it.

Limitation. Article 123 of the Limitation Act gives thirty days from the date of the decree, or, where the summons was not duly served, from when the applicant had knowledge of the decree. The question says Arnab applies "on recovering from hospital", so if that recovery takes him past thirty days he must file, along with the Rule 13 application, an application under section 5 of the Limitation Act for condonation of the delay, supported by an affidavit explaining the whole period, from the date of the decree to the date of the application.

The other three remedies, for completeness:

An appeal under section 96(2), since an appeal lies from an original decree passed ex parte; thirty days to the District Court under Article 116(b) or ninety days to the High Court under Article 116(a).

A review under section 114 and Order XLVII Rule 1, within thirty days under Article 124.

A suit to set aside the decree on the ground of fraud, which is not available on these facts.

the police record, the accident report, the First Information Report or the panchnama, if a motor vehicle was involved, and the insurance intimation.

On his inability to inform his advocate:

an affidavit setting out where he was, what his condition was, who was with him, and why no message could be sent;

a statement from a family member who was with him at the hospital;

the advocate's affidavit, that he had no instructions and no intimation about the hearing date, and did not appear for want of instructions;

if there is any, evidence of an attempt to communicate, a call record or a message.

On diligence up to that point:

the court record showing that he had appeared on earlier dates, filed his written statement and taken steps in the suit. A defendant with a record of attendance is far more readily believed than one who had been absent before.

On the delay, if the application is beyond thirty days:

For full marks, cover: for (i), amendment under Order VI Rule 17 and discharge of the guardian under Order XXXII Rule 11 where the suit is pending, and the position where the decree has already been passed; for (ii), that the answer is no, and the three provisions are Order XXXII Rule 3A, Order I Rule 9 and section 99; and the contrast with a decree against a real minor with no guardian appointed, which is a nullity.

(i) What the plaintiff should do

The answer depends on when he learns the truth, and both cases should be given.

If the suit is still pending:

Be ready to pay the costs of the amendment, which the court will usually impose, since the mistake was the plaintiff's: Order XXXII Rule 3(5) required his application for the appointment of a guardian to be supported by an affidavit verifying the minority, and a plaintiff who verified it carelessly cannot complain of terms.

If the decree has already been passed, as on these facts, the plaintiff's position is far better than it looks, because the defect is an irregularity and not a nullity, and it does not affect the validity of the decree. He should:

Apply under section 152 to correct the description in the decree, if the misdescription is a clerical or accidental slip in the drawing up of the decree, since section 152 permits clerical or arithmetical mistakes, or errors arising from any accidental slip or omission, to be corrected at any time;

and proceed to execute the decree in the ordinary way, meeting any objection under section 47 with the provisions set out in (ii).

(ii) Can the defendant refuse to honour the decree?

No, not on the misdescription alone. He must show that the misdescription caused him prejudice.

Three provisions decide it.

Applying them: the defendant was the right person, he was before the court, and the suit was against him. What was wrong was the description of his status, and the consequent appointment of a guardian for the suit who did not need to be appointed. That is an error, defect or irregularity in the proceedings, and it touches neither the merits nor the jurisdiction of the court.

So the question becomes whether he was in fact prejudiced. He will succeed if he can show that the guardian failed to file a written statement, or led no evidence, or admitted a fact he would have denied, or compromised without leave under Rule 7, and that a defence genuinely open to him was thereby lost. He will fail if the guardian defended competently and the case was decided on its merits.

His routes, if he can show prejudice, are: Order XXXII Rule 14, which allows a person on attaining majority to apply that a decree or order against him be set aside on the ground of the gross negligence or misconduct of his next friend or guardian for the suit; Order IX Rule 13, within thirty days under Article 123, if the decree was ex parte and he can show sufficient cause; and an appeal under section 96.

Section 9 is the foundation: the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I: a suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II: it is immaterial whether or not any fees are attached to the office, or whether or not the office is attached to a particular place.

II. The kinds of jurisdiction

1. Jurisdiction as to the subject-matter. Certain courts are precluded from trying certain kinds of suit. A Court of Small Causes cannot try a suit for specific performance, for partition, or for the dissolution of a partnership; the Family Court has exclusive jurisdiction over matrimonial causes under the Family Courts Act, 1984; a Rent Court has exclusive jurisdiction over disputes between landlord and tenant under the Maharashtra Rent Control Act, 1999; and a Commercial Court has exclusive jurisdiction over commercial disputes of the specified value under the Commercial Courts Act, 2015.

The proviso is important: a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within whose limits the property is situate or in the court within whose limits the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Section 17, suits for immovable property situate within the jurisdiction of different courts. The suit may be instituted in any court within whose local limits any portion of the property is situate, provided that the entire claim is cognizable by that court as regards the amount or value of the subject-matter.

Section 18, place of institution of suit where local limits of jurisdiction of courts are uncertain. Where it is uncertain within the local limits of which of two or more courts the immovable property is situate, any one of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of the suit, and its decree shall have the same effect as if the property were situate within its limits.

The Explanation provides that a corporation shall be deemed to carry on business at its sole or principal office in India, or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

4. Original and appellate jurisdiction. Original jurisdiction is the power to try a suit at first instance; appellate jurisdiction is the power to hear an appeal from the decision of a subordinate court. Some courts have both: a District Court tries suits above the Civil Judge's limit and hears appeals from the Civil Judge.

5. Exclusive and concurrent jurisdiction. Exclusive where only one court may try the matter; concurrent where two or more courts are competent and the plaintiff has the choice, as under sections 19 and 20.

6. Jurisdiction as to persons. Certain persons are exempt from the ordinary process: the President and the Governors under Article 361 of the Constitution; foreign sovereigns, ambassadors and envoys, who may be sued only with the consent of the Central Government certified in writing by a Secretary to that Government, under sections 86 and 87A; and rulers of foreign States.

III. Objections to jurisdiction: section 21

A decree passed by a court which had jurisdiction over the subject-matter but was wrong as to place or as to pecuniary limits is not a nullity; the defect is an irregularity, and section 21 makes it curable by the failure to object at the right time. That is the whole purpose of section 21.

Section 6 read with section 15 completes the picture: section 6 goes to competence, section 15 is a rule of procedure directing the choice of the lowest competent court, and a breach of section 15 alone is an irregularity.

The cases to cite. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, is the foundation: a defect of jurisdiction strikes at the very authority of the court, and a decree passed without jurisdiction is a nullity whose invalidity may be set up whenever and wherever it is sought to be enforced, including in execution and in collateral proceedings. Official Trustee v. Sachindra Nath Chatterjee, AIR 1969 SC 823, supplies the second limb: jurisdiction means not merely authority over the subject-matter but authority to pass the particular order sought.

For full marks, cover: first appeals under section 96 and Order XLI; second appeals under sections 100 to 103 and Order XLII; appeals from orders under section 104 and Order XLIII; appeals to the Supreme Court under sections 109 and 112 and Order XLV; the constitutional routes under Articles 132, 133, 134A and 136; and the limitation Articles.

I. Appeals to the High Court

There are three routes, and they must be kept apart.

A. First appeal, sections 96 to 99A and Order XLI

Section 96(1): save where otherwise expressly provided, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court. Where the decree is of a District Court or of a court whose appeals lie to the High Court, the first appeal is to the High Court.

Section 96(2): an appeal may lie from an original decree passed ex parte.

Section 96(3): no appeal shall lie from a decree passed with the consent of parties.

Section 100(5): the appeal shall be heard on the question so formulated, the respondent being entitled to argue that the case involves no such question; the proviso preserves the power to hear the appeal on any other substantial question of law, for reasons recorded.

Section 101: no second appeal except on the ground in section 100.

Section 102: no second appeal from a decree where the subject-matter of the original suit is for the recovery of money not exceeding twenty-five thousand rupees.

Section 103: the High Court may itself determine an issue not determined by the lower appellate court, or wrongly determined by reason of a decision on a substantial question of law, if the evidence on the record is sufficient.

The tests of a "substantial question of law" are those in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. (AIR 1962 SC 1314): the question must be of general public importance or must directly and substantially affect the rights of the parties, and it must be an open question, or one on which opinion differs, and not one whose principle is settled and requires only application.

Order XLIII Rule 1 lists the appealable orders, among them: an order under Order VII Rule 10 returning a plaint; an order under Order IX Rule 9 rejecting an application to set aside a dismissal; an order under Order IX Rule 13 rejecting an application to set aside an ex parte decree; an order under Order XXII refusing to set aside an abatement; an order under Order XXV Rule 2 rejecting an application for security for costs; an order under Order XXXIII Rule 5 or 7 rejecting an application to sue as an indigent person; an order under Order XXXVIII for arrest or attachment before judgment; an order under Order XXXIX Rules 1, 2, 2A, 4 or 10 granting, refusing or vacating a temporary injunction; an order under Order XL Rule 1 appointing a receiver; and an order under Order XLI Rules 19, 21, 23 or 23A on readmission, rehearing or remand.

D. Letters Patent Appeal. In the chartered High Courts of Bombay, Calcutta and Madras, an appeal lies from the judgment of a single Judge to a Division Bench under clause 15 of the Letters Patent, subject to section 100A, which provides that no further appeal shall lie from a judgment of a single Judge in an appeal from an original or appellate decree or order, notwithstanding anything in the Letters Patent.

II. Appeals to the Supreme Court

Order XLV, appeals to the Supreme Court. Rule 1 defines "decree" for the purposes of the Order to include a final order. Rule 2 requires the party intending to appeal to apply by petition to the court whose decree is complained of. Rule 3 requires that court to record whether the decree appealed from affirms the decision of the court below, and the ground on which the appeal is claimed. Rule 7 requires the applicant, within such time as the court may allow, to furnish security for the costs of the respondent and to deposit the amount required to defray the expense of translating, transcribing, indexing and transmitting the record. Rules 8 to 15 govern admission, the transmission of the record, and the powers of the court pending the appeal, including Rule 13, which allows the court to stay execution, or to permit execution on security being given.

B. Under the Constitution

Article 132: appeal from a judgment, decree or final order of a High Court in a civil, criminal or other proceeding, if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of the Constitution.

For full marks, cover: the definition, section 27 and Order V Rule 1 with the thirty and ninety day periods; every mode with its rule; substituted service and why it is a last resort; service on special classes; the 2025 change to speed post; and the link with Order VIII Rule 1 and Order IX Rule 6.

I. Definition

A summons is the document issued by a court, signed by the Judge or such officer as he appoints and sealed with the seal of the court, by which a defendant is called upon to appear and answer the claim made against him, or by which a witness is called upon to attend to give evidence or to produce a document.

Section 27: where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed on such day not beyond thirty days from the date of the institution of the suit.

II. The modes of service

1. Personal or direct service, Rules 10 to 18. The ordinary mode.

Rule 10: service is made by delivering or tendering a copy of the summons signed by the Judge and sealed.

Rule 12: wherever practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service.

Rule 13: in a suit relating to any business or work against a person not residing within the local limits, service on the manager or agent carrying on that business is good service.

Rule 14: where the suit relates to immovable property and the defendant cannot be found and has no agent, service may be made on any agent in charge of the property.

Rule 15: where the defendant is absent from his residence with no likelihood of his being found within a reasonable time, and has no agent, service may be made on any adult member of the family, male or female, residing with him; the Explanation provides that a servant is not a member of the family.

Rule 16: the person served shall be required to sign an acknowledgment on the original.

2. Service by the court by post, courier and electronic means, Rule 9. The court may direct service by speed post with registration and proof of delivery, or by an approved courier service, or by fax message or electronic mail service, or by any other means provided by rules made by the High Court. The wording "speed post with registration and proof of delivery" replaced "registered post acknowledgement due" throughout Order V by the Repealing and Amending Act, 2025, with effect from 20 December 2025. Where the summons is properly addressed, prepaid and sent, and the acknowledgment is lost or not received within thirty days, or the defendant refuses to take delivery, the court shall declare that the summons has been duly served.

Do not cite Rule 19A. It formerly provided for simultaneous service by registered post and was deleted by the Amendment Act of 1999; it is still printed in older textbooks.

3. Service by the plaintiff, "dasti", Rule 9A. The court may, in addition to the ordinary mode, permit the plaintiff to effect service personally. He delivers or tenders a copy signed by the Judge and sealed, and takes an acknowledgment; where the defendant refuses or cannot be found, the plaintiff affixes a copy as under Rule 17 and files an affidavit.

Rule 21: the summons may be sent, whether within or without the State, by an officer of the court, or by post, courier, fax or electronic mail, to any court, not being a High Court, having jurisdiction where the defendant resides.

Rules 22 and 23: the receiving court shall have the summons translated where necessary, proceed as if it had issued it, and return it with the record of its proceedings.

Rule 25: where the defendant resides outside India and has no agent in India empowered to accept service, the summons shall be addressed to him at the place where he is residing and sent by post, courier, fax or electronic mail.

Rule 26 and 26A: service in a foreign territory through a political agent or court, and summonses to be sent to officers of foreign countries.

6. Service on special classes of defendant.

Rule 24: on a prisoner, through the officer in charge of the prison.

Rule 27: on a public officer, or a servant of a railway company or local authority, through the head of the office in which he is employed.

That is why substituted service is a last resort: the court must record its satisfaction that the defendant is evading service or that the ordinary mode has failed. An order for substituted service made without material showing evasion is bad, and an ex parte decree that follows it is liable to be set aside under Order IX Rule 13 on the ground that the summons was not duly served. The Explanation to Article 123 of the Limitation Act reinforces this: substituted service under Order V Rule 20 shall not be deemed to be due service for the purpose of computing the thirty days to apply.

IV. What follows service

Order VIII Rule 1: the defendant shall present a written statement of his defence within thirty days from the date of service, extendable, for recorded reasons, to a maximum of ninety days from the date of service. In SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. (2019) 12 SCC 210 the Supreme Court held that for suits under the Commercial Courts Act, 2015 the 120 day limit is mandatory and the right to file is forfeited thereafter.

For full marks, cover: Article 300 as the constitutional source; sections 79 to 82 and Order XXVII; section 80 in full with sub-sections (2) and (3); section 82's three months; section 81's exemption from arrest and personal appearance; sections 133, 135, 135A and 136 on exemptions generally; and section 15(2) of the Limitation Act.

I. The constitutional source

Article 300(1) of the Constitution provides that the Government of India may sue or be sued by the name of the Union of India, and the Government of a State may sue or be sued by the name of the State, and may, subject to any provision made by Act of Parliament or of the State Legislature, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces might have sued or been sued had the Constitution not been enacted.

II. Sections 79 to 82 and Order XXVII

The notice must state the name, description and place of residence of the plaintiff, the cause of action, and the relief which he claims.

Section 80(2), the urgent relief exception. A suit to obtain an urgent or immediate relief against the Government or a public officer may be instituted with the leave of the court without serving the notice; but the court shall not grant relief in the suit, whether interim or otherwise, except after giving the Government or the public officer a reasonable opportunity of showing cause. The proviso: if the court is satisfied, after hearing the parties, that no urgent or immediate relief need be granted, it shall return the plaint for presentation after complying with sub-section (1).

Section 82, execution of a decree. Where in a suit by or against the Government, or by or against a public officer in respect of an act purporting to be done in his official capacity, a decree is passed against the Union of India, a State or a public officer, execution shall not be issued on any such decree unless it remains unsatisfied for a period of three months computed from the date of the report of the Registrar to the Government. Sub-section (3) applies the same to a decree against a public officer in respect of such an act.

III. Order XXVII: the procedure

Rule 1 provides that in any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint, and shall be verified by any person acquainted with the facts whom the Government may similarly appoint.

Rule 2: persons authorised to act for the Government shall be deemed to be the recognised agents by whom appearances, acts and applications may be made.

Rule 3: in suits by or against the Government, instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in section 79.

Rule 7: where the court is satisfied that the Government Pleader is not furnished with sufficient instructions, it shall adjourn the case; and where the defendant is a public officer who cannot absent himself from duty without detriment to the public service, the court shall not require his personal attendance.

Rule 8 provides for the procedure where the Government undertakes the defence of a suit against a public officer, and Rule 8A for no security to be required from the Government or a public officer in certain cases.

IV. Is there any exemption from arrest and personal appearance?

Yes, and there are two distinct sets of provisions.

A. The section 81 exemption, which is what the question is aimed at. In a suit instituted under section 80 against a public officer in respect of an act purporting to be done in his official capacity:

no arrest and no attachment before judgment: the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree. So the interim measures under Order XXXVIII are not available against him;

Section 133: certain persons are entitled to exemption from personal appearance, namely the President, the Vice-President, the Speaker of the House of the People, Ministers of the Union, Judges of the Supreme Court, the Governors of States and the Administrators of Union Territories, the Speakers of State Legislative Assemblies, the Chairmen of State Legislative Councils, Ministers of States, persons to whom section 87B applies, and Chairmen of the Council of States and Deputy Chairmen and Deputy Speakers. Where such a person claims exemption, a statement signed by him is sufficient evidence of his inability to attend; and where his evidence is required, he shall be examined on commission under Order XXVI Rule 4.

Section 135: no Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from his court; and no person shall be liable to arrest under civil process while attending a court as a party, witness or pleader, or while going to or returning from it. Parties, their pleaders, mukhtars, revenue agents and recognised agents are similarly protected.

Section 135A: members of legislative bodies are exempt from arrest and detention under civil process during the continuance of a meeting of the House, or of a committee, and for forty days before and after such a meeting or sitting.

A statutory corporation is not "the Government" for the purposes of section 80, and no notice is needed to sue one unless its own statute requires it.

Conclusion. A suit against the Government is an ordinary civil suit with three additional conditions: it must name the Union or the State under section 79, it must wait two months after a section 80 notice unless the court gives leave for urgent relief, and a decree against it cannot be executed for three months under section 82. On the second half of the question, section 81 exempts a public officer sued for an official act from arrest and from personal appearance where he cannot leave his duty, and sections 132 to 135A exempt women who do not appear in public, the high constitutional officers, judicial officers and persons attending court, and members of legislatures.

Mandatory, under section 39 of the Specific Relief Act, 1963: where, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

By how long it lasts, and this is enacted in section 37 of the Specific Relief Act:

Temporary or interim injunctions are such as are to continue until a specified time, or until the further order of the court; they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.

A perpetual or permanent injunction can be granted only by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

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.

Clause (c) was inserted by the Amendment Act of 1976 and is the clause under which most injunctions are now granted.

Rule 2, injunction to restrain repetition or continuance of breach. 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 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.

III. The three tests

Two further requirements always operate, the relief being equitable and discretionary: the applicant must come with clean hands, making a full and frank disclosure, and he must come promptly, since delay, acquiescence and laches defeat an equitable claim.

IV. Procedure and consequences: Rules 3, 3A, 4, 5 and 2A

Rule 3. The court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application to be given to the opposite party. Where an ex parte injunction is granted, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and shall require the applicant, on the same day that the injunction is granted or on the day immediately following, to deliver to the opposite party a copy of the application, the affidavit, the plaint and any other document filed in support, and to file an affidavit stating that the copies have been so delivered or sent.

Rule 3A. Where an injunction has been granted without giving notice to the opposite party, the court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted, and where it is unable to do so, it shall record its reasons for such inability.

Rule 2A, consequence of disobedience or breach. In the case of disobedience of any injunction granted under Rule 1 or Rule 2, or of a breach of any of the terms on which it was granted, the court may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release. No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the court may award such compensation as it thinks fit to the injured party, and shall pay the balance to the party entitled.

V. When an injunction cannot be granted: section 41 of the Specific Relief Act

An injunction cannot be granted:

to restrain a person from prosecuting a pending judicial proceeding, unless to prevent a multiplicity of proceedings;

to restrain a person from instituting or prosecuting a proceeding in a court not subordinate to that from which the injunction is sought;

The cases to cite. Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, is the case this question is set to elicit, and it is what the three tests come from: a prima facie case means a serious question to be tried, not a certainty of success; irreparable injury means injury that cannot be adequately compensated in money; and balance of convenience means the comparative mischief of granting against refusing. All three must be satisfied together. Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727, adds that the discretion is the trial court's and an appellate court will not reassess the material afresh, and Gujarat Bottling Co. v. Coca Cola Co., (1995) 5 SCC 545, that the relief is equitable, so conduct, delay and acquiescence all count against the applicant.

Conclusion. An injunction is preventive relief in the court's discretion, temporary or perpetual by section 37 of the Specific Relief Act and regulated, while temporary, by Order XXXIX. Rules 1 and 2 give the occasions; the three tests give the conditions, and all three must be satisfied together. The Code then hedges the order: reasons recorded for granting it ex parte, disposal within thirty days, vacation for a false statement, attachment and up to three months in prison for disobedience, and compensation to the defendant under section 95 where there were no sufficient grounds for it.

Vigilantibus non dormientibus jura subveniunt, the law assists the vigilant and not those who sleep over their rights.

Four purposes follow: to prevent the trial of stale claims, where evidence has perished and memories faded; to give quiet of title and security to long possession; to compel diligence in pursuing a remedy; and to give certainty and finality to transactions and to judicial decisions. The Act is described as a statute of repose, of peace and of limitation.

II. The cardinal rule: section 3

Section 3(1): subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

Three propositions follow.

Limitation is a duty of the court, not merely a plea of the party. The court must dismiss a time-barred suit even if the defendant does not plead limitation, does not appear, or expressly waives it. Contrast Order VIII Rule 2 of the Code, which requires every other ground of defence to be specially pleaded.

A time-barred debt may be recovered without suit. A creditor who lawfully has possession of a pledged article, or who exercises a lien, or to whom the debtor voluntarily pays, may retain the payment, and the debtor cannot recover it back.

A time-barred debt is good consideration for a fresh promise. Section 25(3) of the Indian Contract Act, 1872 makes an agreement without consideration valid where it is a promise, made in writing and signed by the person to be charged, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. Section 29(1) of the Limitation Act expressly preserves section 25 of the Contract Act.

A time-barred debt may in some circumstances be set off, and may be proved in the administration of an estate in certain cases.

Limitation is procedural, so the law in force on the date of the suit applies, subject to any transitional provision, and a change in the period does not revive a claim already barred.

The two qualifications, where the Act does touch the right:

Second Division, Appeals, Articles 114 to 117.

Third Division, Applications, Articles 118 to 137, with Article 137 as the residuary: three years from when the right to apply accrues.

Each Article has three columns: the description of the suit, appeal or application; the period of limitation; and the time from which the period begins to run. The third column is as important as the second, and an answer that quotes a period without its starting point is incomplete.

The outer periods as a set: thirty years is the longest (Articles 61(a), 63(a), 111 and 112); twelve years for possession of immovable property (Article 65) and for execution of a decree (Article 136); three years for most contract and tort claims and both residuary Articles; thirty days for most applications under the Code.

V. The computation machinery, in four groups

Add section 22, a fresh period at every moment a continuing breach or tort continues; section 23, compensation for an act not actionable without special damage, running from when the injury results; and section 9, that once time has begun to run no subsequent disability stops it, subject only to the proviso about letters of administration granted to a debtor.

VI. Special and local laws: section 29(2)

Where a special or local law prescribes a period of limitation different from that prescribed by the Schedule, section 3 shall apply as if that period were the period prescribed by the Schedule, and sections 4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by that special or local law. This is how the Act interacts with the Arbitration and Conciliation Act, 1996, the Consumer Protection Act, 2019 and the rent legislation.