Order XXXVI Rule 5 CPC - Hearing and Disposal of Case
Order 36 Rule 5 of the Code of Civil Procedure, 1908 governs how a court hears and decides a special case submitted by agreement of interested parties. It specifies the checks the court must undertake before delivering a judgment and decree.
Text of Order XXXVI Rule 5
(1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suit so far as the same are applicable.
(2) Where the Court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit—
- that the agreement was duly executed by them,
- that they have a bona fide interest in the question stated therein, and
- that the same is fit to be decided,
it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow.
Meaning and legal effect
Special case: Order XXXVI allows persons interested in a question of fact or law to state that question in a written agreement for the court's decision, subject to the requirements of Rules 1 to 4. The procedure is sometimes described as a case stated for the opinion of the court.
Hearing as an ordinary suit: Rule 5(1) requires the special case to be listed for hearing in the manner of an ordinary civil suit. Other provisions of the CPC apply to the extent they are relevant to this procedure.
Three conditions before judgment
1. Due execution of the agreement
The court must be satisfied that the parties duly executed the written agreement on which the special case is based. It may examine the parties or receive evidence it considers appropriate.
2. Bona fide interest
The parties must have a genuine, rather than merely hypothetical or collusive, interest in the question presented for decision. The expression bona fide means in good faith.
3. Fitness for judicial determination
The question must be appropriate for the court to decide in the proceedings. The court is not required to pronounce judgment unless it is satisfied about all three statutory conditions.
Judgment and decree
Once satisfied, the court pronounces judgment as in an ordinary suit, and a decree follows. Under Section 2(9) CPC, a judgment is the statement given by the judge of the grounds of a decree or order. Under Section 2(2) CPC, a decree is the formal expression of an adjudication conclusively determining the rights of parties regarding matters in controversy in a suit, subject to the statutory definition and exclusions.
Appeal: Order XXXVI Rule 6 provides that no appeal lies from a decree passed under Rule 5. This is a specific limitation on the ordinary appellate route.
How the rules work together
Rule 1 deals with the written agreement and question stated; Rule 2 requires valuation in specified cases; Rule 3 concerns filing and registration as a suit; and Rule 4 binds the parties to the court's jurisdiction and the statements in the agreement. Rule 5 then provides for hearing and disposal.
Official legal reference
See the Code of Civil Procedure, 1908 (India Code), including the First Schedule, Order XXXVI, and Sections 2(2) and 2(9). Check applicable amendments and local High Court rules for proceedings in a particular jurisdiction.
This article explains the central CPC provisions for general information; it is not a substitute for advice on the facts of an individual case.