Introduction
Section 90 of the Code of Civil Procedure, 1908 deals with a special case.
- Introduction
- Section at a Glance
- Meaning of Section 90 CPC
- Object of Section 90
- What Is a “Special Case”?
- Essential Features of a Special Case
- Section 90 and Order XXXVI CPC
- Example
- Special Case vs Ordinary Suit
- Special Case vs Reference
- Role of the Court
- Nature of the Proceeding
- Important Distinction from Section 89
- Section 90 and Arbitration
- Practical Importance
- Common Confusions About Section 90 CPC
- Importance for Law Students and Judiciary Exams
- Important Questions to Prepare
- Key Legal Principles
- Key Takeaways
- Conclusion
The provision allows parties to agree to place a question of law or fact before the court for its opinion or decision, without following the ordinary procedure of a contested suit.
Section 90 is intended to provide a simplified mechanism where parties are willing to approach the court jointly for determination of a particular legal or factual question.
Section at a Glance
| Particular | Details |
|---|---|
| Section | Section 90 CPC |
| Subject | Special Case |
| Main purpose | Obtaining the court’s decision or opinion on an agreed question |
| Nature | Special procedural provision |
| Parties | Parties who agree to state the question for determination |
| Main concept | Agreed reference to court |
| Related provision | Order XXXVI CPC |
Meaning of Section 90 CPC
Section 90 provides that, where persons agree to state a case for the opinion of the court, the court may give its opinion or decision in accordance with the prescribed procedure.
The provision enables parties to avoid unnecessary litigation where they are not seeking a conventional contested trial but instead want the court to determine a particular question arising between them.
The detailed procedure for a special case is provided under Order XXXVI of the CPC.
Object of Section 90
The main objectives of Section 90 are:
1. Avoid Unnecessary Litigation
Where parties agree on the facts or circumstances and only require the court’s determination, a full-fledged suit may be unnecessary.
2. Obtain Judicial Determination
The parties can obtain the court’s opinion or decision on the question placed before it.
3. Save Time and Costs
The special procedure can avoid lengthy pleadings and trial proceedings.
4. Facilitate Resolution of Legal Questions
Parties can approach the court jointly where a legal or factual question requires authoritative determination.
What Is a “Special Case”?
A special case is a proceeding in which parties agree to place a question before the court for determination or opinion.
The parties essentially agree on the matters that are to be submitted to the court and seek the court’s decision according to the procedure prescribed for special cases.
The proceeding is therefore different from an ordinary adversarial suit.
Essential Features of a Special Case
1. Agreement Between the Parties
The procedure is based upon an agreement between the parties.
2. Question Is Stated for the Court
The parties place the relevant question before the court for its opinion or decision.
3. Ordinary Trial Is Avoided
The purpose is to obtain judicial determination without requiring the entire ordinary process of contested litigation.
4. Procedure Is Governed by Order XXXVI
Section 90 provides the statutory basis, while Order XXXVI CPC lays down the detailed procedure.
Section 90 and Order XXXVI CPC
Section 90 should be read together with Order XXXVI of the Code of Civil Procedure.
Section 90
Provides for a special case.
Order XXXVI
Contains the procedural rules governing special cases.
Therefore:
Section 90 → Substantive statutory basis
Order XXXVI → Procedural framework
Example
Suppose A and B have a dispute concerning the interpretation of a particular legal document.
Both parties agree on the relevant facts and do not require a conventional trial. However, they want the court to determine the legal question arising from the document.
They may adopt the special-case procedure under Section 90, subject to the requirements of the CPC and Order XXXVI.
Special Case vs Ordinary Suit
| Special Case | Ordinary Suit |
|---|---|
| Based on agreement between parties | Usually involves contested claims |
| Particular question is submitted to court | Entire dispute is adjudicated |
| Simplified procedure | Full procedural framework |
| Avoids unnecessary trial | May involve pleadings, evidence and trial |
| Governed by Order XXXVI | Governed by general CPC provisions and relevant Orders |
Special Case vs Reference
A special case under Section 90 should not be confused with every form of reference to a court.
The distinguishing feature is the agreement of the parties to state the case for the court’s opinion or decision.
The special-case procedure provides a particular statutory mechanism for this purpose.
Role of the Court
The court considers the question placed before it in accordance with the applicable procedure.
The court’s role is to provide its judicial opinion or decision on the question presented through the special-case procedure.
The court does not necessarily conduct a conventional trial involving extensive examination and cross-examination of witnesses.
Nature of the Proceeding
Section 90 provides an alternative procedural route for parties who jointly seek judicial determination.
It is therefore:
- consensual in origin;
- judicial in determination; and
- special in procedure.
Important Distinction from Section 89
Section 89 deals with settlement of disputes outside the court through ADR mechanisms.
Section 90 deals with a special case submitted to the court for its opinion or decision.
Therefore:
Section 89 → Settlement through ADR
Section 90 → Special case before the court
Section 90 and Arbitration
Section 90 should also be distinguished from arbitration.
Arbitration
The parties submit their dispute to an arbitrator or arbitral tribunal under the applicable arbitration law.
Special Case
The parties submit the question to a court under Section 90 and Order XXXVI.
Therefore:
Section 90 → Court
Arbitration → Arbitral tribunal
Practical Importance
Section 90 can be useful where:
- parties agree on the facts;
- only a particular legal or factual question requires determination;
- the parties want judicial clarification;
- a full trial would be unnecessary; and
- the requirements of Order XXXVI are satisfied.
Common Confusions About Section 90 CPC
1. Section 90 Is Not ADR
Unlike Section 89, Section 90 does not primarily provide for mediation, conciliation or other settlement mechanisms.
2. It Is Not an Ordinary Suit
A special case follows a specific procedure rather than the ordinary procedure of a contested suit.
3. Agreement of Parties Is Fundamental
The special-case mechanism is based on the parties agreeing to state the case for the court’s opinion or decision.
4. Order XXXVI Is Important
The detailed procedure must be studied under Order XXXVI CPC.
Importance for Law Students and Judiciary Exams
What to Remember
- Section 90 → Special Case.
- Parties agree to state a case for the opinion or decision of the court.
- It provides a special procedural mechanism.
- It can avoid unnecessary ordinary litigation.
- Order XXXVI CPC contains the detailed procedure.
- Section 90 is different from Section 89.
- Section 89 concerns ADR and settlement outside court.
- Section 90 concerns a special case placed before the court.
Important Questions to Prepare
- What is a special case under Section 90 CPC?
- What is the object of Section 90?
- What are the essential features of a special case?
- What is the role of agreement between the parties?
- What is the relationship between Section 90 and Order XXXVI?
- Distinguish a special case from an ordinary suit.
- Distinguish Section 89 and Section 90 CPC.
- Distinguish a special case from arbitration.
- Can parties jointly approach the court for determination of a question?
- What is the procedural significance of Order XXXVI CPC?
Key Legal Principles
1. Agreement is fundamental
The special-case procedure is based upon the parties agreeing to place the question before the court.
2. Judicial determination
The question is submitted to the court for its opinion or decision.
3. Simplified procedure
The procedure is intended to avoid unnecessary ordinary litigation where the circumstances permit.
4. Order XXXVI governs the procedure
The detailed procedural requirements are contained in Order XXXVI CPC.
5. Court determination differs from ADR settlement
The court provides its judicial opinion or decision, whereas mediation and similar ADR processes primarily facilitate an agreement between the parties.
ALSO READ: Section 89 – Settlement of Disputes Outside Court
Key Takeaways
| Concept | Principle |
|---|---|
| Section | Section 90 CPC |
| Subject | Special Case |
| Basis | Agreement between parties |
| Forum | Court |
| Purpose | Obtain opinion or decision on stated question |
| Nature | Special procedural mechanism |
| Procedure | Order XXXVI CPC |
| Section 89 | ADR and settlement outside court |
| Main concept | Agreed submission for judicial determination |
Conclusion
Section 90 CPC provides a special procedure through which parties may agree to state a case for the opinion or decision of the court. It is useful where the parties seek judicial determination of a particular question without resorting to the full procedure of an ordinary contested suit.
The easiest way to remember Section 90 is:
Section 90 → Special Case
Parties Agree → State the Case → Court Gives Opinion/Decision
Order XXXVI → Procedure for Special Cases
