CODE OF CIVIL PROCEDURE
Q. (a) A filed a suit for the recovery of rent against B, on the ground that B was his tenant and has not paid rent for the past 2 years. In the written statement filed, B admitted that he was the tenant of A, but has paid the rent without a receipt having been issued.
During the trial B filed an application seeking permission to amend the written statement and instead pleaded that he was not a tenant of A. decide and give reasons.
(b) S sues B for recovery of Rs. 1000/- and interest and the suit is decreed. In the judgment nothing is said about interest claimed. The decree is drawn in accordance with the judgment. An application under Section 151 and 152 of the Code of Civil Procedure is filed to amend the decree and for adding an order for payment of interest. How would you decide? (D. J.S. 1989)
Q. A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at Varanasi, B and C make a joint promissory note payable on demand and deliver it to A.
A files a suit for recover at Varanasi, B and C objects to Jurisdiction of Court at Varanasi to try suit asserting that defendants B and C do not reside at Varanasi. How would you decide the objection? (D.J.S. 1989)
Q. B was in occupation of a house belonging to A. In March, 1981, A filed a suit for possession alleging that B was a trespasser in the house. The suit was contended by B, who pleaded that he had become the owner of the house, by adverse possession. The suit was fixed for hearing on 15th July, 1981, on which date A was unable to attend the Court, but B appeared in Court. The suit was dismissed in default. On 10th December 1981, B died leaving behind a widow C. In January, 1982 A brought a suit against C alleging that she is in illegal possession of the house and praying that a decree for possession be passed against her. Advice C if the suit is barred. Give reasons. (D.J.S. 1989)
Q. (a) A tenant's defence against his ejectment was struck off. The landlord claimed an eviction decree straight way. The tenant asserted right to participate in the proceedings, cross-examine the landlord's witnesses, lead evidence in defence and rebuttal, and address arguments. Decide the controversy. Give reasons.
(b) In an eviction proceeding, 27-5-1989 was fixed for the evidence of the landlord and 2.6.1989 for the evidence of the tenant. On 27.5.1989 neither the tenant nor his counsel appeared at hearing. The Court recorded evidence of landlord and passed ex-parte eviction order. Same day tenant applied for setting aside the ex-parte order alleging that he was ill and his counsel had forgotten mentioning the case in his diary. He filed his own affidavit but did not file medical certificate and diary and affidavit of counsel. The landlord rebutted his allegation on affidavit. Decide the application. (D.J.S. 1990)
Q. (i) A constructed a house for B under an agreement. B revoked the agreement complaining that the work was incomplete, shoddy and grossly delayed. A filed a suit for wrongful termination of contract and for recovery of Rs. 50 lacs allegedly outstanding for the work done. B also filed suit for recovery of Rs. 12 lacs allegedly overpaid and for permanent injunction. He filed an application for grant of ad interim injunction under Or. 30 Rule 1 and 2 C.P.C. for restraining A from obstructing his entry in the suit property and for restraining A from entering upon it. A resisting it contended that the construction is complete and it was wrongful on the part of B to revoke the agreement; that a huge sum is outstanding for the work done and he has a lien over the building; that his license cannot be revoked till his dues are paid and that grant of temporary injunction will amount of decreeing the suit itself. Decide 'B's ad interim injunction application.
(ii) Landlady filed civil suit for recovery of possession and mesne profit from her tenant. Tenant pleaded that Rent Controller, not the Civil Court, has jurisdiction to entertain eviction suit. The plea is legally correct. But the landlady contended that her two earlier eviction petitions were rejected by the Rent Controller on objection of the tenant that it was Civil Court and not the Rent Controller, which had jurisdiction to entertain eviction suit against him as Rent Act did not apply on his tenancy. She has pleaded that those judgments of the Rent Controller constitute res judicata between the parties and the tenant cannot be allowed to approbate and reprobate and he is also Estopped from taking inconsistent pleas in the civil suit. Dispose of the pleas of tenant and landlady by a reasoned under. (D.J.S., 1991)
Q. (i) A filed a civil suit for ejectmemt and arrears of rent against B, C and D alleging that his tenant B was arrears of rent and C and D were his sub-tenant. Only C and D contested it. Trial court decreed the suit for arrears of rent against B. It was held C and D were not sub-tenants. Only B filed appeal which was dismissed but the Appellate Court while observing that any evidence led by C and D could not be read against B and further observed that it appeared that C and D being closely related to B were in possession on his behalf. A filed second civil suit for ejectment and arrears of rent now pleading, inter alia, that C and D were licensees of B and that the Judgment of the Appellate Court in earlier case will operate as res-judicata. Is the plea of A about res jusicata correct? Give reasons for your view.
(ii) Bank filed a suit for money decree against the partnership firm, A and its four partners, B, C, D and E. Trial Court passed a decree against the firm A and two partners, B and C and dismissed the suit against remaining partners. Only Bank went in appeal challenging the decision of the trial Court so far as it dismissed the claim as against partners, D and E but did not implead firm A partners B and C, as parties to the appeal. The question is whether A, B and C were necessary parties and in their absence the appeal is not maintainable? Give decision and reason for it.
(iii) The plaintiff sued a forma pauperis. The defendant applied for appointment of a Commissioner for examination of his witnesses at Bombay and Meerut. The plaintiff says he has no means to go with his counsel and cross examine witnesses at Bombay and Meerut unless the defendant is asked to defray his expenses. The defendant contended that under Or. 26 Rule 15 C.P.c. he can be directed to pay a reasonable sum for "the expenses of the commission" which expression does not include the expenses of the other party. Should the plaintiff get his expenses? Give reason for allowing or disallowing his request. (D.J.S. 1991)
(a) 'A' owned some land, which 'B' was cultivating as tenant. 'A' had four sons 'C', 'D', 'E' and 'F'. After 'A's death, the land was sold by 'C', 'D', 'E' and 'G' son of the predeceased son of 'F' to 'H' vide registered sale deed dated 12.02.1968. 'H' filed a suit for recovery of possession against 'B'. 'B' contested the suit on the ground inter alia that there are other co-owners of property and since all the co-owner have not joined in filling the suit, the suit is bad for non-joinder of necessary parties. In the written statement, he also gave the pedigree table of A but did not lead any evidence in this regard. The revenue record also did not show that there was any other legal heir of A except 'C', 'D', 'E' and 'G' at the time of sale. So 'H' contended that he is the sole owner and suit is not bad for non-joinder of other co-owner. Decide the question of non-joinder of parties by a reasoned order.
(b) A is survived by his widow, daughter, sister and four brothers. On a partition suit filed by B, one of the brothers of deceased A, the disputed property fell to the share of C, the daughter of A. During the pendency of partition suit filed by B, B was appointed receiver of the entire estate of A. In this capacity B inducted D as a tenant and took some advance from D but the possession of whole of leased premises was not given to D. So, D filed a suit against B for recovery of the amount of advance. This suit was decreed against B and his estate. In execution of this decree D purchased the suit land belonging to C in auction and then transferred it to some other persons without any notice to C. C then filed a suit for recovery of possession of her land. Te suit was resisted by D and his transferees on the ground, inter alia that the same is barred by section 47 C.P.C Decide whether the bar created by section 47 C.P.C. will apply to the suit filed by C. (D.J.S. 1996)
Q. A became a tenant of seven lots of coconut grove under b. Annual rental agreed was Rs. 3,600/- to be paid the three installments. A filed a suit for declaration and injunction alleging that B with the help of C is trying to cast clouds on his tenancy rights and to dispossess him. The Court found that A had already been dispossessed. The suit was therefore dismissed on the ground that suit for m ere declaration does not lie in view of the prohibition contained in the Specific Relief Act, without seeking the consequential relief of possession.
A then filed another suit for possession of the land under his tenancy. The suit was resisted on the ground, inter alia that it is barred by principles of res judicata and also under Order 2, Rule 2, C.P.C. Decide giving reasons for your decision, whether the defendant's plea is sustainable. (D.J.S. 1996)
Q. A obtained a decree for possession of immovable property against B. That decree became final. Thereafter A files execution application dt. 24-05-1979 under order 21, Rule 35(3), C.P.C. The execution was resisted by C whereupon A filed an application on 25.05.1979 complaining of resistance by C and seeking police aid for execution of decree. C does not claim through B. So the Court directed A to file an application under Order 21, Rule 97, C.P.C. A filed the application under Order 21, R 97, C.P.C. on 18.07.1979, but the said application was dismissed as being barred by Limitation under Article 129 of the schedule to Limitation Act. A then filed another application under order 21, R 97, C.P.C., which too was dismissed as being barred by res judicata. A filed appeal contending that the very first application dt. 25.05.1979 under Order 21, Rule 35(3) could be treated as the one under Order 21 Rule 97, C.P.C. so the application was within time. How will you decide the appeal? (D.J.S. 1996)
Q. (a) A entered into agreement with B for carrying out certain work from 04.04.73 till 04.04.75. Agreement contained a clause for arbitration in case of dispute. On 03.04.78, A filed civil suit against B for recovery of some dues etc. On 04.04.78 B filed application under section 20 of the arbitration Act, B moved an application for stay in civil suit filed by A but the application for stay was dismissed and his appeal against dismissal was also dismissed on 01.08.85. On 13.03.86, B filed an application under Order VI Rule 17 C.P.C. for amendment of his pending application under section 20 of the Arbitration Act for converting it into suit for recovery of amount from A. Application for amendment is opposed on the ground that it proposes to change nature and character of the suit and that claim of B was barred by limitation. B contends that his pending application under section 20 of the Arbitration Act contains all the particulars which should contain in regular suit, difference is only in regard to relief prayed for, no prejudice will be caused to the opposite party, claim is not time-barred and prayer can be granted even by resorting to inherent powers under section 151 C.P.C. Deal with the respective contentions of the parties and pass an order on that application under Order VI Rule 17 of Code of Civil Procedure.
(b) Respondent has its registered head office in Delhi Agreement was executed between it and the petitioner for execution of certain work at Rihand (U.P.). Certain disputes having arisen between the parties, the same were referred to Arbitrator. Award was filed in the Court at Delhi. One of the objections raised by the respondent was that the Court had no jurisdiction as worksite was at Rihand, work was allocated and executed at Rihand, agreement was executed at Rihand and breach, if any, was also committed at Rihand. It was contended that as no part of the cause of action has arisen within territorial jurisdiction of the Court, it will have no territorial jurisdiction to entertain the award made. Contention of the petitioner is that since principal/corporate office of the respondent is situated at Delhi, this Court will have territorial jurisdiction. The question to be decided is whether the Court within whose jurisdiction principal/regd. Office of company is situate, will have jurisdiction to try the suit even if no part of cause of action has arisen within its jurisdiction and the cause of action has accrued at a place where the company has it subordinate office. Decide the point. (D.J.S. 1999)
Q. (a) Plaintiff filed suit against S (widow of his brother) for declaration of title to the suit property, to put him in possession and for arrears of rent with further meshe profits. Suit was decreed on 05.09.1983. Three days thereafter, the plaintiff sold the suit properties to B. That widow filed appeal. During pendency of the appeal B was impleaded as respondent under Order 22 rule 10 C.P.C. since the property suit had been assigned to him. The plaintiff filed an application for dismissing the suit as not pressed as he had compromised the dispute with S and wanted the compromise to be recorded. It is opposed by B contending that he being transferee-pendente-lite was virtually interested in decree remaining intact. Plaintiff contended that under order 23 Rule 1 C.P.C., he has right to compromise suit with S against whom he had filed suit and he cannot be forced by any of the parties to continue to prosecute the suit. Decide the application of the plaintiff. (D.J.S. 1999)
Q. (a) A was tenant in the building belonging to X, X sold the building to B vide Ex. P1 Sale deed dated 23-01-1989. On this footing, b filed eviction petition against A in 1990 on ground of non-payment of rent. In written statement, A alleged that the building was actually purchased by B's father as per Ex. P1 and B was only a name – lender therein and was not entitled to rent or eviction order. After trial court found that B was the real owner pursuant to Ex. P1 and was entitled to rent. However the suit was dismissed as A deposited arrears of rent, which were allowed to be withdrawn by B. In 1994, B filed suit for A's eviction on the ground of bonafide requirement. A contested the suit on the ground that B was only benami to his father in Ex. P1 and the sale was void being forbidden by The Benami Transaction (Prohibition) Act. B's contentions are that there is bar of res judicata in reagitating issue regarding his title to the building; that the party, who wants to prove that recitals in Ex. P1 are untrue must bear the burden to prove it. Is there any merit in his contentions? Give your judgment.
(b) On 14.07.1977 a decree for Rs. 69,000/- was passed in favour of Decree-holder and against all the Judgment-Debtors. The decree holder filed execution of decree on 09.01.1978. She expired on 14.03.1980. She had executed a Will assigning the decree in favour of Judgment Debtor No. 2 and 3, who obtained probate of Will. Judgment Debtor No. 4 also expired on 20.03.1990 Judgment Debtor No. 2 and 3 are now seeking to execute the decree against legal heirs of Judgment Debtor No. 4 who have objected to execution of decree against them and have submitted that the decree cannot be executed by Judgment Debtor No. 2 and 3 on the basis of Probate granted in their favour. The question is whether the applicants, who were also the JDs, can execute the decree against one or other Judgment Debtors even assuming the share of the DH has devolved upon them under the Will? (D.J.S. 2000)
Q. (a) Plaintiff is elder brother of defendant. When he acquired and constructed property, defendant was 17 years old. Plaintiff permitted defendant to stay on first floor after his marriage. Their relations turned sour as defendant obstructed plaintiff, when he wanted to construct two toilets on ground floor and raise construction on 2nd floor. Plaintiff filed suit for possession of first floor, declaration and injunction against defendant and moved an application under order XXXIX, R. 1 and 2 C.P.C. for ad-interim injunction for removal of staircase constructed by defendant in front of property without consent of plaintiff or sanction of M.C.D. It is alleged that there is staircase in the backside, which is properly sanctioned and is in use; the plaintiff cannot enjoy his property unless unauthorized construction is removed. Application is opposed on the ground that no notice for demolition has been received from M.C.D. and apprehension of plaintiff is without foundation; construction of staircase took place long time ago; by removing it, the plaintiff may not receive any particular benefit, but it would cause great inconvenience and hardship to defendant. Decide the application giving reasons.
(b) In a land acquisition matter, Reference Court enhanced land value from Rs. 1 lac to Rs. 17 lacs vide Award dated 12.11.1991. State filed appeal without noticing that the sole respondent in the Award had died before filing the said appeal. On 22.05.1993. an application was filed quoting Order 1, Rule 10 C.P.C. for joining names of legal representatives of the deceased respondent, alleging that Govt. came to know of death of the sole respondent only when notice of appeal was returned unserved stating that he was no more. The application is contested by the proposed L.Rs. on the ground that order XXII, Rule 4 is the relevant provision to be invoked and the application for impleadment of L. should have been filed within 90 days after death as per Art. 120 of the Limitation Act and one officer of Govt. knew about factum of death and, therefore, the appeal abates. Contention of Govt. is that order 1, Rule 10 is relevant and there is no specified period of limitation for making such an application and if at all any application is necessary, the same could be filed within 3 years under Act. 137 of Limitation Act and in this case, the application was filed much ahead of that time. Deal with the points raised by the parties and decide the matter. (D.J.S. 2000)
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