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AL-AMEEN COLLEGE OF LAW
HOUR ROAD
BANGALORE
C.P.C. MODEL ANSWER- 2018
- Discuss the rules in CPC relating to transfer of suits.
Introduction:-
As a general rule, a plaintiff as a right to choose his own forum where a suit can be filed in more than one court, normally, this right of the plaintiff cannot be curtailed, controlled or interfered with. But the said right is controlled by the power vested in superior courts to transfer a case pending in one inferior court to another or to recall the case to itself for hearing and disposal.
Section 22 allows the defendant to make an application for transfer of a suit, whereas section 23 indicates the court to which such an application can be made. Section 24 embodies general power of transfer of any suit, appeal or other proceedings at any stage either on an application of any party or by a court of its own motion.
Section 22 and 23 of the code deal with the right of a defendant to apply for the transfer of a suit. Where the plaintiff has the choice of two or more courts in which he may institute a suit, a defendant, after notice to the other side, may at the earliest opportunity apply to a court to have the suit transferred from the court in which it is filed to another court.
Before transfer is ordered under section 22, two conditions must be satisfied, i) the application must be made at the earliest possible opportunity and in all cases, where issues are settled, at or before the settlement of issues, and ii) notice must be given to the other side. The provision as to notice is mandatory such notice may be given by the party making an application or by the court.
Transfer application lies in following courts.
Where several courts having jurisdiction are subordinate to the same appellate court, an application for transfer can be made to that appellate court,
Where such courts are subordinate to the same High court, an application can be made to that High court, and
Where such courts are subordinate too different High courts, an application can be made to the High court within the local limits of whose jurisdiction, the court in which the suit is instituted is situate,
The Supreme court may transfer any suit, appeal or other proceeding from one High court to another High court, or from one Civil court in the state to another Civil court in any other State.
Notice : - when an application for transfer is made under section 22, notice of such application must be given by the defendant to the other side. The word “ after notice to the other parties” indicate that notice must be given prior to making of application.
Suo Motu Transfer :- over and above an application by a party to the suit, appeal or other proceeding, a High Court or a District Court has power to transfer a suit, appeal or other proceeding even suo moru.
Application for transfer after hearing : - It is no doubt, true that an application for a transfer can be made “at any stage”. At the same time, however, as the discretionary power of a suit, appeal or other proceedings requires to be exercised in the interest of justice, the court may
viii) Where the plaintiff files a suit in a representative capacity, the facts showing that the plaintiff has an actual existing interest in the subject-matter and that he has taken steps that may be necessary to enable him to file such suit,
ix) Where the suit is for recovery of money, the precise amount claimed,
x) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished,
xi) Where the suit is for accounts or mense profits or for movable in the possession of the defendant or for debts which cannot be determined, the approximate amount or value thereof,
xii) Where the subject-matter of the suit is immovable property a description of the property sufficient to identify it, e.g. boundaries, survey numbers, etc.,
xiii) The interest and liability of the defendant in the subject-matter of the suit,
xiv) Where the suit is time-barred, the ground upon which the expression from the law of limitation is claimed.
There must be two parties in every suit, namely, the plaintiff and the defendant. There may, however, be more than one plaintiff or more than one defendant. But there must be at least one plaintiff and one defendant in every suit. All particulars, such as name, father’s name, age, place of residence, etc., which are necessary to identify the parties, must be stated in the plaint.
Every suit presupposes the existence of a action against the defendant because if there is no cause of action the plaint will have to be rejected. Even though the expression “cause of action” has not been defined in the code, it may be described as “a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed” or “which gives the plaintiff right to relief against the defendant”. Thus “cause of action” means every fact, which it is necessary to establish to support a right or obtain a judgment. To put in differently, cause of action gives occasion for and forms the foundation of the suit.
Conclusion:- as above mentioned points are important for a plaint if anyone is missing from those points the plaint may be dismissed by the judge.
- Explain the different modes of service of summons.
Meaning:-
When the plaintiff files a suit, the defendant has to be informed that the suit has been filed against him, and that he is required to appear in the court to defend it. The intimation which is sent to the defendant by the court is technically known as “summons”.Though the said expression has not been defined in the code, according to the dictionary meaning. “A summons is a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend before a judge or officer of the court for a certain purpose”.
Mode of Service of Summons. Rules 9-
The service of summons is of primary importance as it is a fundamental rule of the law of procedure that a party must have a fair and reasonable notice of the legal proceedings initiated against him so that he can defend himself. The code prescribes five principle mode of serving a summons to a defendant.
i) Personal or direct service.
ii) Service by court.
iii) Service by plaintiff.
iv) Substituted service.
v) (^) Service by post.
Personal or direct service : - Rule 10 to 16 and 18deal with personal or direct service of summons upon the defendant. This is an ordinary mode of service of summons. Here the following principles must be remembered.
a) Wherever it is practicable, the summons must be served to the defendant in person or to his authorized agent.
b) Where the defendant is absent from his residence at the time of service of summons and there is no likelihood of him being found at his residence within a reasonable time and he has no authorised agent, the summons may be served on any adult male or female member of the defendant’s family residing with him. A servant cannot be said to be a family member.
c) In a suit relating to any business or work agent a person, not residing within the territorial jurisdiction of the court issuing the summons, it may be served to the manger or agent carrying on such business or work.
Service by Post:-
When an acknowledgement purporting to be signed by the defendant or his agent is received by the court, or the defendant or his agent refused to take delivery of summons when tendered to him, the court issuing the summons shall declare that the summons had been duly served on the defendant. The same principle applies in a case where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, and the acknowledgment is lost or not received by the court within thirty days from the date of issue of the summons. Where the summons sent by registered post is returned with an endorsement “refused”, the burden is on the defendant to prove that the endorsement is false.
Conclusion:- These are the five method of serving the summons to the defendants and it will be done one after one initially the court will send summons through post if it fails to serve the summons to the defendant then the remaining method will be adopted one after one by the plaintiff through the court.
- Explain consequences of appearance and non appearance of parties in a suit.
Meaning:-
The Provision of the Code of Civil Procedure are based on a general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in his absence. Order 9 of the Code enacts the law with regard to the appearance of the parties to the suit and the consequence of their non-appearance. It is also provides a remedy for setting aside an order of dismissal of the suit as also the setting aside of an ex parte decree passed against the defendant.
Appearance of parties: Rule 1 & 12
Rule 1 requires the parties to the suit to attend the court in person or by their pleaders on the day fixed in the summons for the defendant to appear. Rule 12 provides that where a plaintiff or a defendant, who has been ordered to appear in person, does not appear in person or show sufficient cause for non-appearance, the court may dismiss the suit, if he is the plaintiff, or proceed ex parte if he is the defendant.
Where neither party appears: Rule 3
Where neither the plaintiff nor the defendant appears, when the suit is called out for hearing, the court may dismiss it. The dismissal of the suit under Rule 3, however, does not bar a fresh suit in respect of the same cause of action. The plaintiff may also apply for set aside such dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance, it shall pass an order setting aside the dismissal of the suit and shall fix a day for proceeding with the suit.
Where only plaintiff appears: Rule 6, 10
Where the plaintiff appears and the defendant does not appear, the plaintiff has to prove service of summons on the defendant. If the service of summons is proved, the court may proceed ex parte against the defendant and may pass a decree in favour of the plaintiff, if the plaintiff proves his case. This provision, however, is confirmed to first hearing and does not per se apply to subsequent hearing
Where there are two or more plaintiffs and one or more of them appear and the others do not appear, the court may permit the suit to proceed as if all the plaintiffs had appeared, or make such order as it think fit.
Where only defendant appears: Rule 7-
Where the defendant appears and the plaintiff does not appear, and the defendant does not admit the plaintiffs claim, wholly or partly, the court shall pass an order dismissing the suit. But if the defendant admits the plaintiff’s claim as a whole or a part thereof, the court will pass a decree against the defendant upon such admission and dismiss the suit for the rest of the claim.
Rule 9 precludes the plaintiff thereafter from filling a fresh suit on the same cause of action. He may, however, apply for an order to set aside the order of dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance the court may set aside the order of dismissal and fix a day for proceeding with the suit.
Where summons is not served: Rules 2 & 5
It is the fundamental rule of the law of procedure that a party must have a fair and reasonable opportunity to represent his case. And for that purpose, he must have a notice of the legal proceedings initiated against him. The service of summons on the defendant is, therefore, a condition precedent to a fair trial. If the summons is not served on the defendant or it does not give him sufficient time to represent his case effectively, no decree can be passed against him.
Rule 2 of Order 9 enacts that the suit may be dismissed where the summons is not served on the plaintiff’s failure to pay costs for service of summons to defendant or to present copies of the plaint. No such order, however, can be in spite of such failure by the plaintiff if the defendant appears in person or by his authorised agent on the day fixed for him to appear. The plaintiff may file a fresh suit even after the dismissal of the suit under Rule 2 in respect of action or may apply for an order to set aside such dismissal. And if the court is satisfied that there was sufficient cause for such failure, the court shall set aside such order of dismissal and shall fix a day for proceeding with the trial.
- Who is an indigent person? State the necessary conditions for leave to sue as a pamper.
Meaning:-
A person is an “indigent person” if he is not possessed of efficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or where no such fee is prescribed, when
v) Where the suit appears to be barred by law,
vi) Where any other person has entered into an agreement with the applicant to finance costs of the litigation.
Inquiry:-
In the first instance, an inquiry into the applicant should be made by the chief ministerial officer of the court. The court may adopt the report submitted by such officer or may itself make an inquiry.
Where the permission is granted:-
Where an application to sue as a indigent person is granted, it shall be deemed to be a plaint in the suit and shall proceed in the ordinary manner, except that the plaintiff will not have to pay court fees or process fees. The court may assign pleader to an indigent person if he is not represented by a pleader. The central government or the state government may make provisions for rendering free legal aid and services to indigent persons to prosecute their cases. A defendant can also plead set-off counter-claim as an indigent person.
Appeals by indigent person:-
A person unable to pay court fees on memorandum of appeal may apply allow him to appeal as an indigent person. The necessary inquiry as prescribed in Order 33 will be made before granting or refusing the prayer. But where the appellant was allowed to sue as an indigent person in the trial, no fresh inquiry will be necessary if he files an affidavit that he continues to be an indigent person.
- Under what circumstance a reference can be made to high court?
Nature and Scope:-
Section 113 of the Code empowers a subordinate court to state a case and refer the same for the opinion of the high court. Such as option can be sought when the court itself feels some doubt about a question of law. The High Court may make such order thereon as it thinks fit. Such opinion can be sought by a court when the court trying a suit, appeal or execution proceedings entertain reasonable doubt about a question of law.
Object:-
The underlying object for the provision for reference is to enable subordinate courts to obtain in non-appealable cases the opinion of the High Court in the absence of a question of law and thereby avoid the commission of an error which could not be remedied later on.
Conditions:-
The right of reference, however, is subject to the conditions prescribed by Order 46, Rule 1 and, unless they are fulfilled, the High Court cannot entertain a reference from a subordinate court. The rule requires the following conditions to be satisfied to enable a subordinate court ton make a reference:
i) There must be a pending suit or appeal in which the decree is not subject to appeal or a pending proceeding in execution of such decree,
ii) A question of law or usage having the force of law must arise in the course of such suit, appeal or proceeding, and
iii) The court trying the suit or appeal or executing the decree must entertain a reasonable doubt on such question.
Question of law on which a subordinate court may entertain a doubt may be divided into two classes.
i) Those which relate to the validity of any Act, Ordinance or Regulate and
ii) Other questions.
In the latter case, the reference is optional, but in the former case it is obligatory if the following conditions are fulfilled.
i) It is necessary to decide such question in order to dispose of the case,
ii) The subordinate court is of the view that the impugned Act, Ordinance or Regulation is ultra vires, and
iii) There is no determination either by the Supreme Court or by the High Court to which such court is subordinate that such Act, Ordinance or Regulations is ultra vires.
Who may Apply:-
Only a court can refer a case either on an appeal of a party or suo motu. ‘Court’ means a Court of Civil Judicature. A tribunal or persona designata cannot be said to be a ‘Court’ and no reference can be made by them.
Power and Duty of High Court:-
The jurisdiction of the High Court is consultative. In dealing with and deciding the reference the High Court is not confined to the questions referred by a subordinate court. If a new aspect of law arises, the High Court can consider it. The High Court may answer the question referred to it and send back the case to the referring court for disposal in accordance with law. It may also refuse to answer the reference or even to quash it. The High Court, however, cannot make any order on merits nor can it make suggestions.
- Explain the circumstances in which the delay will be condoned under the limitation act.
The general rule laid down in section 3 of the limitation act, 1963 declares that every suit, appeal or application filed after the period of limitation shall be dismissed.
So far as suit concerned, the rule is absolute and unqualified. Any suit instituted after the prescribed period of limitation has to be dismissed in as much as there is no provision for condonation of delay in filing suit.
In respect of appeals and applications, however, the limitation act, 1963 provides for extension of time and consideration of delay in filing appeals and applications. Section 5 provides that where the appellant or applicant satisfies the court that he had a “sufficient cause” for not preferring appeal or making application, the court may condone delay and hear the case on merits.
While dealing with an application for condonation of delay, the court will keep in view two conflicting considerations.
i) As far as possible, the court would try to decide every cause on merits rather than throwing it away on technical ground of delay without entering into real issues in the case.
ii) The court must also consider an important aspect that non-filing of appeal or application has created a valuable right in favour of the opposite party which cannot be defeated or inferred with lightly.
In Union Carbide Corp. v. Union of India. AIR 1992 SC 317
However, the Supreme Court held even if the act is void or ultra vires, the aggrieved party must approach the court within the period of limitation. Since no period is prescribed specially for such acts, the residuary provision Article 113 will apply, and a suit must be filed within three years from the time. When the right to sue accrues, i.e. from the date such order is passed or action is taken.
8) Short Notes
a) Set off and counter claim
“Set off means” means a claim set up against another. It is a cross-claim which partly offsets the original clam. It is an extinction of debts of which two persons are reciprocally debtors to one another by the credits of which they are reciprocally creditors to one another. Where there are mutual debts between the plaintiff and the defendant, one debt may be settled against another.
“Counter claim” means may be defined as “ a claim made by the defendant in a suit against the plaintiff’. It is a claim independent of, and separable from, the plaintiff’s claim which can be enforced by a cross-action. It is a cause of action in favour of the defendant against the plaintiff.
Difference between set off and counter claim
a. Set off is statutory defence to a plaintiff’s action, whereas a counter claim is substantially a cross-action
b. Set off must be for an ascertained sum or it must arise out of the same transaction; a counter claim need not arise out of the same transaction.
c. Set off is a ground of defence to the plaintiff’s action. In other words, the former is a ground of defence, a shield, which if established, would afford an answer to the plaintiff’s claim in toto (as a whole) or pro tanto (in proportion); the later is a weapon of defence, a sword, which enables the defendant to enforce the claim against the plaintiff effectually as an independent action.
d. In the case of a legal set-off, the amount must be recoverable at the date of the suit, while in the case of a counter-claim the amount must be recoverable at the date of the written statement.
e. When the defendant demands in a plaintiff’s suit an amount below or up to the suit claim, it is a set-off strict sensu, but when it is for a larger amount, the claim for excess amount is really a counter-claim.
b) Kinds of jurisdiction.
Jurisdiction meaning jurisdiction may be defined to be the power or authority of a court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it. In other words, by jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented before in formal way for its decision.
- Territorial or local jurisdiction
- Pecuniary jurisdiction
- Jurisdiction as to subject matter
- Original and appellate jurisdiction.
Territorial or local jurisdiction: -
Every court has its own local or territorial limits beyond which it cannot exercise its jurisdiction. These limits are fixed by the government. The district judge has to exercise jurisdiction within his district and not outside it. The High Court has jurisdiction over the territory of a state within which it is situate and not beyond it.
Effect:-
The payment made by the garnishee into the court pursuant to such notice shall be treated as a valid discharge to him as against the judgment-debtor. The Court may direct that such amount maybe paid to the decree-holder towards the satisfaction of the decree and costs of the execution.
Failure to comply:-
Where neither the garnishee makes the payment into the court, as ordered, nor appears and shows any cause in answer to the court may order the garnishee to comply with such notice as if such order were a decree against him.
Costs:- The costs of garnishee proceedings are at the discretion of the court.
Appeal:- Orders passed in garnishee proceedings are appealable as “decrees”.
- Solve problems
a) ketan is a tenant in the house of sameer for last 30 years. Sameer is now in need of the house for his own occupation. He has filed a petition for eviction against ketan. Ketan contends that he has become owner by adverse possession. Decide.
Ketan cannot become owner of the property by adverse possession.
When ketan is residing in the house of sameer in the capacity of tenant for 30 years he remains as tenant as long as he live in that property so he cannot claim ownership by adverse possession. Since sameer being the owner of the house and he is in need of the same for his own occupation he will succeed as in the eviction petition filed against ketan.
Under adverse possession a person who is having possession of the property for more than 12 years without any interruption or interferences by any person or persons claiming to be owner of the property said to have acquired the adverse possession of the property.
b) Mr. Santhosh seeks condonation of delay for not preferring in appeal within the period of limitation because of engrossing in his marriage. Is it Condonable?
It is condonable
Mr. Santhosh seeks condonation of delay for not preferring in appeal within the period of limitation because of engrossing in his marriage it is condonable as per the Limitation Act
In respect of appeals and applications, however, the limitation act, 1963 provides for extension of time and consideration of delay in filing appeals and applications. Section 5 provides that where the appellant or applicant satisfies the court that he had a “sufficient cause” for not
preferring appeal or making application, the court may condone delay and hear the case on merits.
