Q. 3(b). Can a party to a suit apply for amendment in the opponent’s pleading? What is the effect of failure to amend the pleading within the fixed time?
Ans. Amendment in the opponents’ pleading.- Under Order VI, Rule 16, any party to a suit may apply to the court for order of amendment in the pleading of the opposite party, if it is not-
1. Unnecessary, scandalous, frivolous or vexatious,
2. Prejudicial, embarrassing or dilatory to the fair trial,
3. Abuse of the process of the court;
and the court may allow it. But leave to such amendment cannot be given if the opponent thereby seeks the particulars of the facts if leave therefor may be oppressive to the opposite party, the particulars of mere denial or of immaterial facts or supply of particulars when the suit is for the account of money due to the party seeking amendment.
This and any amendment by the order of the court on its own initiative are called compulsory amendments while those made on request by a party in its own pleading is called voluntary amendment.
Effect of failure to amend after order. Order VI, Rule 18 provides that if a party who has obtained an order for leave to amend does not amend accordingly within the time limited for the purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order. he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time has been extended by the Court.
Q. 4.(a) Briefly state the provisions relating to a written statement.
Ans. Provisions relating to a written statement
The written defence or pleading of the defendant is called a written statement.
Written statement is the statement or defence of the defendant by which he either admits the claim of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint.
The written statement must specifically deal with each allegation of fact in the plaint and when a defendant denies any fact, he must not do so evasively but answer the same in substance.
Filing of the written statement by the defendant has been made obligatory since the amendment of C.P.C. in 1976.
The court may also call upon the defendant to file a written statement and if he fails to do so, the court may pronounce a judgment against him. The pleader before the drafting of the written statement must examine the plaint to see whether all the particulars are given in it and whether the whole information that he requires for fully understanding the claim and drawing up the defence is available. If any particulars are wanting, he should apply for them before filing a written statement. If the allegations in the plaint appear to be embarrassing or scandalous, he should apply to have them struck out, so that he may not be required to plead to them.
The written statement can be conveniently divided into following parts:
1. The headings and the title or formal portion.
2. The body of the written statement.
3. Signature and Verification.
(1) The Heading and the Title. The heading of the written statement should be the same, as that of the plaint. Then there should be the number of the suit. Title also should be the same as that of the plaint with this difference that if there are several plaintiffs, address of one only should be written with the addition of words, ‘and another’ or ‘and others’. After the title the person on whose behalf the written statement is filed should be shown.
Example: In the Court of Civil Judge, Allahabad.
Suit No. 258 of 1980
Smt. Usha Gupta and others…………………………..Plaintiffs
Versus
Sri Girish Chandra Gupta and others……………………..Defendants.
Written statement, on behalf of the defendant No. 1 is as follows:
(2) The body of the written statement.-(a) Admission and denial part-The defendant should take each fact in the same order in which it is alleged in the plaint and it should be either admitted or denied, or when the defendant has no knowledge of it he may refuse to admit it. General denial is not sufficient. A denial may be total or partial, when the denial is total, i.e. when the defendant totally and categorically denies the allegations in the written statement, the defence is said to be in form of a traverse.
A defendant can either admit or deny the several allegations made in the plaint. If he desires to deny any such allegations he must do so clearly and explicitly. According to the law of pleadings the defendant is bound to deal specifically with each allegation of fact, the truth of which is not admitted. If certain para in the plaint is merely not admitted but the facts therein are not specifically dealt with, it does not amount to denial. There is a rule that every allegation of facts, not dealt with specifically or by necessary implications shall be taken to be admitted. A mere statement in general terms that the plaintiff’s allegations are not claimed will not be sufficient.
Following are the four exceptions to the general rule that admissions and denials should be specific:
(i) Matters of law, or inference of law if pleaded in the plaint need not be traversed because Order VIII, Rule 3, C.P.C. applies to facts only.
(ii) The defendant need not plead to the claim or amount of damage in the plaint.
(iii) No pleading is necessary to the formal allegations of facts relating to jurisdiction of the court or the valuation of the suit. But it becomes necessary when the defendant denies the facts on which the plaintiff bases the jurisdiction of the court.
(iv) The relief sought need not be specifically denied. Order VII, Rule 5. C.P.C. provides that the effect of the failure to conform to the Rule 5, C.P.C. must not be read in a sense inconsistent with Rule 2 and therefore a general denial cannot mean a denial by implication. According to Rule 5 every allegation of fact in the plaint will be deemed to be admitted if in the written statement it is neither specifically denied nor specifically stated to be not admitted. The effect of this rule is to relieve the plaintiff from the obligation of proving such allegations in the plaint as are neither specifically denied nor stated to be not admitted in the written statement.
The denials must not be evasive. Order VIII, Rule 4, C.P.C. bars the evasive denials of the plaint’s allegations. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively but answer the point of substance.
The Supreme Court has ruled in Sangram Singh v. Election Tribunal, AIR 1955 SC 425, that the Courts can excuse the delay in filing the written statement with imposition of certain conditions. The rule has been followed in Ramesh Chand v. Punjab National Bank, AIR 1990 SC 1147. Rule 10 of Order VIII as substituted by Act 22 of 2002 lays down that “where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce, judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.
A failure to file written statement entails penalty on the defendant and the suit has to be decided even in the absence of written statement filed on behalf of defendant. [Dr. Nanda Agrawal v. Matri Mandir, Varanasi, AIR 2005 All. 12].
Additional Pleas
(i) Dilatory Pleas-Dilatory pleas are those pleas which merely delay the trial of suit on merits. On the other hand, pleas which go to the very root of the case are called ‘peremptory pleas’ or pleas in ban. Dilatory pleas must be taken at the earliest possible opportunity. Such pleas should be decided by the court before proceeding any further. For instance, the pleas that the court fee is insufficient, or that the suit is bad for misjoinder of parties or that the defendant is minor and he cannot be sued without the appointment of guardian are dilatory pleas.
(ii) Objection to point of law. An objection to point of law is an objection which a defendant takes to a legal inference drawn by the plaintiff in his favour, while admitted or accepting as proved for the sake of arguments the facts from which the plaintiff claims to draw such inference, Ordinarily these objections are heard and decided at the time of trial but the court should try that objection before proceeding with the trial of other issues, if the case or any part thereof can be disposed of on the decision of any such objection.
(iii) Special Defence. A special defence or “Plea of confession and avoidance” differs entirely from a mere traverse. While a traverse merely contradicts and compels the plaintiff to prove the fact, a special defence is a plea whereby the defendant admits the allegations made in the plaint ‘but seeks to destroy their effect by alleging affirmatively certain facts of his own, showing some justification or excuse of the matter charged against him or some discharge or release from it.
For example, in a suit for breach of contract, the defendant may admit the contract and at the same time plead that the defendant was induced to enter into the contract by fraud.
Rule 3 of Order VI enumerates certain instances of special defence but the list is not exhaustive.
Following are some of the special defences which are commonly made:
(i) Limitation
(ii) Jurisdiction,
(iii) Accord and satisfaction,
(iv) Payment,.
(v) Estoppel,
(vi) Res-judicata,
(vii) Acquiescence,
(viii) Illegality,
(ix) Justification,
(x) Laches,
(xi) Transferee from ostensible owner.
(3) Signature and Verification. A written statement is signed and verified in the same manner as a plaint.
Q. 4(b). What is an affidavit? State the rules of its drafting.
Ans. Affidavit. An affidavit means such statement in writing on oath as has been made before an authorized officer. Order XIX, Rule 3(1) provides that affidavits should be confined to such facts as the deponent is able of his own knowledge to prove, except in interlocutory application, on which statements on his belief may be admitted provided that the grounds of such belief are stated.
Drafting an affidavit. Affidavit should be addressed to the court with mention of the suit number (if any) and name and address of the deponent (maker of the affidavit). Thereafter follows the main body of the affidavit which ends in verification. The deponent should separately mention the facts which he believes with his own knowledge and those which he believes on the basis of the information received by him.
The Code of Civil Procedure does not prescribe any particular method of drafting the effidavits. For the sake of convenience the Rules of Allahabad High Court in this context are given below-
1. Only very necessary statements should be made in affidavits.
2. Complete details as to identity of the deponent must be given.
3. Statements should be in the first person.
4. Affidavit should be divided into separate and numbered paragraphs and as far as possible one topic or fact should be stated in one paragraph.
5. Every person or thing referred to in an affidavit must be completely and correctly described.
6. Generally, such facts only should be stated of which the deponent has his own knowledge.
7. If any fact mentioned in the affidavit is based on ary source or document, its full details should be given.
8. Lastly, the deponent should verify that the statement made in para such and such is true to his personal knowledge and that made in para such and such is true on the basis of the information received by him, nothing has been concealed and no part thereof is false.
9. The verification paragraph must be signed by the deponent and countersigned by his advocate.
Attestation of undated affidavit is improper. [Umesh Kumar v. State of Andhra Pradesh, AIR 2014 SC 1106].
Q. 4(c). State the general rule of alternative and inconsistent pleas. What is their effect on pleading?
Ans. General rules of alternative and inconsistent pleas
Generally the parties are bound by their own pleas and if a party does not state any ground in his main pleading, he cannot establish a new case on that ground. Hence it is encumbent on the parties to mention their every claim and defence. It is on the basis of this rule, that the alternative and inconsistent pleas are allowed.
Alternative pleas. The defendant can put forward more than one clear and separate pleas in his defence. The Supreme Court in Firm Srinivas Ram Kumar v. Mahavir Prasad, AIR 1951 has observed that the plaintiff can take the help of several pleas and there is no bar thereon in the C.P.C. The same rule would hold good in case of defendant. Thus, for example, in suit for dissolution of marriage, judicial separation can be an alternative plea.
Inconsistent pleas. When parties take many pleas, some may be inconsistent but they are allowed unless they or the facts on which they are based are contrary to each other. Thus a woman defendant stating that she was never married to the plaintiff may by way of alternative plea say that though the marriage ceremony involving her and the plaintiff was sufficient to effect a marriage, yet such a marriage was a nullity because her consent thereto was not taken.
Effect of alternative and inconsistent pleas. Though such pleas result in delay in the disposal of suit and cost of the suit, and at the same time generally weaken the case of the party taking such pleas, the Supreme Court held in S. Shamiullah v. S. Farid, (1969) that if some of the alternative could not be proved, it cannot be concluded on that ground that the other pleas are also false or weak. All such pleas have to considered on their merit.
Q. 5(a). Explain what is set-off and mention its classification. Differentiate between set-off and counter claim.
Ans. Set-off. Set-off may be defined as the total or partial extinction of debts to which two persons are reciprocally debtors to one another, by the credits of which they are reciprocally creditors to one another.
A defendant in a suit for recovery of money can not only defend that suit but can also claim a set-off in respect of any claim of his own and if his claim exceeds that of the plaintiff, he can make a claim for a decree for the amount in excess. Such a plea of set-off will be tried as if the defendant has brought a suit and will be determined even if the plaintiff’s suit is dismissed or withdrawn.
Essentials to constitute a legal set-off. According to sub-rule (1) of Rule 6 of Order VIII a claim by way of a set-off is allowed in the following conditions-
1. The sum claimed must be ascertained claim of money.
2. It must be legally recoverable,
3. It must be recoverable by the defendant,
4. It must be recoverable from the plaintiff,
5. The sum claimed by the defendant must not exceed the pecuniary limit of the jurisdiction of the Court.
6. Both parties must fill the same character as they fill in the plaintiff’s claim.
Illustrations. (i) A sues B on a Bill of Exchange for Rs. 15000. B holds judgment against A for Rs. 15000. The two claims being both definite, pecuniary demands may be set-off.
(ii) A sues B for Rs. 500/- on the basis of a Bill of Exchange. B holds a decree for Rs. 100/- against A. Both claims can be set-off being claim for ascertained sums and hence B may have to pay A only Rs. 400/-.
Thus, an amount due to the defendant in the capacity of a manager cannot be set-off against personal claim against him.
There are two kinds of set-off:
(i) Legal set-off.
(ii) Equitable set-off.
(i) Legal set-off.-Set-off provided for under Rule 6 of Order VIII is legal set-off.
The essentials to constitute a legal set-off are:
(a) That the suit in which the set-off is claimed must be one for the recovery of money; and
(b) The defendant’s claim must be for an ascertained sum of money of which the amount is fixed, and known; it does not necessarily mean a suit admitted by the other side or decreed by the court.
(ii) Equitable set-off. It is a set-off allowed on equitable grounds in respect of unascertained sum. The right of set-off will be found to exist not only in the cases of mutual debts and credit but also where cross demands arise out of one and the same transaction or are so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant be driven to a cross suit.
In such cases, since the claim of the defendant is for an unascertained amount, the court has first to ascertain it. A claim for equitable set-off is discretionary on the part of the court which is considered judicially on the ground of the public policy of avoiding multiplicity of litigation. Though Order VIII, Rule 6 recognises only legal set-off, Order XX, Rule 19 (3) provides that the provisions of this rule shall apply even if the set-off or counter claim is inadmissible.
In Allahabad Bank Ltd. v. Shankar Lal, 1968 JLJ (S.N.) 41, it has been laid down that though the present law does not allow set-off for unascertained sum of money, like damages, it is now well-established that set-off in favour of the defendant may be allowed for such sums.
The main points of distinction between a legal set-off and equitable set. off are as given in the following table:
Legal Set-off
1. Claim for a legal set-off is for an ascertained sum of money.
2. For a legal set-off, it is not necessary that the claim for set- off should arise from the very transaction from which the plaintiff’s claim has arisen.
3. The money cross-claimed by way of legal set-off must be legally recoverable from the plaintiff; e.g. not time-barred by the law of limitation.
4. Court fee has to be paid for admission and disposal of claim for legal set-off.
Equitable Set-off
1. Claim for an equitable set-off is made for an unascertained sum of money
2. For an equitable set-off, it is necessary that the cross-claim of money and the sum claimed by the plaintiff must be outcome of one and the same transaction.
3. It is not necessary for an equitable set-off, that the sum cross-claimed by the defendant must be legally recoverable on the date of making claim; e.g., it may be even time-barred.
4. Admission and disposal of a claim for equitable set-off depends on the discretion of the Court.
Counter-claim [Order VIII Rules 6-A to 6-G].-When the defendant in an action has the claim against the plaintiff which he might have asserted by bringing a separate suit, he may raise it in the existing suit as a counter-claim in his written statement, giving the facts on which it is based. Under the Code of Civil Procedure, counter-claim is not allowed but the court may grant it as equitable relief. There is in law a well-settled distinction between a set-off and a counter-claim. A set-off is a ground of defence, a shield and not a sword which if established affords an answer to the plaintiff’s claim wholly or pro tanto,; a counter-claim as such affords no defence to a plaintiff’s claim but is a weapon of offence which enables a defendant to enforce a claim against the plaintiff effectually as is in an independent action.
A counter-claim may be set up only in respect of claim as to which the party can bring an independent action in the court in which the counter claim is brought, yet the counter-claim need not be an action of the same nature as the original action or analogous thereto and though there is no provision in the Code for making a counter-claim, the court has the power to treat the counter-claim as a cross-suit and hear the original suit and the counter-claim together if properly stamped (Munshi Ram v. Radha Krishna, AIR 1975 Pun & Haryana 112).
Distinction between set-off and counter- claim. The following are the distinction between set-off and counter-claim.
(i) Set-off is for an ascertained sum of arises out of the same transaction as the plaintiff’s claim. A counter-claim may not arise out of the same transaction.
(ii) Set-off is a defence and as such has to be pleaded in the written statement. Counter-claim on the other hand is a weapon of offence enabling a defendant to enforce his claim against the plaintiff as effectively as in an independent action. It is a sort of cross action. A set-off, on the other hand, can be used as a shield and not as a sword.
(iii) Set-off is a claim by the defendant in defence which may exceed the plaintiff’s claim. A counter-claim by the defendant may, however, exceed the plaintiff’s claim being in the nature of a cross-action.
(iv) In the case of set-off, the plaintiff in order to establish his plea of limitation has to prove that set-off was barred when the plaintiff commenced his action. In a counter-claim, the plaintiff has to prove that it was barred when it was pleaded.
Q. 5(b). Draft a plaint for an interpleader suit.
Ans. In the Court of Civil Judge (Senior Division) Allahabad
Suit No………………………. of 2019
Umesh Chandra aged 42 years, S/o Sitaram,
r/o 812, Old Katra, Allahabad……….. ..Plaintiff
Versus
Ram Chandra Misra aged 39 years, S/o Sri Har Prasad, 142, Bairahna
Allahabad and
Radhakrishna aged 40 years, S/o Krishna Lal, r/o 742, Alopibagh,
Allahabad….. …………….Defendants
The plaintiff above named respectfully submits as under:
1. That one Ganesh Prasad handed over a box of some gold ornaments for safe custody to the plaintiff on 15th May, 2019 and died on 3rd August, 2019.
2. That the defendant No. 1 demands the said ornaments from the plaintiff, claiming to be the cousin and legatee of the said Ganesh Prasad.
3. That the defendant No. 2 denies the genuineness of the will of the said Ganesh Prasad in favour of the defendant No. 1 and alleging himself to be the brother of Ganesh Prasad, demands the ornaments from the plaintiff.
4. That the plaintiff does not know as to who is the rightful claimant of the said ornaments.
5. That the plaintiff having no interest in the said ornaments and no collusion with any of the defendants, is willing and ready to deliver the ornaments to any person whom the Court declares entitled to it.
6. That the cause of action arose on the death of the said Ganesh Prasad on 3rd August, 2019 and then on 11th August, 2019 when the defendants No. 1 and 2 put their claims over the said ornaments, within the territorial jurisdiction of the Court which can take cognizance of the suit.
7. That the valuation of the suit for the purposes of jurisdiction is Rs. 42.000 on which Court fee has been paid.
The plaintiff, therefore, prays for the following reliefs:
(A) That the defendants be restrained from taking any steps or proceedings against the plaintiff in relation to the said ornaments.
(B) That the defendants be ordered to interplead over their claim to the said ornaments and plaintiff be discharged from all liability to either of the defendants in relation thereto.
Q. 6(a). What is the object of framing issues? Explain procedure by which issues are framed.
Ans. Object of framing issues
The issues are framed in a suit and rival contentions of the parties based on their pleadings are determined so that the suit may proceed with respect to those contentions and the parties may become fully aware of the precise questions to be tried by the court and proved or disproved by the parties.
The object of the framing of issues is to make known to the parties the precise question which will be tried by the court, and for which the parties have to produce evidence to prove or disprove it.
Procedure of framing issues. The issues are framed by the court from all or any of the following materials:
(i) Allegations made by the parties or by any person present on their behalf or made by the pleaders of such parties.
(ii) Admissions, non-admissions made in the pleadings or in answer to interrogatories delivered in the suit.
(iii) The contents of the documents produced by the parties in the court.
Q.6 (b). Write short notes on-
(i) Non-joinder and misjoinder
(ii) Representative suit,
(iii) Effect of non-joinder and mis-joinder of parties,
(iv) Cause of action,
(v) Rejection or return of plaint.
Ans. (i) Non-joinder and mis-joinder
According to the various rules of Order I of the C.P.C., when the proper persons from among the plaintiffs or defendants are not impleaded in a suit. appeal or proceedings, it is said to be non-joinder while impleading a person as plaintiff or defendant whose presence is not proper is said to be mis-joinder. When the inclusion of a person as one of the parties is so necessary that its presence has been enjoined by law or no decision can be given without his presence or the record, such a person is called a necessary party. Non-impleading a necessary party results in dismissal of the action. appeal or proceeding unless the lacuna is removed by amendment with the permission within the period prescribed by law or fixed by the court.
A proper party on the other hand is one whose presence though not essential to the filing of the suit, appeal or proceedings, yet is desirable or even necessary for enabling the court to adjudicate on the matter properly, adequately and completely. Non-joinder of the proper party even if his presence is necessary, differs from the non-joinder of a necessary party in that a non-joinder of a proper party is not fatal to the action, appeal or proceedings but may lead to an incomplete or inadequate decision. However, amendment with the permission of the court can rectify this mistake as to joinder in this situation as well. It may be noted that every necessary party is a proper party but every proper party is not always necessary party.
1. Joinder of Plaintiffs.- Order I, Rule 1 of the C.P.C. enjoins that all persons may be joined in a suit as plaintiff where-
(a) any right to relief in respect of or arising out of, the same act or transaction or series thereof is alleged to exist, in such persons, whether jointly or severally or in the alternative,
(b) the right to relief alleged to exists in them must be in respect of the same transaction or transactions, and
(c) if such persons had brought separate suits, any common question of law or fact would arise.
However, Order I, Rule 2 empowers the courts to permit the plaintiffs to elect to implead or exclude a joinder of plaintiff if his presence embarrassing or dilatory of the trial or order separate trials or make such order as may be expedient.
2. Joinder of defendant.- Order I, Rule 3 states, that all persons may be joined in one suit as defendants where-
(a) any right or relief in respect of or of the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly or severally or in the alternative, and
(b) if separate suits are brought against such persons, any common question of law or fact would arise.
Here also, under Order I. Rule 3-A the court may order separate trial or make such order as may be expedient where the joinder of any defendant may embarrass or delay the trial. Under Order I, Rule 4, the court may make appropriate order without amendment as for one or more of the plaintiffs who may be entitled to relief and against one or more of the defendants who may be liable according to their respective liabilities. Order I, Rule 5 lays down that the same rule applies, in case one or more of the defendants may not be interested in all the relief claimed.
If the plaintiff is in doubt as to the persons from whom he is entitled to get redress, he can join one or more persons as defendants so that the court may assess their liabilities. (Order I, Rule 7). Where the plaintiff adds any defendant, unless the court otherwise directs, it shall be amended and copies of the summons and plaint shall be served upon the new defendant.
In suit for specific performance of contract for sale, subsequent purchaser is neither necessary party, nor proper party. He is not entitled to join as defendant in suit. [Mal Chand v. Shiv Kumar, AIR 2017 Raj. 86].
(ii) Representative Suit
Order I, Rule 8 provides that where there are numerous persons having the same interest in one suit-
(a) one or more of such persons may, with the permission of the court, sue or be sued or may defend in such suit on behalf of or for the benefit of all persons so interested, and
(b) the court may direct that one or more of such persons may sue or be sued or may defend such suit, on behalf of or for the benefit of all persons so interested.
Where any person suing or defending in a suit does not proceed with due diligence, the court may substitute in his place any other person having same interest in the suit. Such suits instituted or defended by one person on behalf of several persons having same interest is called representative suit. In such proceedings, notice to the represented persons is necessary and any person, who is incompetent to bring a suit on his own behalf (such as a minor or lunatic), cannot be allowed to bring or defend a suit in representative capacity. A decree passed in a representative suit is binding on all persons on behalf of whom or for the benefit of whom the suit was filed or defended. [Ahmad Adam Sait v. M.E. Makhri, AIR 1960 SC 368, 376]. The Apex Court also observed that the object of Order I, Rule 8 is to facilitate the decision on question in which a large number of persons are interested without recourse to the ordinary procedure, i.e., to prevent multiplicity of litigation. Withdrawal by or death of a plaintiff does not change or abate such a suit.
(iii) Effect of non-joinder and mis-joinder of parties
Order 1, Rule 9 says that no suit shall be dismissed on the ground of non-joinder or mis-joinder of parties, and the court shall decide the question of the rights and interests of the parties. But this rule shall not apply to the case of non-joinder of a necessary party.
Order 1. Rule 10 of C.P.C. enables the Court to add any person as party at any stage of the proceeding, if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate and settle all the questions.
The court may, at any stage of the proceedings, either upon or without application of either party and on such terms as they appears just to the court, order that (i) the name of any party improperly joined whether as plaintiff or defendant be struck out, and (ii) the name of any other party improperly not joined, whether as plaintiff or defendant be added if the court is satisfied that the presence of such person is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. If a person is added as defendant the proceedings shall begin only on the service of summons [Order 1, Rule 10 (2)].
Order 1 Rule 9 by its main part provides that the defect of mis-joinder of parties will not render the suit- liable to be dismissed. However, the proviso (inserted by 1976 Amendment) appended to it seems to lay down the rule that non-joinder of a necessary party shall be fatal to the suit.
When all contesting candidates are made parties, there can be no mis- joinder of necessary party. [Rajendra Pratap Singh @ Moti Singh v. Ram Singh, AIR 2017 All. 12].
(iv) Cause of action
Though no enactment has defined “cause of action”, it has been defined and explained by courts in their decisions from time to time, simply stated, cause of action is complete bundle of the important facts which the plaintiff has to prove in order to entitle him to the right to success in his suit.
The observations of the Privy Council in Mohammed Khalid v. Mahabub Ali, AIR 1949 PC 78, which have been accepted by the Supreme Court as “good law” in Suraj Rattan v. Azamabad Tea Co., AIR 1965 SC 295, about cause of action are important and given below in a second suit for relief omitted in the first suit.
In Suraj Rattan’s case the Supreme Court said that the test adopted for determining, the identity of the causes of action in two suits are sound and express correctly the property interpretation of Order IX, Rule 9. The observations of the Privy Council in Mohammad Khalid’s in this respect are given below:
(a) Firstly, correct test in cases falling under Order II. Rule 2 is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit,
(b) Secondly, the cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in Order to his right to the judgment.
(c) Thirdly, if the evidence to support the two claims is different then the causes of action are also different,
(d) Fourthly, the causes of actions in the two different suits may be considered to be the same, if in substance they are identical, and
(e) Fifthly, the cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.
The above second and fifth paragraphs explain and give the meaning of the cause of action. As held by the Allahabad High Court in I.T.C. Ltd. v. Rakesh Behari Srivastava, AIR 1997 All 323; Order VII, Rule 11 of the C.P.C. casts a duty on the court to reject the plaint for non-disclosure of cause of action and it cannot be left to any event of an objection which may be raised by one party irrespective of any objection taken by the defendant.
The cause of action arises when the real dispute arises, i.e., when one party asserts and the other party denies any right. [Rashtriya Ispat Nigam Lid. v. Prathusa Resources and Infra Pvt. Ltd., AIR 2016 SC 861].
Joinder of cause of action. The general rule is that for every different cause of action a separate suit must be instituted, but Order II, Rule 3 permits the joining of several causes of action in one suit by-
1. One plaintiff against the same defendant,
2. Several plaintiffs against one and the same defendant, provided all such plaintiffs are jointly interested in all the causes of action, or
3. One plaintiff against several defendants jointly provided all such defendants are jointly interested in all the causes of action, or when such defendants are not jointly interested in all the causes of action which arose from the same act or transaction, and there is a common question of law or fact.
Omission or relinquishment of a claim for one or more of the several reliefs, except with the permission of the court, prevents the plaintiff from instituting another suit for the relief or reliefs omitted or relinquished.
Mis-joinder of causes of action. Joining of several causes of action is said to be mis-joinder of the causes of action where there are several defendants but all are not jointly involved or interested in all such causes of action.
The effect of mis-joinder of causes of action is that except on the ground of merit of the suit or jurisdiction, where there has been a non- joinder or mis-joinder of cause of action, no decree shall be reversed or materially altered in appeal or remanded in appeal. This rule, however, does not apply to a case of non-joinder of a necessary party.
(v) Return or rejection of plaint
(a) Return of plaint. Under Order VII, Rule 10, a court can return a plaint to the plaintiff for presenting before the court before which it ought to have been filed and such a return of plaint can be made at any stage of the proceedings. Such a return of plaint is made for presenting it before another court either on the ground of lack of pecuniary or territorial jurisdiction of the returning Court or on the ground of agreement between the parties. Appellate or Revision court can also set aside a decree and direct its return to the plaintiff. But no such transfer can be made where the court to which it might be transferred did not exist at the date of filing of the suit.
On returning a plaint, the court shall mention the dates of filing and return of the plaint and a brief statement of reasons for the return.
(b) Rejection of plaint. Under Order VII Rule 11 a court can reject a plaint on any of the following grounds:
1. If the cause of action has not been shown,
2. If the valuation of the relief claimed under the suit is less and the plaintiff has failed to correct it within the time fixed by the court,
3. If the plaint has been insufficiently stamped and the plaintiff has failed to file the same with sufficient stamps, or
4. Where the statement in the plaint shows that the suit has been barred by law. Here the term ‘law’ connotes both Judge made law as well as statutory law [Hernies Marines Ltd. v. Capeshore Maritime, AIR 2016 NOC 732 Guj.).
5. Where it is not filed in duplicate.
6. When the plaintiff fails to comply with provisions of Order 7, Rule 9.
Mere presence of arbitration clause in agreement does not oust jurisdiction of Civil Court. Rejection of plaint on this ground cannot be granted. [C.L. Athuagar v. Hiraman Lal, AIR 2017 Chh. 90].
After the rejection of plaint the court shall record the effects of and the reasons for the rejection. The plaintiff, however, on rejection of his plaint by the court, can bring a fresh suit (Order VII, Rule 13).
Q.7. (a) State and discuss the various parts of a Memorandum of Civil Appeal. What do you understand by Cross-Objection and Cross Appeal.
Ans. Essential parts of Memorandum of Appeal
A memorandum of appeal may be divided into following parts:
(1) Formal part
(2) Material part
(3) Relief claimed
(1) Formal part. This part consists of (i) Heading and title and (ii) Introductory statement.
(i) The heading and title. The memorandum of appeal should, like a plaint, begin with the heading ie. the name of the court in which the appeal is filed. After heading, title of memorandum should be given. Title includes the space for number of appeal, names with description, and addresses of the appellants and respondents.
(ii) The Introductory statement. After heading and title of the memorandum of appeal, an introductory statement giving the particulars of decree or order appealed against (i.e., its number, date, court and the name of Presiding Officer) should be given. A copy of the decree or order appealed against should also be appended with the memorandum of appeal. After such details the valuation of appeal should be written.
The form is as follows.
In the Court of District Judge, Allahabad.
Civil Appeal No………………….of 2019
Sri Kali Charan S/o Sri Hari Shanker
resident of 25, Katra, Allahabad…… Appellant
Versus
Sri Girish Chand S/o Shri Nanoo Mal Resident of 182/2, Court Road, Allahabad…………………………Respondent.
Appeal under Section 96, C.P.C. from the decree dated 28.2.2019 passed by Shri M.L. Agarwal, Munsif City Allahabad in suit No. 421 of 1978.
Value of the Appeal-Rs. 5000/-
(2) Material Part. The material part contains the grounds of appeal. The grounds of appeal are the grounds on which the decree or order appealed is objected or appealed. The grounds of appeal should begin with the word ‘because’. Any mistake committed by the lower court in weighing the evidence or in law, any misapplication of law to the facts of the case, any material irregularity in the trial of the case, are good grounds of attack in the memorandum of appeal. In this connection, two conditions should be remembered which are given below:
(i) The mistake of the lower court should be material and must have affected the decree or order appealed against. If the lower court has come to a wrong finding or question of fact or on a point of law which is not material to the case and the decision of the lower court is not based upon it and if the case would not be affected even if ‘his wrong finding be reversed the finding is immaterial and need not be challenged in appeal. For example, if an opinion is expressed on a point as obiter dictum the same need not be challenged in appeal.
(ii) The objection taken must be such as arise from the pleading and evidence of the parties, ie., the appellant cannot make out an entirely new case in appeal. A point not taken in the lower court cannot be argued in appeal unless it is an important question of law or a point which goes to the root of the case e.g. question of jurisdiction or res judicata. (Section 105, C.P.C.)
The following rules have been given in Order XLI, Rule 1 (2), C.P.C. for drafting memorandum of appeal:
(i) Grounds of objection should be written distinctly and specifically.
(ii) They should be written concisely.
(iii) They must not be framed in a narrative or argumentative form.
(iv) Each distinct objection should be stated as a separate ground and the grounds should be numbered consecutively.
(3) Relief. Every memorandum of appeal filed in the court should contain the statement of relief.
Signature or verification. The memorandum of appeal need not be signed by the appellants. It may be signed by the counsel for the appellants. No verification is necessary.
New grounds of appeal. The appellant cannot make out an entirely new case in appeal. He can not raise a plea which he has not raised before the trial court.
The following are some of the pleas which can be taken for the first time in appeal:
(i) A plea of jurisdiction.
(ii) A plea of estoppel effecting jurisdiction.
(iii) An objection of res-judicata
(iv) A plea of limitation.
(v) A pure legal plea.
Cross-Objection. When a party to a suit is aggrieved by the decree of a court, he can either file an appeal to the Appellate Court or file a cross-objection to the appeal, if any, filed by the opposite party. The cross- objection can be filed within 30 days from the date on which the notice of appeal was served on him or his counsel and only such objections can be raised which could be raised by way of appeal. A cross-objection can be filed by respondent only but in the form of a memorandum of appeal.
It has been held in Venkateshwartu v. Ramanna, AIR 1950 Mad 379, That though a cross-objection under Order 41, Rule 22 can be filed against the appellant, in exceptional cases it can be filed against a co-respondent as well. It was also pointed out in the decision, that the language of Order 41, Rule 33 is quite general and an Appellate Court can award relief in cases of cross-objection not only between the appellant and respondent but also between respondent and co-respondent.
The Supreme Court has ruled that a respondent can support a decree on any grounds which the court below upheld against him, not under Order 41, Rule 22 but under Article 136 of the Constitution.
Cross-appeal. When both the parties to a suit are aggrieved by a decree, though on different issues, both can file separate appeals against the decree. Such appeals are called cross-appeals which differ from cross- objection in that in cross-appeals there is only one appeal and a cross- objection by its respondents but in a cross-appeal there are filed two appeals, one by each party, so that the appellant in one appeal is respondent in the other and vice versa.
Q. 7 (b) Draft a second appeal.
Ans. Second Appeal
In the Hon’ble High Court of Judicature at Allahabad (Prayagraj)
Second Appeal No. …………….of 2019
Ram Lal, aged about 40 years’ son of Dhyan Chandra, resident of Vill……..Tahsil……… District………… Prayagraj
Versus
1. Ram Pher, aged about 65 years, son of Sheo Raj, resident of Village. ..Tahsil… ….District…Prayagraj.
2. Hari Prakash, aged about 35 years, son of Pyarey Lal, resident of Village…….. Tahsil……….. District …………Prayagraj.
Nature of suit……………Specific performance of Contract
Valuation of suit ………………. Rs, 600000/-
Valuation of appeal……………Rs. 6,00,000/-
Court-fee paid. Rs. ……..(as paid in Courts below).
The above named appellant appeals against the appellate decree, dated August 4, 2019 passed by Sri X, District and Sessions Judge, Prayagraj in Civil Appeal No. 264 of 2015, confirming a decree dated February 25 of 2015. passed by Sri Y, Civil Judge, Junior Division, Prayagraj, in Suit No. 36 of 2014, dismissing the appellant’s suit on the following ground among other substantial questions of law-
1. Whether the circumstances preceding and attended to the execution of the agreement in question Exhibit 6 found by the learned Court below as suspicious, were of such a nature as to discard the entire oral evidence on record regarding the factum of execution of the said agreement without appraising the same ?
2. Whether mere denial by the subsequent transferee of any knowledge about the previous agreement was sufficient to discharge the burden of prove that he was a bona fide purchaser for value without notice, thereby shifting the burden on the plaintiff to prove otherwise ?
3. Whether affixation of thumb mark by the respondent No. 1 on the agreement in question, Exhibit 6, has been admitted, whether, the burden of proof that the said thumb mark was obtained by force lay on the respondent No 1 in which he has failed and in spite of such admission the burden of proving execution of document rested on the appellant?
4. Whether the respondent No. 2, was not a bona fide purchaser for value without notice of agreement in question and the appellate Court erred in law in not holding otherwise without properly considering the evidence on record ?
5. Whether the learned Courts below were legally justified in discarding the statements of P.W. 1, P.W. 2, P.W. 3, P.W. 5 and P.W. 6 regarding the delivery of possession of the property in question by the respondent No. I to the appellant in part performance of the contract merely on the ground that mutation of some of the disputed plots have been made in favour of the subsequent transferee, i.e., respondent No. 2?
Prayer
Wherefore it is most respectfully prayed that the decree of the Courts below may be set aside and the plaintiffs-appellants claim be decreed with costs.
(Sd.) A. K. Mishra
Advocate
Counsel for the Appellant
Prayagraj
Dated 12th of August, 2019
I, certify that I have examined the record and that in my opinion the grounds of appeal contained in 1 to 5 of this memorandum are good substantial questions of law.
(Sd) A. K. Mishra
Advocate
Counsel for the Appellant
Q. 7 (c). What is substantial question of law ?
Ans. Substantial question of law. -The expression ‘substantial question of law is not defined in any of the Acts or statutes where this expression appears. The true meaning of this expression, however, is now well-settled by judicial pronouncements. In Sir Chunnilal V. Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314 the Apex Court observed, “a question of law would be a substantial question of law if it directly or indirectly affects the rights of parties and/or there is some doubt or difference of opinion on the issue”. But “if the question is settled by the Apex Court or the general principles to be applied in determining the question are well settled, mere application of it to a particular set of facts would not constitute a substantial question of law [Krishna Kumar Agrawal v. Assessing Officer, (2004) 266 ITR 380 Del].
Q. 8. State the special rules regarding the contents of writ petitions filed in the High Court. What papers should be accompanied with such petitions?
Ans. The Writ Petitions are filed before the High Court and Supreme Court under Article 226 of the Constitution of India. The High Court has the power to issue writs specified in the article throughout the territories in relation to which it exercises jurisdiction.
The High Court has the power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases any government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.
The High Court has the power to issue directions, writs or orders for the enforcement of fundamental rights and for any other purpose.
Contents of writ petition. The petition can be divided into three parts-
(i) Title. The title of the writ includes the name of the High Court, the name of the parties, the number and year of the case and a reference to the article under which the petition is filed in the High Court.
The petition is generally addressed to the Chief Justice and companion Judges of the High Court.
(ii) Body of the writ. The body of the writ includes the main body of the petition containing the facts of the case stated in paragraphs consecutively numbered. If there is delay in filing the writ petition, then the petitioner should explain the cause of delay.
After the facts, the grounds on which the particular writ, order of direction is prayed for, are given. The grounds are divided in paragraphs. These paragraphs are also numbered serially.
(iii) Relief part. The last paragraphs consists of the prayer or relief which the petitioner claims.
Annexures and affidavits which should be appended with the writ. The important documents referred to in writ petition should be appended as annexures to the petition. If the document is available in original, then the original should be submitted. But if it cannot be filed in original, then their attested or certified copies should be made annexures. All orders challenged and other concerned documents should be appended with the writ petition either in original or in attested or certified copies form.
The writ petition should be accompanied by an affidavit in support of the facts stated in the petition. The affidavit must be verified as per rules.
In some High Courts, prayer for interim relief is permitted to the relief claimed in the writ petition, while in other High Courts a separate application is required to be made for interim relief which should also be supported by an affidavit.
DRAFTING
Q. 9(a). State the rules of drafting (i) an application and (ii) an affidavit.
Ans. (i) Drafting an application. The form of an application can be divided into three parts, the description of each of which is as follows:
1. Name of Court and the parties should be mentioned first and if the application is to be given in the course of any suit or proceeding, these should be mentioned as in a written statement.
2. The body or main part of the application should be divided into paragraphs. Its form has to be same as that of a plaint with the difference that in an application, affidavit is not required but it is only stated, “on the grounds set out in the accompanying affidavit, it is prayed that………”
3. Prayer has to be very clearly written, and, if required by law verified. The application must be signed by the applicant or his counsel at the end.
(ii) [See Q. 4(b) for this question].
Q. 9 (b) (i) Draft a plaint in a suit by a landlord against a tenant, for arrears of rent in respect of residential house and for the tenant’s ejectment therefrom on the ground that the tenancy which was from month to month has been terminated by a notice for ejectment by the landlord.
(ii) Draft a written statement in reply to the suit mentioned in question above, raising by way of additional pleas the defence that the plaintiff has waived the notice of ejectment and that in view of the provisions of the U.P. Rent Control and Evictions Act the plaintiff has no right to eject the defendant without obtaining the permission of the District Magistrate to do so.
Ans. (i) Plaint of a suit for ejectment and arrears of rent:
In the Court of City Munsif, Allahabad
Suit No. of 2019
X s/o, Y, r/o Katra, Allahabad……….Plaintiff
Versus
A. S/o. B, r/o 282 University Road, Allahabad………………….. Defendant.
The above named plaintiff states as follows:
1. That the defendant is the tenant of the plaintiff of the house detailed at the foot of the plaint at a monthly rent of Rs. 2000.
2. That the tenancy of the plaintiff begins on the first day of each English calendar month and ends at the last date of the same month.
3. That the defendant has not paid the rent w.e.f. Ist January, 2019 and after six months rent had become due the plaintiff has served the defendant with a notice terminating his tenancy and asking him to vacate the house on the expiry of 30 days of the receipt of the notice and clear arrears of rent within one month of the receipt of the notice.
4. That the notice has been served on the defendant on 5th July. 2019 but the defendant has not paid the arrears of rent nor did he vacate the house.
5. That a sum of Rs. 12000 towards the rent is due towards the plaintiff from the defendant which the defendant has not paid inspite of repeated demands and notice of ejectment served upon him, and hence the plaintiff is forced to file this suit.
6. That the possession of the defendant over the house in dispute is that of a trespasser after the expiry of the period of notice, i.e., Sth July, 2019 and he is liable to pay damages for use and occupation at Rs. 400 per month from 6th 6th July, 2019.
7. That the cause of action arose on 5th August, 2019 on the expiry of the period of notice, for ejectment and on 1st of every month from 1st February, 2019 to 1st July, 2019 as the rent became due, at Allahabad within the jurisdiction of this court and the court has jurisdiction to try this suit.
8. That the valuation of the suit for the purposes of jurisdiction and Court-fee is Rs. 24000, i.e., one year’s rent for ejectment on relief (a) and Rs. 12000 for arrears of rent relief (b) and the total valuation is Rs. 36000 for purposes of jurisdiction and court fees is paid accordingly.
9. The plaintiff therefore claims:
(a) That a decree for ejectment from the house detailed below be passed in favour of the plaintiff against the defendant.
(b) That a decree for Rs. 12000 as arrears of rent be passed in favour of the plaintiff against the defendant.
(c) That a decree for mesne profits pendente lite and future @ Rs. 400 per month be passed in favour of the plaintiff against the defendant, for which court fees will be paid in the execution department.
(d) That any other relief which the Court deems fit and proper under the circumstances of the case be awarded to the plaintiff against the defendant.
I, X, plaintiff verify that the contents of paras 1 to 6 of this plaint, are true to my personal knowledge and the rest of the paras 7 to 9 are true in my belief and on the basis of legal advice.
Verified this 18th August, 2019 at Allahabad.
Sd. X plaintiff
through Sri R. Advocate
Allahabad.
18.08.2019
Details of the house No. 282 University Road, Allahabad
North House of Mr. F.
South House of Mr. G.
East House of Mr. N.
West Street
(c) In the Court of City Munsif, Allahabad.
Suit No. 829. of 2001
X……………………………………Plaintiff.
Versus
Y…………………………………Defendant.
(ii) Written Statement
Written statement on behalf of A, defendant is as under:
1. Para No. I of the plaint is admitted.
2. Para No. 2 of the plaint is admitted.
3. In Para No. 3 of the plaint, only the receipt of notice is admitted.
4. In Para No. 4, it is admitted that the notice was served on the defendant on 5th July, 2001.
5. In Para No. 5, only it is admitted that a sum of Rs. 12000/- as rent was due to the plaintiff from the defendant, and the rest is not admitted.
6. Para No. 6 of the plaint is not admitted.
7. Para No. 7 of the plaint is not admitted.
8. Para No. 8 of the plaint is legal and does not require any admission denial.
9. Para 9 of the plaint is not admitted, and the plaintiff is not entitled to any relief claimed.
Additional Pleas
10. That the notice served on the defendant on 5th July, 2019 is not valid.
11. That the suit is bad for want of permission from District Magistrate Allahabad as required under Section 4 of the U.P. Rent Control and Eviction Act.
12. That the notice was waived by the plaintiff by accepting rent after the period of expiry of notice, for the period after notice.
I, A, defendant verify that the contents of paras 1 to 7 of this written statement are true to my personal knowledge and the rest of the paras 8 to 12 are based on legal advice, which I believe to be true.
Verified on 25 August, 2019 at Allahabad.-
Sd. A Defendant
through K Advocate,
Allahabad.
25.08.2019
Q. 10 (a). X is a druggist at Bangalore having a daily income of Rs. 2000/- Y filed a complaint on 10th February 2019, before the First Class Magistrate Bangalore charging X with having enticed away his wife. In pursuance of the complaint, X was tried for the said charge and was acquitted by the Magistrate on 30th July, 2019. The trial occupied 30 hearing dates before the Magistrate and X had to be present before the Court on all the dates of hearing. He has paid Rs. 25000/- to his Advocate for his defence.
Ans. Suit for malicious prosecution
In the Court of Sub-Judge, I, Bangalore
Suit No……………. of 2019
X s/o A, r/o 18, Civil Lines, Bangalore. ……………..Plaintiff
Versus
Y s/o B, r/o 215, Indira Colony, Bangalore……………… Defendant.
The plaintiff above named stated as follows:
1. That the defendant filed a complaint against the plaintiff before the First Class Magistrate Bangalore on 10th February, 2019 on the allegation that the plaintiff has enticed away his wife.
2. That the defendant was tried on the said charge by the Magistrate, and was acquitted on 30th July, 2019 after a prolonged trial.
3. That the defendant had brought the said charge against the plaintiff maliciously and without a reasonable or probable cause.
4. That by reason of the false implication in the case, the plaintiff has suffered much physical and mental pain and has been lowered in the estimation of his friends and was prevented from attending to his business, and incurred expenses in defending from the said charge. The details of the special damages are given below, to which the plaintiff is entitled.
5. That the details of the special damages are as follows:
(i) Fee paid to Mr. N., Advocate to defend at the trial
Rs. 25000/-
(ii) Travelling and diet money to witnesses
Rs. 10000/-
(iii) Loss of business as a druggist for 30 days @ Rs. 2000/- per day
Rs. 60000/-
Total. Rs. 95000/-
6. That the plaintiff claims Rs. 50000/- as general damages for loss of mental peace and lowering in the estimation of his friends.
7. That the defendant has not paid the said sum of Rs. 1,45000/- to the plaintiff inspite of repeated demands and registered notice of the solicitor served to him and hence the plaintiff is forced to file this suit.
8. That the cause of action for the suit arose on 30th July, 2019 the date of acquittal within the local limits of the jurisdiction of this court and the court has got jurisdiction to try this suit.
9. That the valuation of the suit for purposes of jurisdiction and payment of Court Fees is Rs. 1,45000/- and Court-fee is paid accordingly.
10. The plaintiff therefore claims:
(i) That a decree of Rs. 1,45000/- as general and special damages be passed in favour of the plaintiff against the defendant.
(ii) That the costs of the suit be awarded to the plaintiff against the defendant.
(iii) Any other relief which the Court deems fit and proper under the circumstances of the case be awarded to the plaintiff against the defendant.