Model Q Ans For CPC

Model Question & Answer for Judicial Service Main Exam On The Code Civil Procedure
Q. 1.What is the rule of Res -Subjudice in relation to civil proceedings? Ans The Rule of Res-Subjudice Section 10 of CPC postulates that No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title, where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed or in any court beyond the limits of India, established or constituted by the central government and having like jurisdiction or before the Supreme Court. This provision has been enacted to prevent trial of two parallel litigations before the court or courts, in which the matter in issue is directly and substantially the same. In this way a person is protected from multiplicity of proceedings. This provision also prevents delivery of two conflicting decisions on the same matter in issue. Lets take a suit filed by A against B for possession of house situated in Delhi, on the basis of a will in his favour executed by his mother. B disputes the genuineness of the will. Subsequently A files another suit against B on the basis of the same will executed in his favour by his mother. B again disputes the genuineness of the will. In given situation we can say that the same matter is in issue i.e. regarding genuineness of will in both the suit is directly and substantially in issue. So section 10 CPC would bar subsequent suit for the same claim on the condition provided therein.
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S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09
Q. 2 What is constructive res-judicata ? Ans Constructive res-judicata S-11 CPC, through its Explanation-IV provides that Any matter which might and ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit. The principle of res-judicata is based on the latin maxim which says no man should be vexed twice for the same cause and that it is in the interest of the state that there should be an end of a litigation. An adjudication is conclusive and final not only as to the actual matter determined, but also as to every other matter or point which the parties might and ought to have litigated and got the same decided as incidental to or essentially connected with the subject matter of the litigation. Therefore, where a party can set forth in a proceeding between him and the other party a plea available to him under the law either by way of attack or defence, law expects from such a party that he should set forth the same in that very proceeding itself so that the same is beard and finally decided by such court. However, where such a party fails to set forth such a plea of attack or defence in those proceedings, law prevents such a party from raising the that very plea in the subsequent proceeding. Such a party can not come and say that he did not know of this ground of attack or defence earlier when the proceedings were going on or that his counsel did not assist him properly, or that he had apprised his counsel of such a plea, but his counsel was negligent in not setting forth the same. Illustration A sues B on a contract for its specific performance and the suit is decreed in his favour thereafter B sues for rescission of the contract on the ground that is did not fully represent the agreement between the parties. This subsequent suit by B is not maintainable on the principle of constructive resjudicata.
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Case Law In Nawab Hussain Vs the State of U.P. a sub-inspector of police was dismissed by the DIG. The sub-inspector challenged the dismissal order on the ground that he was dismissed without affording him reasonable opportunity of being heard on charge leveled against him. But his suit is dismissed. Again the S.I, filed a suit challenging the dismissal order on the ground that his appointing authority was the I.G of police, so DIG has no power to dismiss him, as such dismissal is protected U/Art-311 of the constitution. But the Apex Court dismissed the second suit on the ground of constructive res-judicata. Q. 3 In a Civil suit, while framing issues, what material would you take into consideration? Ans Framing of Issues O-XIV CPC deals with framing of Issues. Issues are actually the points regarding which parties to the suit are in dispute. These arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence each material proposition affirmed by one party and denied by the other, shall form the subject of a distinct issue. So when parties are at variance on various points, many issues may arise in a case. Issues are of two kinds:(a) (b) Issues of Fact; Issues of Law.
Suppose, the defendant pleads in the written statement that the suit instituted against him is barred by jurisdiction or by limitation or by the principle of res-judicata and the Court opines that the case may be disposed
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of on issue of law, it may try that issue first. O-XIV, R3 CPC provides that Court may frame issue from all or any of the following materials:(a) (b) (c) allegations made on oath by the parties or by any person present on their behalf or made by the pleaders of such parties. allegations made in the pleadings or in answers to interrogatories delivered in the suit. the contents of documents produced by either party. Rule-4 provides that where court is of opinion that the issues cannot be correctly framed without the examination of some person, not before the Court or without the inspection of some documents, not produced in the suit, it may examine such persons and inspect such documents before framing issues. Q. 4 Explain the nature and principle of temporary and permanent injunction. What are the consideration for the grant of ad-interim injunction? Ans Temporary Injunction Temporary injunctions are such orders which are to remain in force till the duration of the litigation pending decision or until the further order of the court and they may be passed at any stage of suit. This relief is provisional in its nature and does not result in final determination of rights of parties. O-39 R1 provides that in case, it is proved by affidavit or otherwise (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree, or that the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors or that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
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(b) (c)
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R-2 provides that in any suit for restrains the defendant from committing a breach of contract, or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit and either before or after judgment, apply to court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. General Principle to grant Injunction Grant of ad interim injunction is discretionary, but court is to exercise discretion on sound judicial principles. Well settled principles have been laid down from time to time, which are to be kept in mind, while excersing discretion in case of grant of relief of injunction. These read as follows:(i) (ii) Prima facie case should exist in favour of the plaintiff. The plaintiff is to satisfy that irreparable injury will accure to him in case the relief of injunction is not granted and further that there is no other remedy available to him to save himself from the consequence of the apprehended injury. Plaintiff has to satisfy that balance of convenience lies in his favour. In case of such an injunction, only such a restraint shall be imposed as may suffice to stop the mischief complained of and where it is to stay further injury to keep things as they are at present. Perpetual or Permanent Injunction Perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit and the defendant is perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. This relief cannot be granted at any stage of a suit during its pendency. This determines rights of the parties.
(iii)
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Primary object for grant of perpetual injunction is to prevent a breach of an obligation. Where there is a breach of an existing legal right of a person, he is entitled under the law to prevent that breach by means of an injunction. Section -38 of specific Relief Act provides that a perpetual injunction may be granted to the plaintiff to prevent breach of an obligation existing in his favour, whether expressly or by implication. But such a relief can be granted subject to other provisions contained in or referred to by chapterVIII of the Act. Where the defendant invades or threatens to invade th e plaintiffs right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases:(a) (b) (c) (d) Where the defendant is trustee of the property for the plaintiff. Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion. Where the invasion is such that compensation in money would not afford adequate relief. Where the injunction is necessary to prevent a multiplicity of judicial proceedings. Illustration A rings bells or makes some other noise so near a house as to interference materially and unreasonably with the physical comfort of the occupier, the occupier may sue for an injunction restraining A from making the noise. Q. 4 A money decree for the recovery of Rs. 3.00 lacs is granted in favour of three plaintiffs A, B and C. A files execution petition for recovery of the entire amount. Whether such execution is maintainable? Ans Here in, money decree is sought to be executed. Decree was passed in favour of three plaintiffs, but it is sought to be executed only by one of them and that too for recovery of the entire sum of Rs. 3 lacs.
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O 21 R-15 CPC provides that where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for execution of the whole decree for the benefit of them all, or where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. However, while allowing decree to be executed on an application made under this rule, court is required to make such order as it deems necessary for protecting interest of the persons who have joined the execution application. From the facts, in question it is not clear as to whether C has filed execution petition only on his behalf or on behalf of all of them. In view of the above provision of O21, execution application is maintainable, even if it has been filed by one of the decree holders. However, while allowing the decree to be so executed by C, on his behalf and on behalf of two others, court is required to pass order so as to protect interest of the other two decree holders also. Q. 5 Under which circumstances, receiver is appointed? Ans Appointment of Receiver O40 CPC deals with appointment of receiver. Receiver is a person appointed by the court during pendency of the suit or after its disposal. Such appointment is required when possession of any property is to be recovered or the suit property or any other property is required to be seized in relation to a suit or decree. So where it appears to court to be just and convenient, court may by order (a) (b) (c) Appoint a receiver of any property, whether before or after decree. Remove any person from the possession or custody of the property. Commit the property to the possession, custody or management of the receiver; and
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(d)
Confer upon receiver all such powers, as to bringing and defending suits and for the realization, management, protection preservation and improvement of the property, the collection of rents and profits thereof, the application and disposal of such rents and profits, execution of documents as the owner himself has or such of those powers as the court thinks fit.
Q. 6 What do you know about provisions for withdrawal of a suit or abandonment of a part of claim? Ans Withdrawal of a suit
O23 CPC provides for withdrawal of suit or abandonment of part of claim. Rule (1) provides that at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of O32 extend, neither t he suit nor any part of the claim shall be abandoned without the leave of the Court. Rule (2) provides that an application for leave shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person. Rule (3) postulates that where the court is satisfied (a) (b) that a suit must fail by reason of some formal defect, or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. it may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. Rule (4) says where the plaintiff (a) abandons any suit or part of claim under sub rule (1) or
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(b)
withdraws from a suit or part of claim without the permission referred to in sub-rule (3) he shall be liable for such cost as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
Q. 7 when res-judicata applies between Co-defendants? Ans The doctrine of res-judicata may apply between Co-defendants, if the following conditions are satisfied:(1) (2) (3) (4) There is a conflict of interest between Co-defendants. It must be necessary to decide that conflict, in order to give relief to the plaintiff The question between Co-defendants must have been finally decided and The Co-defendants were necessary or proper parties in a former suit.
Q. 8 Make distinction between Res-judicata and Estoppel. Ans Main difference between Res-judicata and Estoppel are:(1) (2) (3) (4) (5) Res-judicata results from a decision of the court, while estoppels flows from the act of the parties. The rule of res-judicata is based on public policy, while estoppels proceeds upon the doctrine of equity. Res-judicata bars multiplicity of suits while estoppels prevents multiplicity of representations. Res-judicata ousts the jurisdiction of a Court to try a case, while estoppels is only a rule of evidence and shuts the mouth of a party. Resjudicata prohibits a man stating the same thing again in successive litigation, while estoppels prevents him from say one thing at one time and another thing at another time.
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(6)
Res-judicata binds both the parties to a litigation, while estoppels binds only that party, who made the previous statement or showed the previous conduct.
Q. 9 When objection may be raised as to jurisdiction of Court? Ans Objection as to Jurisdiction Section 21 CPC- says No objection as to place of suing will be allowed by an appellate or revisional court unless the following three conditions are satisfied (i) (ii) (iii) The objection was taken in court of first instance. It was taken at earliest possible opportunity and in cases where issues are settled at or before settlement of issue and There has been a consequent failure of justice All these three conditions must Co-exist. Q. 10- What is an ex-parte decree? What remedy is available to defendant in this regard. Ans Ex-parte Decree (OIX R2, 3 & 4) An ex-parte decree is a decree passed in the absence of defendants. Where the plaintiff appears, when the suit is called out for hearing and defendant does not appear, despite the duly service of summon upon him, the court may hear the suit exparte and pass a decree against him. Remedies: The defendant, against whom an ex-parte decree has been passed, has the following remedies, available to him (i) To apply to the court by which such decree is passed to set it aside U/O-9 R13 or
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(ii) (iii) (iv)
To prefer an appeal against such decree within 90 days from date of such decree U/S-96 (2) CPC. To apply for review within 30 days U/O-47 R1. To file a suit on the ground of fraud vide section 44 of the Indian Evidence Act 1872.
Q. 11- For what purposes Commission may be issued under CPC? Ans Issuence of Commission (S-75 to 78, & O-26) Section 75 to 78 deal with the power of court to issue commissions and detailed provisions have been made in O-26 of the Code. The power of court to issue commission is discretionary and can be exercised by the court for doing complete justice between the parties. This power can be exercised by the court either on the application by a party to suit or on its own motion. The court may issue a commission for any of the following purposes: (1) (2) (3) (4) (5) (6) (7) To examine witnesses. To make local investigation. To adjust account. T o make partition. To hold investigation. To conduct sale or To perform ministerial act.
Q. 12- When Caveat is lodged? Ans Section 148 A CPC deals with Caveat. Caveat is an entry made in the office of a registry or court to prevent a certain step being taken without previous notice to the person entering the caveat. S-148 A of CPC enacts the rule of
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caveat which says that where an application is expected to be made or has been made in a suit or proceeding instituted or about to be instituted in a court, and claiming a right to appear before the court on the hearing of such application, may lodge a caveat in respect thereof The object of caveat is two fold (1) (2) To safeguard the interest of a person against an order that may be passed on an application or in proceeding instituted or about to be instituted. To avoid multiplicity of proceedings. This section further provides that, it is duty of caveator to serve a notice of caveat lodged by him by registered post on the person or persons by whom an application against the caveator for an interim order has been or is expected to be made. Once a caveat had been lodged it is duty of court to issue a notice of that application on the caveator. A caveat lodged under subsection (1) will remain in force for 90 days from the date of filing caveat. Q. 13- When a Civil Court can exercise its inherent power. Ans Inherent power of Court (S- 151, CPC) Section 151 of CPC makes provision about the inherent power of court. The inherent powers of courts are in addition to the power specifically provided to the court by the code. It is a power inherent in the court by virtue of its duty to do justice between the parties before it. Inherent power can be used for following two purposes: 1. 2. For the ends of justice: - The end of justice would always depend upon the facts and circumstance of each case and the requirement of justice. To prevent abuse of process of a Court: - Some abuse may be committed by a court or by a party. It is true that the inherent power of a court is very wide and residuary in nature and they are in addition to the power specifically given on court by the code. But it must be exercised in absence of express
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provision in the code. It cannot be exercised in conflict with what had been expressly provided by the code or against the intension of the legislature. (i) (ii) Two important leading cases on inherent power of court are Manohar Lal Vs seth Hiralal and Ramchand Vs Kantayalal.
Q. 14- Write Notes on following topics: (i) (ii) (iii) (iv) (v) Restitution. Amendment of pleading Interpleader suit. Suits by indigent person Suits by or against Govt.
Ans (i) Restitution: S- 144 of CPC makes provisions about restitution. Restitution means restoring a benefit to the party, which the other party has received under a decree subsequently held to be wrong. The principle behind doctrine of restitution is that on the reversal of decree the law imposes an obligation on a party to the suit so received an unjust benefit or an erroneous decree to make restitution to the other party for what he was lost. It is based on well known maxim which means the act of court shall harm no one. S- 144 does not confer any new substantive right to the party. The section merely regulates the power of court in that behalf. The doctrine of restitution is based on equitable principles. It is the bounden duty of Courts to see that, if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied but for that mistake. The object behind this equitable principle is to shorten litigation and to afford speedy relief to a party adversely affected and merely lays down a procedure, the provision should be considered liberally. Conditions: Before restitution can be ordered under this section, the following three conditions must be satisfied:
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1. 2. 3.
The restitution sought must be in respect of the decree or order which had been reversed or varied. The party applying for restitution must be entitled to benefit under the reversing decree or order, and The relief claimed must be properly consequential on the reversal or variation of decree or order. Who may apply for restitution: Restitution can be claimed by the following two persons:
1. 2.
He must be a party to a decree or order varied or reversed. He must have become entitled to any benefit by way of restitution or otherwise under the reversing decree or order. Against whom Restitution can be granted: Restitution can be ordered against the party to litigation and his legal representative but it cannot be claimed against a surety and bona-fide auction purchaser. S- 144(2) provides that wher e restitution could be claimed by an application under this section, no separate suit shall be brought for such relief. (ii) Amendment of pleadings: O-6 R17 of the CPC provide for a mendment of pleadings. It says that court may order, at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendment shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The main points to be considered in allowing the amendment are firstly whether the amendment is necessary for determination of real question in controversy and secondly, can the amendment be allowed without injustice to the other side.
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Generally leave to amend is allowed, but in the following cases leave to amend will be refused by the court. (1) Where the amendment is not necessary for the purpose of determining real question in controversy between the parties or where the amendment is merely technical or useless or without any substance. If it introduces a totally different new and inconsistent case or changes the fundamental character of the suit or defence. Where the effect of the proposed amendment is to take away from the other side, a legal right accrued in his favour. Leave to amend may be granted at any stage of the proceedings. However proviso to rule-17 as inserted by the CPC Amendment Act 2002, now restricts the power of court and declares that court should not allow such amendments after the commencement of trial unless it comes to conclusion that in spite of due diligence the matter could not have been raised, by the party, before the commencement of trial. Where an amendment is allowed, such amendment relates back to the date of the suit as originally filed. The court must look to the pleadings as they stand after amendment and leave out of consideration un amended ones. (iii) Interpleader suit: An interpleader suit is a suit in which the real dispute is not between a plaintiff and a defendant, but between the defendants who interplead against each other, unlike in an ordinary suit. The primary object of filing an interpleader suit is to get claims of rival defendants adjudicated. S- 88 and O35 provide the detail provisions about interpleader suit Conditions of Sections- 88 : Before an interpleader suit can be instituted the following conditions must be satisfied:
(2) (3)
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(1) (2) (3)
There must be some debt, some of money or other property movable or immovable in dispute. Two or more persons must be claiming it adversely to one another. The person from whom such debt, money or property is claimed, must not be claiming interest therein other than the charges and costs and he must be ready and willing to pay or deliver it to the rightful claimant and There must be no suit pending wherein the rights of rival claimants can be properly adjudicated. In every interpleader suit, in addition to other statement, the plaint also must state (i) that the plaintiff claims no interest in the subject matter in dispute, other than the charges and costs (ii) the claims have been made by the defendant severally and there is no collusion between the plaintiff and any of defendants. O35 R5 provides that the following two persons cannot file interpleader suit:
(4)
(1) (2)
An agent cannot sue his principal and A tenent cannot sue his landlord for the purpose of compelling them to interplead with persons other than persons claiming through such principal or landlords. (iv) Suits by Indigent persons: O33 provides for filing of suits by indigent person s. It enables persons who are too poor to pay court fees. The provisions of order 33 are intended to enable indigent persons to institute and prosecute suits. This order exempts such person from the paying the court fee at the first instance and allow him to prosecute his suit in forma-pauparies, provided he satisfied certain conditions as laid down in this order.
Conditions: As per O33, R1 A person is an indigent person ( i) if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit or (ii) where no such fee is prescribed, when he is
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not entitled to property worth one thousand rupees. In both cases, the property exempt from attachment in execution of a decree and the subject matter of suit should be excluded. Rule- 14 provides that where an indigent person succeeds in a suit, the state govt. can recover court fee from the party as per direction in the decree and it will be first charge on the subject matter of the suit. Where an indigent person fails in suit, the court fee shall be paid by him. Where the suits abates on account of the death of a plaintiff, such court fee would be recovered from the estate of the deceased. (v) Suits by or against Govt: S- 79 to 82 and O27 lays down procedure where suits are brought by or against the Govt. or public officers. S- 80 CPC declares that no suit shall be instituted against govt. or public officer in respect of any act purporting to be done by such officer in his official capacity, until expiration of two months next after the notice in writing has been delivered or left in the office. (1) (2) (3) (4) (5) In case of suit against Central Govt. except Railway, secretary to the Govt. In case of Railway, to the General Manager of Railway. In case of State of J & K, the chief secretary to that Government or any other officer, authorized by that Govt. in that behalf In case of any other State Govt. to a secretary to that Govt. or the collector of the district and In case of a public officer, such public officer. The primary object underlying section 80 is to afford an opportunity to the govt. or the public officer to consider the legal position and to settle the claim put forward by the perspective plaintiff, if the same appears to be just and proper. The govt. unlike private parties is expected to consider the matter objectively and dispassionately and after obtaining proper legal advice.
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Sub-section (2) of S- 80 provides that in case of urgent relief even without serving notice to the Govt. or public officer, two month before, the suit may be filed with leave of Court. One object is to prevent failure or miscarriage of justice in urgent cases. Q. 15- When additional evidence may be taken in appeal? Ans Section 107 (1) (d) and rules 27 to 29 of order 41 deal with additional evidence. As a general rule, the appellate court shall decide an appeal on the evidence led by the parties, before the trial court and should not admit additional evidence for the purpose of disposal of an appeal. The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. In this regard the courts power is discretionary and should be exercised on sound judicial principles and in the interest of justice. Vide rule 27, appellate court may admit additional evidence in the following circumstances: (i) (ii) Where the lower court has improperly refused to admit evidence, which ought to have been admitted, or Where such additional evidence was not within the knowledge of party or could not after exercise of due diligence be produced by him at the time, when the lower Court passed the decree; or Where the appellate Court itself requires such evidence either (a) to enable it to pronounce judgment or (b) for any other substantial cause
(iii)
Q. 16- When a plaint can be rejected and what will be effect of rejection of plaint? Ans Rejection of plaint: O7 R11 says that a plaint will be rejected in following cases: (i) Where plaint does not disclose cause of action
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(ii) (iii) (iv) (v) (vi)
Where relief claimed is undervalued. Where plaint is in sufficiently stamped Where suit is barred by law Where plaint is not in duplicate Where there is non-compliance with statutory provisions. An order rejecting a plaint is deemed decree U/S- 2(2) CPC, so appealable. Effect of rejection of plaint: O7, R13 says that If the plaint is rejected on any of the above grounds, the plaintiff is not thereby precluded from presenting a fresh plaint in respect of the same cause of action.
Q. 17- When defendant can be arrested before the judgment is pronounced? Ans Arrest before Judgment (O38 R1 to 4) Order 38, Rule 1 to 4 deal with arrest before judgment. It says that where at any stage of the suit, the court is satisfies either by an affidavit or otherwise (a) That the defendant, with intent to delay the plaintiff or to avoid any process of Court, or to obstruct or delay the execution of any decree that may be passed against him (i) has absconded or left the local limits of the jurisdiction of the Court or (ii) is about to abscond or leave the local limits of the jurisdiction of the Court or (iii) has disposed of or removed from the local limits of the jurisdiction of the Court or (iv) has disposed of or removed from the local limits of the jurisdiction of the Court, his property or any part thereof or That the defendant is about to leave India Thus under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may
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(b)
issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance. However the defendant shall not be arrested, if he pays to the officer entrusted with the execution of the warrant any sum specified in warrant as sufficient to satisfy the plaintiffs claim. An application for arrest may be made by the plaintiff at any time after the plaint is presented, even before the service of summons is effected on the defendant. However, before this extra ordinary power can be exercised, the court must be satisfied about the following two conditions: (i) (ii) the plaintiffs suit is bonafide and unimpeachable. his cause of action is primafacie
The court must have reason to believe on adequate materials that unless this extra ordinary power is exercised, there is a real danger that the defendant will remove himself or his property from the ambit of the powers of the court.
Q. 18- When the property of defendant can be attached before judgment is made? Ans Attachment before Judgment Order38, R5 says where at any stage of a suit, the court is satisfied by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him (a) (b) is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court The court may direct the defendant within a time to be fixed by it, either to furnish security of such sum as may be specified in order to produce and place at the disposal of the court, when required, the said property or value of the same or such portion thereof, as may be sufficient to satisfy the decree or to appear or to file show cause why he should not furnish security. Where the defendant fails to show cause why he should not furnish security
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or fails to furnish the security required, within the time fixed by the court, the court may order that the property specified or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit be attached. An attachment practically takes away the power of alienation and such a restriction on the exercise of the undoubted rights of ownership ought not to be imposed upon an individual except upon clear and convincing proof that the order is needed for the protection of plaintiff. Q. 19- What is set off and counter claim. Make distinction between them. Ans (1) Set off (O8 R6): Set off is an extinction of debts of which two persons are reciprocally debtors. O8 R6 gives such right to defendants to claim set off. It obviates the necessity of filing a fresh suit by the defendants. When in a suit for recovery of money, the defendant find that he has also a claim of some amount against the plaintiff, he can claim a set off in respect of the said amount if the following conditions are satisfied: (1) (2) (3) (4) (5) (6) The suit is for the recovery of money. The sum of money is certain. The money is legally recoverable It must be recoverable by the defendant or by all defendants, if more than one. It must be recoverable by the defendant from the plaintiff or from all the plaintiff, if more than one. It must not exceed the pecuniary jurisdiction of the court, in which the suit is brought and Effect of set-off: When a defendant pleads set-off, he is put in the position of a plaintiff as regards the amount claimed by him. There are two suits one by the plaintiff against the defendant and other by the defendant against the plaintiff and they are tried together. Counter Claim (O8 R6A to 6G) Order8, Rule 6A to 6G deal with counter claim made by the defendant in a suit against the plaintiff. It is an independent claim and separable from the
S.K. Shukla 21 Mo: 9899660723 S.S. Law Academy, Civil & judicial B-3/4, B-2-, Ansal Building (Basement); Dr. Mukherjee Nagar, Delhi-09
plaintiffs claim, which can be enforced by a cross action. It is a cause of action is favour of the defendant against the plaintiff. The Court has power to treat the counter claim as a cross suit and hear the original suit and counter claim together if the counter claim is properly stamped. Counter claim may be filed before the defendants has delivered his defence or before the time fixed for his delivery of his defence or before the time fixed for his delivery of his defence has expired, but pecuniary limits of the jurisdiction of the Court cannot be ousted by filing counter claim. Such counter claim has the effect of a cross suit and the court can pronounce a final judgment, both on the original claim and the counter claim. The counter claim of defendant will be treated as a plaint and plaintiff has a right to file a written statement in answer to the counter claim of the defendant. The effect of counter claim is that even if the suit of the plaintiff is stayed, discontinued, dismissed or withdrawn, the counter claim will be decided on its own merit and the defendant will have a right to set a decree for a counter claim as claimed in the written statement. Distinction between set off & Counter claim The following are the main points of distinction between set off and counter claim: Set-off is a statutory defence to a plaintiffs action, where as counter claim is substantially a cross-action. Set off must be for an ascertained sum and it must arise out of same transaction. While a counter claim need not arise out of same transaction. Set-off is a ground of defence to the plaintiffs action, where as counter -claim is a weapon of attack. In a case of a legal set-off, the amount must be recoverable at the date of suit, while in the case of a counter claim, the amount must be recoverable at the date of the written statement. When the defendant demands in a plaintiffs suit is an amount below or up to suit claim, it is a set-off but when it is for a larger amount then claim by the plaintiff, it is a counter claim.
(1) (2) (3) (4)
(5)
Q. 20- Discuss the different types of costs provided under CPC, 1908. Ans
S.K. Shukla
Kinds of Costs
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The Code of Civil Procedure 1908 provides following kinds of Costs : (1) (2) (3) (4) (1) General cost U/S- 35. Compensatory cost U/S- 35A Costs for causing delay U/S- 35B Miscellaneous cost U/O- 20A. General Cost: Section 35 CPC deals with general costs. The object of awarding costs to a litigant is to secure to him the expenses incurred by him in the litigation. It neither enables the successful party to make any profit out of it, nor punishes the opposite party. The cost is at the discretion of the court. However said discretion must be exercised on sound legal principles. Compensatory Costs: Section 35A provides for compensatory costs. This section is an exception to the general rule on which section 35 is based, vizthe costs are only an indemnity and never more than indemnity. This section is intended to deal with those cases in which section 35 does not afford sufficient compensation in the opinion of the Court. Under this provision, if court is satisfied that litigation was inspired by vexations motive and was altogether groundless, it can take deterrent action. This section applies only to suits and not to appeals or to revisions. Cost for Causing Delay: S- 35B empowers the Court to impose compensatory cost on parties who are responsible for causing delay at any stage of litigation. The provisions of this section are mandatory in nature and therefore the court should not allow prosecution of suit or defence , as the case may be, in event of party failing to pay costs as directed by the Court. However, if a party is unable to pay costs, due to circumstances beyond his control, such as strike of advocates or staff or holiday etc, the Court can extend the time. Miscellaneous Cost (O20A): Order 20A makes specific provision with regard to the power of the Court to award costs in respect of certain expenses incurred in giving notices, typing charges, inspection of records, obtaining copies and producing witnesses etc.
(2)
(3)
(4)
S.K. Shukla
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Model Question & Answer for Judicial Service Main Exam On The Code Civil Procedure

(ii) (iii) (iv)

(1) (2) (3)

(ii) (iii) (iv) (v) (vi)

(1) (2) (3) (4)

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