V Term
Paper - LB - 501 – Civil Procedure
Prescribed Legislations: Code of Civil Procedure, 1908 (Amendment) Act, 22 of 2002 Prescribed Books : B. M. Prasad & S. K. Sarvaria, Mulla’s Code of Civil Procedure (17th ed., 2007) PART : ONE – Sections 1 – 158, C.P.C. Topic 1 : Definitions - Decree [section 2(2)], Decree Holder [section 2(3)], Judgment [section 2(9)], Judgment Debtor [section 2(10)], Legal Representative [section 2(11)], Mesne Profits [section 2(12)], Order [section 2(14)] Topic 2 : Jurisdiction of Courts, Principle of Res subjudice and Res judicata (Sections 9 to 14) and Order II, Rules 1 and 2 - Suit to include the whole claim. 1. Gundaji Satwaji Shinde v. Ram Chandra Bhikaji Joshi, AIR 1979 SC 653 2. Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd, AIR 1998 SC 1952 3. Iftikhar Ahmed v. Syed Meharban Ali, AIR 1974 SC 749 4. State of U.P. v. Nawab Hussain, AIR 1977 SC 1680 5. C.A. Balakrishnan v. Commissioner Corporation of Madras, AIR 2003 Mad. 170 6. Bharat Nidhi Ltd. v. Megh Raj Mahajan, AIR 1967 Del. 22 7. Y. Narsimha Rao v. Y Venkata Lakshmi (1991) 2 SCR 821 Topic 3 : Place of Suing (Sections 15 to 21-A) Topic 4 : Power to Transfer Suits (Sections 22 to 25) Topic 5 : Execution of the Decree/Order (Sections 51, 55, 58, 60-62, Order XXI , Rules 96-106) Topic 6 : Suits by or Against Government (Sections 79, 80) Topic 7 : Settlement of Dispute : ADR as a mode of settlement. (Section 89) 8. Ajit Ranjan v. State, 2007 RLR 539 (Del. H.C.) 9. B.P.M. Sevamandir v. A.M. Kutty Hassan, 2009 RLR 123 (SC) Topic 8 : Appeals (i) Appeals from Orders and Decrees, Second Appeal and Power of Appellate Court (Sections 96 to 107) and Production of additional evidence at appellate stage; Order XLI, Rule 27 42 44 1 13 16 20 26 31 34

10. Chunilal V. Mehta v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC1314 11. Koppi Setty v. Ratnam v. Pamarti Venka 2009 RLR 27 (NSC) 12. Gill & Co. v. Bimla Kumari, 1986 RLR 370 13. Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi AIR 1987 SC 294 Topic 9 : Reference – Section 113, Revision Section 115 and review Section 114 read with Order XLVII. 14. Haridas Das v. Smt. Usha Rani Banik, 2006 (3) SCALE 287 Topic 10 - (i) Enlargement of Time (Section 148) (ii) Power to make up deficiency of Court fees (Section 149) (iii) Inherent Powers of Court (Section 151) (iv) Correction of judgements, orders or decrees (Section 152) 15 Mahant Ram Dass v. Mahant Ganga Dass, AIR 1961 S.C. 882 16. Samarendra Nath Sinha v. Krishan Kumar Nag, AIR 1967 SC 1440 17. Dwarka Das v. State of M.P. (1999) 3 SCC 500 PART : TWO – ORDERS I to Ll Topic 11 : Parties to Suits (Order I, Rules 1, 2 and 3) Order I, Rule 10 read with Order XXII, Rule 10 & Interpleader suits Order XXXV Topic 12 : Amendment of Pleadings (Order VI , Rule 17) 18. Jai Jai Ram Manohar Lal v. National Building Material Supply Co., AIR 1969 S.C. 1267 19. M/s Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 20. Dalip Kaur v. Major Singh, AIR 1996 P & H 107 21. B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 Topic 13 : Rejection of Plaint (Order VII, Rule 11) 22. Saleem Bhai v. State of Maharashtra, AIR 2003 SC 759

49 56 57 69


86 89 96

100 104 109 111 114

Topic 14 : Appearance of Parties and Consequences of Non-appearance (Order IX, Rules 6, 7 and 13) 23. Sangram Singh v. Election Tribunal, AIR 1955 SC 425 24. Rajni Kumar v. Suresh Kumar Malhotra, 2003 (3) SCALE 434 25. Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626 Topic 15 : Death of Parties (Order XXII, Rules 1 to 6) 26. N. Khosla v. Rajlakshmi (dead), AIR 2006 SC 1249 Topic 16 : Suits by or Against Minors/Persons of Unsound mind (Order XXXII, Rules 1-15) 27. Ram Chander v. Maharaja Man Singh, AIR 1968 SC 934 Topic 17 : Suits and Appeal as an indigent persons (Order XXXIII read with Order XXXXIV) 28. Union Bank of India v. Khader International Construction (2001) 5 SCC 22 Topic 18 : Summary Procedure (Order XXXVII, Rules 1 to 4) 29. Santosh Kumar v. Bhai Mool Singh, AIR 1958 S.C. 321 30. M/s Mechalec Engineers and Manufacturers v. Basic Equipment Corporation, AIR 1977 SC 577 31. ONGC Ltd. v. State Bank of India, AIR 2000 SC 2548 146 150 153 138 116 127 131

Topic 19: Temporary Injunctions and Interlocutory Orders (Order XXXIX, Rules 1 to5) 32. Monohar Lal v. Seth Hira Lal AIR 1962 SC 527 158 33. Dalpat Kaur v. Prahlad Singh, AIR 1993 SC 276 170 Topic 20 : Amendment to Code of Civil Procedure by Code of Civil Procedure (Amendment) Act (22 of 2002) 34. Salem Advocate Bar Assocn. Tamil Nadu v. Union of India, AIR 2003 SC 189 35. Salem Advocate Bar Assocn. Tamil Nadu v. Union of India, AIR 2005 SC 3353 34. Iridium India Telecom Ltd. v. Motorola Inc. (2005) 2 SCC 145

173 179 223

IMPORTANT NOTE : 1. The topics and cases given above are not exhaustive. The teachers teaching the course shall be at liberty to add new topics/cases. 2. The students are required to study the legislations as amended up to date and also to consider and correlate amendments mentioned in Topic 20 and cases under this Topic with other topics and cases. 3. The question paper shall include one compulsory question. The question papers set for the examinations held during 2007-08 and 2008-09 are printed below for guidance of the students. *****

LL.B. V Term Examinations, December, 2007 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Difference between Judgement and Decree; (b) Grounds for review; (c) Are courts functus officio for extending time for payment of the court fee when it is already over? (d) Essential requirements of res judicata between the co-defendants. (e) Law relating to additional evidence in appeal. 2. Court, in a suit for specific performance of the agreement of sale of agricultural land by A to B, is to decide an incidental issue ‘Whether B is a farmer or not’, which is triable by Mamlatdar - an authority under a Local Revenue Act of a particular state when the suit is filed. Decide the objection of A, defendant seller against plaintiff purchaser that ‘Plaintiff is not a farmer and same is exclusively to be decided by revenue court’. Discuss with reference to section 9 CPC. 3. Discuss the law regarding the consequences of non-appearance of a defendant in a suit without filling written statement and after filling of the written statement. Can he join the subsequent proceedings in the suit? Support your view with case law, regarding the rights of defendant to take part in subsequent proceedings.

4. Comment upon the following with relevant case law: (a) Scope of amendment of plaint and title of suit particularly the effect of amendment for the purpose of limitation. (b) Rejection of plaint and relevant consideration for the same. 5. Support the answer to following with case law: (a) State briefly the law to proceed with a suit when the plaintiff or defendant dies. State its consequences too. (b) A decree passed against a minor or a person of unsound mind with the appointment of his Guardian. 6. Discuss with case law the powers of appellate courts and substantial question of law in Second Appeal. 7. Discuss the following legal aspects with the help of case law:

(a) What is the scope and life of a temporary injunction (b) Consequences of disobedience of a temporary injunction granted by a court in a suit or proceedings u/s 39 CPC. What are safeguards for other party under the provisions of law and remedy for vacation of ad-interim ex parte injunction obtained on insuffcient grounds and by suppression of material facts. 8. Comment upon the following with the help of case law: (a) Use of inherent power of the courts and its scope and limitations used in the exercise of inherent powers by the courts. (b) Provisions of procedural law contained in C.P.C. are to serve as servant in administration of justice and cannot be masters to defeat the substantial rights of parties to litigation. ***** LL.B. V Term (Supplementary) Examinations, May-June, 2008 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Grounds for rejection of plaint; (b) Difference between judgment and decree; (c) Interpleader suit; (d) Mesne profit; (e) Grounds for review. 2. ‘A’ sues ‘B’ for possession of property claiming himself to be the owner of the property. The suit is dismissed. ‘A’ files another suit against ‘B’ now claiming possession of the same property as a mortagagee. ‘B’ takes preliminary objection about the maintainability of the subsequent suit on the ground of res judicata. Discuss with the help of relevant cases, whether ‘B’ will succeed. 3. “The object of the courts is do decide the rights of the parties and not to punish them for the mistakes they make in the conduct of their cases. There is no mistake which, if not fraudulent, the court ought not to correct, if it can be done without causing injustice to the other party”. Discuss the law with regard to amendment of pleadings in the light of above statement. Also discuss the considerations, which should be kept in mind by the courts in dealing with applications for amendment of pleadings. 4. On the date fixed for the defendant to file his written statement, the defendant, despite service of summons upon him fails to appear before the court. Consequently, the court

proceeds ex-parte against the defendant, strikes off defendant’s right to file written statement and adjourns the case for filing of evidence by the plaintiff for the next date of hearing. Discuss, whether on next date of hearing the defendant can without getting the last order set aside: (a) file his written statement; (b) cross examine the plaintiff. 5. What are the principles for grant of ex-parte ad-interim injunction? What safeguards are available to the other party if such injunction is obtained on insufficient grounds and/or by suppression of material facts? 6. Differentiate between an ordinary suit and a summary suit. State the objective behind the provision for Summary Suits in the Civil Procedure Code. Also state the procedure for appearance of defendant and for filing of leave to defend under a summary suit. 7. (a) Explain with the help of decided cases the term “substantial question of law” as used in section 100 of Civil Procedure Code. (b) Under what circumstances can the parties be allowed to produce additional evidence in the appellate court. 8. What do you understand by the term “inherent power of the court”. Discuss its scope and extent with the help of decided cases. Can a court grant an injunction in exercise of its inherent power? *****

LL.B. V Term Examinations, December, 2008 Note: Answer five question including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following (a) What is a decree? (b) Power of the Supreme Court to transfer suits, etc. u/s 25 of C.P.C. (c) Are following liable to any extent to attachment and sale in execution of a decree? (i) a mere right to use for damages; (ii) salary of the judgement debtor. (d) Notice u/s 80 C.P.C. (e) Inherent powers of the court.

2. (a) A provision inserted by an amendment in the Bombay Tenancy and Agricultural Lands Act 1948, provides that the issue whether a person in an agriculturist or not is to be decided by the competent authority created under the Act. However, a Civil Court decides the above issue on the basis that it has jurisdiction to decide any incidental or residuary issue in a suit which it is competent to decide. An appeal is filed in the respective High Court against the said exercise of jurisdiction by the Civil Court. Decide in the light of relevant provisions of C.P.C. and the case law. (b) Is the bar to proceed with the trial of subsequently instituted suit, contained in the section 10 of the C.P.C. 1908, applicable to summary suit filed under Order 37 of C.P.C.? Give reasons and cite the case law. 3. (a) What are the conditions which must be satisfied for an adjudication to operate as res judicata between co-defendants? Do these conditions apply for res judicata between co-plaintiffs as well? (b) An A.S.I. was dismissed from service by the D.I.G. He challenged the said decisions by filing a writ petition in the High Court on the ground that he was not afforded a reasonable opportunity. The writ petition was dismissed. He then filed a civil suit and raised an additional plea that he was appointed by the I.G.P. and therefore D.I.G. being lower in rank, was not competent to pass an order against him. In this civil suit, contention of State is that the suit was barred by res judicata. Decide. 4. (a) What considerations the civil courts generally keep in mind while permitting amendment of the pleading? (b) What is meant by ‘substantial question of law’ in the context of second appeal from a decree. 5. (a) Write a short note on review of the judgement. (b) What do you understand from Order 2, Rule 2 of C.P.C. Distinguish it from the doctrine of res judicata. 6. (a) “An application under Order 7, Rule 11, C.P.C. ought to be decided on the allegations in the plaint and filing of written statement by the contesting defendant is irrelevant and unnecessary.” Discuss. (b) On what grounds can a civil court set aside ex parte decree against defendants under Order 9 of the C.P.C.? 7. (a) Write salient features of ‘Summary Procedure’ as contained in Order 37, C.P.C. (b) What do you understand by the term ‘triable issue’ in the context of the above order. 8. (a) Write a summary of the considerations, a judge will keep in mind while granting a temporary injunction under Order 39, R 1 and 2 of the C.P.C.

(b) What are the consequences of disobedience or break of injunction granted under Order 39, CPC? ***** LL.B. V Term (Supplementary) Examinations, May-June, 2009 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Interpleader suits; (b) Distinguish between decree and order; (c) Grounds of rejection of plaint; (d) Suits by or against government; (e) Summary procedure. 2. (a) What should a court do when plaintiff is present and the defendant is absent? What remedies are available to defendant is such cases? When can an ex-parte decree be passed and when it can be set-aside? (b) What are the consequences of plaintiff’s failure to appear when the defendant is present? What remedy is available to the plaintiff? 3. (a) ‘A’ filed a suit against ‘B’ to recover possession of certain immovable property on the basis of heirship. The suit was dismissed. Can ‘A’ file another suit on the basis of a ‘will’ in his favour? Give the reasons and legal provisions for your answer. (b) In a suit between ‘A’ and ‘B’ a decree is passed that house ‘Y’ belongs to ‘A’, ‘C’ files a suit against ‘A’ for getting house ‘Y’ on the ground that he is the owner of this house. ‘A’ takes the defence that there is already a declaratory decree that house ‘Y’ belongs to him. What decision shall be given by the court? 4. (a) What errors in a judgement, decree or order can be corrected by the court after signing and pronouncing the same without there being an application made for review? (b) Discuss the provisions relating to production of additional evidence in appellate court. Is it permissible at the second appellate stage? 5. Discuss the provisions of CPC relating to inherent powers of the court, power to make up deficiency of court fee and enlargement of time with the help of judicial pronouncements. 6. (a) When can a temporary injunction be granted by a civil court?

(b) Can a court allow amendment of a plaint just before pronouncement of decree judgement? Critically examine the scope and stage of amendment of pleadings with the help of decided cases. 7. State the provisions which govern the determination of place of suing and answer the following questions? (a) ‘X’ residing in Lucknow publishes statement defamatory of ‘Y’ in Faizabad. At what place ‘Y’ may sue ‘X’? Advise. (b) ‘A’, ‘B’ and ‘C’ jointly took a loan from ‘D’ at Varanasi on a promissory note. ‘D’ lives in Lucknow, ‘A’, ‘B’ and ‘C’ reside in Faizabad, Varanasi and Kanpur, respectively. Determine the place of suing. (c) Certain immovable property of ‘A’ falls within the jurisdictions of Dehradun court as well as that of Haridwar. ‘A’ files a suit regarding them in Haridwar court, which is dismissed on the ground that larger portion of the said property is situated within the jurisdiction of Dehradun Court and only a very small portion of the same falls within the jurisdiction of Haridwar courts. Assess the judgement legally. 8. (a) Discuss the law relating to continuance of a suit when the plaintiff or defendant dies. State its consequences with case law. (b) Based on the study of case law and on your own understanding propose/suggest major amendments required in CPC which can help in speedy disposal of the civil suits.

LL.B. V Term

Civil Procedure

Cases Selected and Edited by
P.S. Vats Praveen Kumar Singh

July, 2009

Sign up to vote on this title
UsefulNot useful