MODULE 2

The Doctrine of Part Performance( Section 53-A Transfer of

property Act)

Doctrine of Part Performance is an equitable doctrine and it is incorporated to

prevent fraud and from taking illegal advantage on account of non-registration
of the document. This Doctrine is based on the maxim, Equity look at as it is
done which ought to have been done.
the doctrine says that the transferor or any person claiming under him shall be
debarred from enforcing against the transferee and the person claiming under
him any right in respect of the property of which the transferee has taken or
continued in possession, other than a right expressly provided by the term of
the contract.

Illustration:
A contract to transfer his immovable property to B by way of sale and put B in
possession of the property before a regular Sale-Deed is executed. The
contract is said to be partly performed and if later on A refuses to execute
regular document of sale and files a suit for eviction against B treating B as
trespasser. Then B can resist A’s claim on the ground that the contract of
transfer in his favour has partly been performed and that A should not be
allowed to go back upon his own word.

Ingredients of Section 53-A

Bombay High Court in Kamalabai Laxman Pathak v. Onkar Parsharam Patil[1],
has given emphasis on the ingredients of the Section 53-A which are as follows:

1. Contract for Transfer of immovable property:

For the application of this section, the first condition is that there must be a
contract and the contract must be transfer of immovable property for value.
a) Written contract:
The contract must be written. Section 53 A is not applicable if the contract for
transfer is oral. In V.R. Sudhakara Rao v. T.V. Kameswari[2], it was held that the
benefit of section 53-A is not available to a person who is in possession of
property based on oral agreement of sale. Writing alone is not sufficient. The
contract must also be duly executed. That is to say, it should be signed by the
transferor or by any other person on his behalf.

b) Valid Contract:
It may be noted that Section 53-A is applicable only where contract for the
transfer is valid in all respects. It must be an agreement enforceable by law
under the Indian Contract Act, 1872.

c) Immovable property:
This section is applicable only in case of transfer of immovable property. It
does not apply to an agreement for the transfer of movable property even
though supported with consideration. The defense of Part Performance is not
available in respect of possession of movables (Hameed v. Jayabharat Credit &
Investment Co. Ltd and Ors.[3])

2. Transfer for consideration:

The written contract must be for the transfer of an immovable property for
consideration. The written contract on the basis of which the property has
been possessed, must clearly suggest the transfer of property. If the document
is ambiguous or confusing, this section cannot be made applicable. It is one of
the necessary ingredients of section 53-A that the terms of written contract
must be ascertainable with reasonable certainty (Hamida v. Humer and Ors.
[4]).

3. Possession in furtherance of Contract:

The Transferee has taken possession or continues possession in part
performance of the contract or, has done some act in furtherance of the
contract (A.M.A Sultan (deceased by LRs) and Ors. v. Seydu Zohra Beevi[5]).

4. Some Act in furtherance of the contract:

Taking possession is not only the method of part performance of contract. If
the transferee is already in possession of the property then, after the contract
of transfer, he has to do some further act in part performance of the contract
(Nathulal v. Phoolchand[6]).

5. Transferee is willing to perform his part of contract:

Section 53-A is based on the principle of Equity. Equity says that one who seeks
equity must do equity. Therefore, where a person claims protection of his
possession over a land under section 53-A, his own conduct must be equitable
and just. It is an essential condition for the applicability of this section that the
transferee must be willing to perform his part of contract (Sardar Govindrao
Mahadik and Anr. vs. Devi Sahai and Ors Govind[7])

Scope of Doctrine of Part Performance

The Doctrine of Part Performance is applicable to only written and valid
contract. It is not applicable to oral or void agreement. The contract must be in
writing and signed by the transferor. The transferee has taken possession of
the property as a part performance of a contract and transferee must be ready
and willing to perform his part of promise. This section is applicable not only to
the contract of sale but it is applicable to all such contracts of transfer for
consideration. It has been held in (Jacobs Private Limited vs. Thomas Jacob [8])
that the doctrine is intended to be used as a shield, not a sword.

That by virtue of the amendment brought about to Section 53-A of the TPA
with effect from 24.09.2001 by the Act 48 of 2001, an Agreement to Sell in
the nature of part performance cannot create rights unless the agreement is
registered and stamped at 90 percent of the duty as of the sale deed as per
Article 23-A of the Schedule I of the Indian Stamp Act, 1899 as applicable to
Delhi which was accordingly amended by the Act 48 of 2001.

Suit For Specific Performance of Contract in India

 Specific performance is a remedy developed by principle of equity. A party to a
contract who is damaged because the contract is breached by another party
has the option to file a suit for specific performance compelling to perform his
part of contract. Before an equity court will compel specific performance,
however, the contract must be one which can be specifically performed.
Section 16 (c) of the Act envisages that plaintiff must plead and prove that he
had performed or has always been ready and willing to perform the essential
terms of the contract which are to be performed by him, other than those
terms the performance of which has been prevented or waived by the
defendant.

The courts grants the relief of specific performance in the following

situations-

1. If the compensation to be awarded cannot be determined. Remedy of

specific performance is awarded in cases where it is impossible to fix
compensation. In this case, the court directs the defendant to perform his
promise as agreement as agreed at the time of making the contract.

2. Remedy of specific performance is awarded when there is no substitute or

alternate for the subject matter of the contract.

3. Remedy of specific performance is awarded in case of goods, the value of

which cannot be easily ascertained and the goods have a unique character.
For example, buildings, land or goods having special value for the plaintiff.

4. Remedy of specific performance is awarded at the sole discretion of the

court

There are certain circumstances when this remedy cannot be awarded. For
instance, when the specific performance is impossible, when the contract is
too vague to be enforced, when the element of ad-idem-consensus is
missing, the contract was made for no consideration, when the contract is
void or unenforceable etc.

MONEY SUIT(SUIT FOR RECOVERY OF MONEY)

A Suit for recovery of money is a civil remedy and acts as an effective tool
to recover money from the defaulter. The suit can be established
under Order IV of the Code of Civil Procedure 1908 (CPC). It is generally
like a summary suit (Order 37, Code of Civil Procedure) which offers
expeditious disposal of the suit as here the defendant is not entitled to
defend as a matter of right but only after applying for leave of the court, he
can defend.

Jurisdiction
According to Order IV of the Code of Civil Procedure 1908 (CPC), a suit can
be filed at any place where the Defendant resides; or any place where the
defendant carries on business or personally works for gain; or the cause of
action wholly or partly arises.

Pecuniary jurisdiction is determined after considering the territorial

jurisdiction. Based on the pecuniary value of the suit, it is decided whether
the suit will be filed either in the district court or in the high court.

Competent parties
Companies, partnership firms, proprietorship firms, and traders, etc., are
competent to file a suit for recovery of their unpaid bills or Business
outstanding amount or payment where there is any written
contract/agreement between the parties.

Limitation period
The time period for filing a civil recovery claim in India is limited to three
years from the date of cause of action has arisen. The suit exceeding the
period of limitation will not be taken into consideration. If the suit is
instituted after the expiry of the limitation period, the grounds for claiming
the exemption must be stated.
 Documents required
Any document verifying the grant of money from a person to the defaulter
is enough to prove the debt. To file a suit to recover a debt or request a
liquidator of the funds paid to the defendant, with or without interest,
arising from a written contract, or In the case of enactment, if the amount
to be recovered is a fixed amount of money or like the debt other than the
penalty, or on a guarantee, if the claim against the Director relates only to a
debt or a liquidator’s request.

If the contract or agreement is not in writing, a simple

civil action will be filed based on the truths and
circumstances of the cases.
Bank account transactions, promissory notes, a contract or other payments
so made serve as legal evidence of the lending of such money. Also, Any
document, contract, message, telephonic conversation, mail, or post can
serve as proper evidence in the Court of law to prove your debt.

Institution of suits under order IV of CPC

Every suit is instituted by way of a plaint. A plaint is the description of facts
of the case and the exact amount being claimed along with interest if any.
In every such plaint, the facts are to be proved by an affidavit.

A suit is instituted when the plaint is presented, and

not when the suit is registered.
A plaint must contain the following particulars:

1. Name of the court

2. Name, description, and place of residence of the plaintiff
3. Name, description, and place of residence of the defendant
4. Facts constituting the cause of action, when it arose
5. Facts showing that the court has jurisdiction
6. The relief the plaintiff claims; the plaintiff’s costs (Prayer clause)
7. Any set-off or relinquishment of his claim by the plaintiff
8. Value of the subject matter of the suit for the purposes of jurisdiction and
court fees
9. Signature and verification

Court fees
As per the schedule, the court fee is required to be paid by the Plaintiff. A
suit shall not be accepted in case the same is not filed along with the court
fee.

Execution of a Decree
The next step when a person obtains a decree from a court of law against
another person, he is to get the decree satisfied. Execution proceedings are
the processes by which a person moves to the court for the satisfaction of
the decree. Execution is the enforcement of an order or giving effect to the
judgment of the court. The execution comes to an end when the judgment-
creditor or decree-holder gets cash or other thing granted to him by
judgment, decree, or order.

Suit for Damages

A contract is a legal promise to perform certain obligations. When a
party breaks a promise, then the other parties to the contract might
suffer losses due to non-performance of the obligation. The Indian
Contract Act, 1872, has laid down some specific rules for filing a suit
for damages in such cases. In this article, we will look at the various
types of damages and the different scenarios under which a party can
file a suit for compensation.

Types of Damages
Sections 73-75 of the Indian Contract Act, 1872, define remedy by
way of damages as the entitlement of the suffering party to recover
compensation for losses suffered due to non-performance of the
contract. The damages can be of the following types:

1] Ordinary damages

On the breach of a contract, the suffering party may incur some

damages arising naturally, in the usual course of events. Even if the
suffering party knew about the likely damages if the contract was
breached, he can claim compensation for such losses.

Peter agrees to sell and deliver 10 bags of potatoes to John for Rs

5,000 after two months. On the date of delivery, the price of potatoes
increases and Peter refuses to perform his promise.
John purchases 10 bags of potatoes for Rs 5,500. He can receive Rs
500 from Peter as ordinary damages arising directly from the breach.

2] Special Damages

A party to a contract might receive a notice of special circumstances

affecting the contract. In such cases, if he breaches the contract, then
he is liable for the ordinary damages plus the special damages.

Peter hired the services of John, a goods transporter, to deliver a

machine to his factory urgently. He also informed John that
his business has stopped for want of the machine. However, John
delayed the delivery of the machine by an unreasonable amount of
time. Peter missed out on a huge order since he didn’t have the
machine with him.

In this case, Peter can claim compensation from John. The

compensation amount will include the amount of profit he could have
made by running his factory during the period of delay. However, he
cannot claim the profits that he would have made if he got the
contract since John was not made aware of the same.

3] Vindictive or Exemplary /punitive Damages

There are two scenarios for awarding vindictive or exemplary
damages:

 Breach of a promise to marry because it causes injury to his/her

feelings
 Wrongful dishonour of cheque by a banker because it causes loss
of reputation and credibility.
In case of a wrongful dishonour of cheque from a businessman, the
compensation will include exemplary damages even if he has not
suffered any financial loss. However, a non-trader is not awarded
heavy compensation unless the damages are alleged and proved as
special damages.

Example: Peter is a farmer. He issues a cheque for procuring seeds

for his next crop. He has sufficient funds in his account but the bank
erroneously dishonours the cheque. Peter files a suit claiming
compensation for damages to his reputation. The Court awards a
nominal amount as damages since Peter is not a trader.

4] Nominal Damages

If a party to a contract files a suit for losses but proves that while
there has been a breach of contract, he has not suffered any real
losses, then compensation for nominal damages is awarded. This is
done to establish the right to a decree for a breach of contract. Also,
the amount can be as low as Re 1.

5] Damages for Deterioration caused by Delay

In cases where goods are being transported by a carrier and he delays

the delivery of goods causing them to deteriorate, the affected party
can file a suit for damages for deterioration by the delay.
Deterioration can mean physical damage to the goods and/or loss of a
special opportunity for sale.
6] Pre-fixed damages

During the formation of a contract, the parties might stipulate

payment of a certain amount as compensation upon the breach of the
contract. This amount can be a reasonable estimate of the likely loss
in case of a breach or a penalty.

Under Section 74 of the Indian Contract Act, 1872, it is specified that

if an amount is mentioned in a contract as the sum to be paid in case
of a breach, then the suffering party is entitled to reasonable
compensation, not exceeding the amount specified.

Restitution of Conjugal Rights and by what law is it

governed by?
By a bare reading of the phrase, even a layman can understand that it means
“the restoration of the marital rights”. But before diving into what the law
means, it is important to know what a Conjugal Right essentially is. Under
Hindu Law, marriage is considered as the most sacred ceremony. The ceremony
of Saptapadi in a Hindu marriage imposes certain rights and duties upon both
the husband and the wife that they have against each other. These rights and
duties which are binding upon both the spouses under Hindu law are termed as
Conjugal or Marital rights. Certain important conjugal rights imposed on the
spouses are to reside as Husband and Wife under the same roof, Procreation,
raising a family etc.

Provisions for restitution of Conjugal Rights under Hindu Marriage Act,

1955 and Special Marriage Act, 1954

Provision for restitution of Conjugal Rights under the Hindu Marriage Act,
1955 is given under S. 9 whereas under the Special Marriage Act, 1954 it is
given under Section 22. The provisions read identically and are as follows –

When either of the spouses has, withdrawn from the society of the other without
a reasonable reason, the aggrieved party may file a suit to the district court, for
restitution of conjugal rights. The court, on being satisfied with the petitioner’s
arguments in the petition and after confirmation that there is no legal embargo
on such claim can decree restitution of conjugal rights.

in Saroj Rani v. Sudarshan Kumar Chadha[i], Hon’ble Supreme Court while

validating the constitutionality of Section 9 of the Hindu Marriage Act dealing
with restitution observed that in cases of restitution of conjugal rights the
respondent spouse (here the husband) becomes liable as per court’s order should
cohabit with the aggrieved petitioner and fulfil his marital obligations.

Essentials to file a suit for Restitution of Conjugal Rights

As we have dealt with provisions related to restitution under different laws
certain essentials could be concurred for filing a suit for the same. The essential
conditions for filing a suit for restitution of conjugal rights are as follows –

1. That the respondent has withdrawn from the petitioner’s society.

2. That the withdrawal neither has a reasonable reason nor is legal.

3. That there was no other legal ground for the refusal of relief.

4. That the court is satisfied with the petitioner’s arguments.

Maintenance of Hindu wife under Section

125 of the Code of Criminal Procedure
As per Section 125 of the Code of Criminal Procedure, only a woman either
take divorce or given divorce by her husband and who hasn’t remarried any
other man is entitled to get maintenance. A married woman who refuses to
live with her husband because her husband is liable for desertion or liable for
cruelty or is suffering from leprosy or liable for bigamy or convert his religion
without the consent of the wife can claim a special allowance under this Act.

In D.Velusamy vs D.Patchaiammal
The wife filed a suit against husband demanding the maintenance as per
Section 125 of the Code of Criminal Procedure. Here the court provides the
Maintenance to the wife.

Under Section 125 of the Code of Criminal Procedure the person has to
maintain:

1. His Wife, who unable to maintain herself.

2. His Legitimate or illegitimate minor child whether married or not
married, who unable to maintain itself.
3. His father and mother, who unable to maintain themselves.

In Gomaji vs Smt. Yashoda

In this case, the petitioner is the Husband and the Respondent is the wife.
The Husband filed a case under Section 13 of the Hindu Marriage Act seeking
a divorce from his wife. And the Respondent filed an application under
Section 125 of Code of Criminal Procedure claiming Maintenance. Here the
court accepts the divorce and passed the order against Husband to give
monthly Maintenance to his wife.

Format of Petition for Decree of Divorce under

Section 13(1)(ia) to get divorce when the Petitioner
was treated with Cruelty by the Respondent.
IN THE COURT OF THE _____________ JUDGE AT _________

MATRIMONIAL CASE NO. __________ OF 20__

IN THE MATTER OF:

MRS. WI_________
PETITIONER

VERSUS

MR.

HU __________
RESPONDENT

PETITION FOR DECREE OF DIVORCE UNDER SECTION 13(1)

(ia) OF HINDU MARRIAGE ACT, 1955

MOST RESPECTFULLY SHOWETH:

The Petitioner, above named states as under:

1. That marriage of the Petitioner and the Respondent was

solemnized on __________ at ____________ according to Hindu
rites and ceremonies. The marriage was registered with the
Registrar of marriages at ___________. Certified copy of the
extract from the concerned register is attached herewith
as Annexure P-1.

2. That the status and place of residence of the Parties to the

marriage before the marriage and at the time of filing this petition is
given as under:

i) Place of residence before the Marriage

ii) Place of residence at the time of filing the Petition

3. That from the the marriage ______ couple has been blessed with
one boy aged 3 years.

4. That the Petitioner and his wife were living together happily at
the matrimonial house. That on _______ husband of the Petitioner
has expelled the Petitioner after merciless beatings, when she
questioned him about his drunken nature and misusing of money for
drinking liquor with his friends.

5. The Petition has not in any manner necessary to or condoned the

acts complained of or connived at, but the Respondent is treating
the Petitioner with cruelty after immediately after two weeks of
solemnization of the marriage.

6. The Petition is not being presented in collusion with the

respondent.

7. The Petition is being presented without any unnecessary or

improper delay on the part of the Petitioner.

8. There is no other legal ground as to why the decree prayed for

should be not granted in favour of the Petitioner.

9. That no litigation has taken place between the parties to the

Petition earlier.

9. This Hon'ble Court has jurisdiction to entertain and try this

Petition as the marriage was solemnized at ____________ the
parties last resided together at _____________ and even presently
the respondent is residing within the Jurisdiction of this Hon'ble
Court.

10. In the facts and circumstances of case mentioned herein above

this Hon'ble Court may graciously be pleased to:

PRAYER
That the Petitioner, therefore, prays:

a) for grant of decree of Divorce in favour of Petitioner and against

the Respondent; and

b) Any other relief or reliefs which the court may deem proper under
the circumstances be also awarded to the petitioner.

PETITIONER

THROUGH

______________., Advocate

A Suit for Recovery of Possession and

Arrears of Rent

IN THE COURT OF THE SMALL CAUSES JUDGE,................. AT.................

Civil Suit No. _/ 200_Smt _M_V_D_)

age...... years, occupation................) PlaintiffAddress........................................................)

Versus

Shri _V_M__L_)

age...... years, occupation -................) Defendant

Addreess.....................................................)

A SUIT FOR RECOVERY OF POSSESSION AND ARREARS OF RENT

The plaintiff above named submits this plaint, praying to state as follows:

1. Description of Suit Property: All that piece and parcel of premises consisting of three rooms
along with attached sanitary block totally admeasuring.......... sft situate on the ground floor in
the old building standing at CTS No...........of Rasta Peth,................. City.

2. That the property fully described in para 1 above is owned by the present plaintiff, and the
defendant is a monthly tenant therein.

3. That the month of tenancy is according to the English calendar, commencing on the first day
in a month and ending on the last day of the same month.
4. That the monthly rent for the suit premises is @ Rs........../- exclusive of all other charges and
taxes.

5. That the defendant was irregular in making the payment of the rent from the beginning, and
on that account, the plaintiff had previously filed a civil suit against the defendant for
possession in the Small Causes Court,................., and eventually the said suit came to be
compromised. In that suit, the defendant had given in writing an undertaking that he would
be paying the rent regularly, i.e. month to month basis.

6. That irrespective of that, the defendant is irregular in the payment of rent and is in the habit
of paying the rent occasionally and pays the rent for a period of........ months or sometimes
even 8/9 months also. Thus, the defendant has become a defaulter in the payment of rent, as
he failed to observe the terms and conditions of the compromise arrived at by and between
the parties in the previous civil suit No. 420/1996.

7. That the defendant is occupying the suit premises for the last thirty years, and from the
beginning, he using the suit premises in such a fashion so as to cause damage and waste to
the said property. Of the late, the defendant has demolished the wall between the two
rooms, and he has fixed a door. He has also demolished another wall and fixed a window
therein. While doing so, he has not obtained any permission of the plaintiff. Thus, the act of...

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What is Interpleader Suit?

INTRODUCTION
Not every suit which is civil in nature follows the same course of trial and
proceeding. A few civil cases do not follow the regular course and are
comparatively different in nature in terms of the parties and their
involvement in the suit. One such kind of suit is the interpleader suit.
Interpleader suits are very different from the ordinary suits that are filed
before the Hon’ble Court between two parties, the plaintiff and the
defendant. The dispute in such suits is instead between two defendants who
fight for a claim over a particular good, debt, or chattel.[1] The plaintiffs in
such suits usually do not have any real interest in the subject matter of the
suit and institute the suit to only make sure that the property in dispute is
put in the custody of the actual owner.
Examples

1. Sanjeev has a 2 BHK flat in the co-operative colony. He has two

wives. Because of some diseases, he caused to die. After his death,
his wives claimed the property. The father of Sanjeev filed a suit in
the court to decide the actual owner of the property.
2. Akhil has 2 crores fix deposit. He has two wives and both wives
have 1 child. Both of them claim the money for their child
maintenance. The bank filed a suit in the court to know the order
related to the real owner of the money for the maintenance of the
child.

Malicious Prosecution under

Law of Tort
“A judicial proceeding instituted by one person against another,
from wrongful or improper motive and without probable cause
to sustain it is a malicious prosecution.”

ESSENTIAL ELEMENTS OF MALICIOUS

PROSECUTION
Following are the essential elements which the plaintiff is required to prove in
a suit for damages for malicious prosecution:-

 Prosecution by the defendant.

 Absence of reasonable and probable cause.
 Defendant acted maliciously.
 Termination of proceedings in the favour of the plaintiff.
  Plaintiff suffered damage as a result of the prosecution.

Format of Criminal Complaint u/s 138

of Negotiable Instruments Act against
return of cheque.
IN THE COURT OF _____________________________

COMPLAINT NO ___________ OF____

IN THE MATTER OF:

Mr.____________________
COMPLAINANT

VERSUS

Mr. _______________
ACCUSED

POLICE STATION:____________

COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE

INSTRUMENTS ACT, 1881 (AS AMENDED UPTO DATE) FOR
THE SUM OF RS. ______________ (RUPEES
________________ ONLY)

MOST RESPECTFULLY SHOWETH:

1. That the Complainant is working as

_________________________ and is residing at
______________________________________
2. That the present complaint is being field by the complainant
Mr.___________________ to cause appearance in this
Hon'ble Court and to depose and conduct the proceedings.
3. That on _______________ the accused namely Mr.
______________ had approached the complainant personally
and asked for a friendly loan of Rs. ________________.
4. That on __________ complainant paid Rs. ___________
(Rupees _____________ as friendly loan repayable on
demand.
5. That towards payment of amount of loan the accused issued
Cheque No. ______________ Dated ____________for Rs.
___________to the complainant. That in order to discharge
their above said liability and in accordance with the agreed
terms and conditions, the accused had issued Cheque No.
_____________ Dated ___________for Rs. ___________/-
drawn on ___________________. The said cheque was issued
from Account No. ____________________which is held in the
name of the accused. That the present complaint is based on
the dishonor of the above said cheque which was issued in
discharge of a lawful debt.
6. That at the time of handing over the above said cheque the
accused had assured the complainant that the said cheque will
be honored/encashed on presentation. Taking the above
assurance/representation as true, the complainant had
accepted the above said cheque.
That on the basis of the assurances given by the accused, the
complainant presented the above said cheque with its bankers
namely ___________________________________ and was
dishonored vide cheque return advice dated _____ issued by
the complainants bank. The aforesaid cheque was returned
unpaid vide returning memo dated ____________with the
remarks "FUNDS INSUFFICIENT".
7. That the dishonor of the cheque clearly shows and establishes
that the accused did not intend to honor the amount under the
said cheque.
8. That on account of the dishonor of the said cheque, the
complainant had served a legal notice dated
____________upon the Accused by way of Registered Post
vide Receipt No. _________________ dated
___________However, despite service of notice, the accused
has not taken any steps to liquidate his liability and has failed
to make balance payments to the complainant towards the
amount covered under the said cheque, within the statutory
period of 15 days or thereafter. Thus, the Accused has,
therefore committed an offence within the meaning of Section
138 and other sections of the amended provisions of the
Negotiable Instruments Act, 1881, for which he is liable to be
prosecuted and punished.

That the accused have failed to make payment against the

said cheque which has been done by them malafidely,
intentionally and deliberately and knowingly. That at the time
of issuing the said cheques the accused were fully aware that
the said cheques will not be honored on presentation.
Therefore, the accused has dishonestly induced the
complainant to advance a sum of _________________ /-
(Rupees __________________ Only) fully knowing that he
cannot repay the said amount to the complainant.
9. That the accused is guilty offence under Section 138,
Negotiable Instruments Act and is also liable to be prosecuted
under Section 420 of the Indian Penal Code.
 10. That in view of the facts and circumstances, the
complainant has a cause of action and right to file the present
complaint. The cause of actions has arisen in favour of the
complainant when, on the expiry of the notice period, the
Accused has not come forward to pay the amount relating to
the dishonored cheques. The cause of action is still subsisting
and continuing in nature.
11. That the cause of action has arisen at __________ as the
cheques was issued at _________, and the same was payable
at __________ and was also dishonored at _________.
Therefore this Hon'ble Court has jurisdiction to try and
adjudicate upon the present complaint.
12. That the complaint is well within limitation period
prescribed under the Act:
i. Date of Dishonor ______
ii. Date of Notice ______
iii. Date of filing Complaint _______
13. That a list of documents and list of witnesses are
annexed with this complaint.

PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court
may be pleased to:

a. Summon, prosecute and punish the Accused and also direct

the accused to pay the amount as double to the amount
covered under the said dishonored cheques, under the
provisions of Section 138 read with Section 142 of the
Negotiable Instruments Act,1881 as amended by the
 Negotiable Instrument laws (Amended and Miscellaneous
Provisions) Act, 2002. In accordance with Section 357 of Code
of Criminal Procedure 1974, out of the penalty imposed, the
Accused be ordered to compensate the Complainant to the
extent of Rs._______ /- (Rupees ______________ Only) and
b. Such other and further orders may be passed as may be
deemed fit and proper by this Hon'ble Court.

It is prayed accordingly.

PLACE:

Meaning of appeal
The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law
Dictionary, while construing the concept of ‘appeal’ in its most original and
natural sense, explains it as “the complaint to a superior court for an
injustice done or error committed by an inferior one, whose judgment or
decision the Court above is called upon to correct or reverse. It is the
removal of a cause from a Court of inferior jurisdiction to one of superior
jurisdiction, for the purpose of obtaining a review and retrial”.

Execution Of Decree
The expression ‘execution' means enforcement or implementation of the order or
judgment passed by the Court. A Decree means an operation or conclusiveness of a
judgment and the execution of a Decree is complete when the decree-holder gets
satisfied as to its enforcement against the judgment-debtor i.e. receiving of the
awarded amount or property, as the case may be. It is the medium by which a
decree-holder compels the judgment-debtor to carry out the mandate of the Decree.
To take the benefit of a decree, execution proceedings - an Application under Order
XXI of the Code of Civil Procedure, 1908 (CPC) have to be filed before the
appropriate court/authority within 12 years from the date of Decree.

Different types of Decrees include Preliminary Decree, Final Decree, Partly

Preliminary and Partly final, Consent Decree, Ex-parte Decree, Decree passed in
appeal, Decree on a compromise petition, and Conditional Decree - Decree with
inbuilt conditions forming part of the Decree. The general rule as laid down under
Section 38 of CPC is that ‘the Decree may be executed either by the court which
passed it or by the court to which it is sent for execution. The words ‘Court which
passed the Decree' includes courts which passed the Decree (court of the first
instance) and courts of the first instance in appellate Decree. The executing court
cannot question the validity of a Decree or entertain an objection as to the legality or
otherwise of the Decree. It must take the Decree as it stands and executes it
according to its terms. The executing court must abide by the directions contained in
the Decree.

Format
IN THE COURT OF ____________________________________

_________________________________________Decree Holder

VS

_________________________________________Judgment
Debtor

Dated_____________

The Decree Holder prays for execution of the Decree/Order, the

particulars whereof are stated in the columns hereunder.
1. No of Suit
2. Name of Parties
Date of Decree/order of which
3.
execution is sought
Whether an appeal was filed against
4.
the decree / order under execution
Whether any payment has been
5. received towards satisfaction of
decree-order
Whether any application was made
6. previous to this and if so their dates
and results
Amount of suit alongwith interest as
7. per decree or any other relief
granted by the decree
8. Amount of costs if allowed by Court
9. Against whom execution is sought
10 In what manner court's assistance
. is sought

The Decree Holder Humbly Prays that:

Decree Holder

Verification:
I, ________________________ do hereby verify that the contents
of this application are true to my knowledge or belief.

Delhi.
Dated

Signature of Decree Holder

Through
Advocate
Revision under Code of Civil
Procedure, 1908
Meaning
Revision means to go through something carefully, thoroughly and diligently.
Cases can be revised by the High Court as it possesses revisional jurisdiction
as defined under Section 115 of the Code of Civil Procedure. The High Court
has the right to revise cases decided by subordinate courts to ensure delivery
of justice and maintenance of fairness.

The High Court can revise any case by a subordinate court in which no
appeal lies when:

1. The subordinate court has exercised jurisdiction not vested in it by

law.
2. The subordinate court has failed to exercise jurisdiction vested in it
by law.
3. The subordinate court exercises its jurisdiction illegally or with
material irregularity or in breach of some provision of the law or by
committing some errors of procedure in the course of the trial which
may have affected the ultimate decision.

Format

IN THE HIGH COURT OF MADRAS

CIVIL APPELLATE JURISDICTION

 CIVIL REVISION NO.333 OF 2020

Name……………………………………………………………..Petitioner (Plaintiff/Defendant)

Versus

Name……………………………………………………………..Respondent (Plaintiff/Defendant)

REVISION PETITION UNDER SECTION 115 OF THE CIVIL PROCEDURE

CODE, 1908 CHALLENGING THE ORDER PASSED ON _____IN THE
CASE NO._____.

The Petitioner MOST RESPECTFULLY SHOWETH:

1. That, the instant Revision Petition is filed by the Petitioner under Section
115 of the Code of Civil Procedure (CPC), 1908 being aggrieved by the Order
dated _______ passed by the Ld. Civil Judge, ______________, New Delhi
in Civil Suit No. ________of 2019 seeking to set aside the same. The
certified copy of the impugned order is annexed hereto and marked
as Annexure A1.

2. The Petitioner seeks the intervention of the Hon’ble Court as the

subordinate court had refused to summon two important witnesses who were
determinant to the case. Without the court intervention, and thereby issuing
an Order of Summons, there is no way that they would appear and answer
on Oath. The non-appearance of the witness would lead to grave injury
caused to the Petitioner. Thus, this petition to direct the Subordinate Court to
issue summons to the witness and thereby exercise the jurisdiction the court
has.

BRIEF FACTS OF THE CASE

3. The money suit was filed by the Petitioner on __________based on the
contract entered into by the Plaintiff and the Defendant for jointly bidding a
tender floated by the Public Sector Unit (PSU). It was agreed that the sale
proceeds would be distributed equally to the bidders.

4. The parties secured the tender in their favour for Rs.5,00,000 and the
amount was credited to the Defendants account. But, the value of the tender
would least amount to Rs. 10,00,000.

5. The Defendant after receiving the sale proceeds informed the Plaintiff that
he had accepted the tender for Rs. 5,00,000. When the Plaintiff enquired
the Defendant as to why such low amounts were secured, the Defendant
gave evasive response and never explained why such less amount was
received, when clearly the value of movies is much higher. As per the terms
and conditions of the contract half of the financial proceeds belong to the
Plaintiff.

6. That the trial court framed issues on 19/01/2019 and directed the
Petitioner to produce evidence, upon which the Petitioner promptly furnished
to the court below four witnesses making a request that the witness should
be summoned by that Court.

7. The Plaintiff listed 4 witnesses out of which there are 2 witnesses from the
PSU.

8. The Judge refused to entertain such a request and directed the Plaintiff to
secure the attendance of the 2 PSU witnesses on his own.

9. The Judge, after cross-examining the two other witnesses had passed an
order to close the witness of the Plaintiff (order dated 15/07/2019).

10. Two witness of the petitioner had appeared and their statements were
recorded. However, the learned Presiding Officer of the court below passed
an order that the remaining witnesses be produced by the petitioner-plaintiff
on his own without seeking the assistance of the court. This order was
passed despite a request by the petitioner that at least those witnesses
named in the list who are State employees should be summoned by the
court, as they are required to produce and prove some official records.

GROUNDS:

i. That on the date of hearing the learned trial court by the order
impugned in this revision closed the evidence of the petitioner-
plaintiff on the ground that the remaining witnesses were not
produced by him.
ii. That the impugned order has caused great prejudice to the petitioner
and if the same is allowed to stand the petitioner’s suit is bound to
fail.
iii. The Judge has failed to exercise the powers granted to him under
Order XVI, Rule I of the Civil Procedure Code, 1908.
iv. That the trial court has unjustifiably denied assistance of the court to
the petitioner-plaintiff to secure the attendance of his witnesses.
The interests of justice demand that he is provided with all legal
assistance in this regard.
v. The purpose of summoning the two PSU witnesses has a great impact
on the case. Only on them giving testimony can the rights of the
parties be decided and the justice can be upheld and the real rights
of the parties be decided.
vi. That it is violative of the principles of natural justice and fair trial.

11. The Plaintiff submits that all court fees have been paid.

12. The Plaintiff submits that there is no appeal in the High Court or any
other Court subordinate to it.

PRAYER

In the facts and circumstances discussed above the petitioner prays that this
Hon’ble Court be pleased to

1. Quash and set aside the order under revision.

 2. Direct the court below to provide assistance of the court for
summoning the plaintiff-witnesses.

And pass any such other orders as the court may deem fit and proper in the
light of the given circumstances and thus render justice

Temporary injunction
A temporary injunction, in simple terms, is a remedy provided to counter an
actual threat posed by one party to the other, in terms of damaging the
property or harming the party in person. There are certain grounds on the
merits of which an application is judged and it is decided if the injunction
should be provided or not. The Rules mentioned under Order 39 lay down
procedures for the courts to follow in order to grant this relief to a party to
the suit .

Sample Application
Here is a specimen depicting how an application structure should be framed
based on the facts of the case:

IN THE COURT OF(place eg Dwarka District Court) THE CIVIL JUDGE(Name

of the judge)

Civil Suit No. /20____

…Plaintiff

Vs.

…Defendants
An application for an interim injunction under Order XXXIX Rule 1 and 2 of
the Civil Procedure Code

1. The Plaintiff has filed the suit for (mention the purpose for eg
recovery of possession of the disputed property).
2. That the disputed property (Proper description of the suit property
with facts ascertaining unquestionable legal authority of the
plaintiff) has been unlawfully kept out of the possession of the
plaintiff (or any other reason as per the case).
3. Start with the chain of events that has led to the filing of the
present suit. (This should be divided into subsequent sub paras to
enable a clear understanding of the events).
4. Mention the fact that the chain of events establish a prima facie
case and further investigation or action is needed.
5. A reason that clearly states the balance of favour in plaintiff’s side
eg. The disputed property is the only means of income that the
plaintiff’s family earns income from and dispossession would lead to
unparallel hardships.
6. Irreparable damage will be caused which wouldn’t be compensated
in monetary terms. (The reason might include mental trauma and
emotional hurt).
7. PRAYER: The plaintiff, therefore, prays that your Honour finds it fit
to deliver a show-cause notice to the opposite party putting forward
the reasons why the injunction shouldn’t be granted. Pending
hearing of such injunction petition, it is prayed that an interim
injunction order is passed to restrain the defendants from causing
any harm to the disputed property.

PLAINTIFF(Signature):

PLACE:

DATE:

ADVOCATE FOR PLAINTIFF:

SCHEDULE

Attach a Schedule including all the documents containing the documents

related to the property and to substantiate other facts mentioned in the
application.

AFFIDAVIT

An affidavit is an oath of truthfulness for the facts that have been mentioned
in the plaint in a written form. No penal action arises in case of non-inclusion
of a fact that wasn’t a part of the plaintiff’s knowledge.

Meaning and Concept of Special Leave Petition (SLP)

Special Leave Petition (SLP) holds a chief place in the Judiciary of India.
Supreme Court has been provided a residual power that is to be exercised only
in cases where arises a substantial question of law or gross injustice has been
done.

Under this, the aggrieved party is provided a special permission to be heard in

Apex Court in appeal against the order or judgment of any court or tribunal in
the territory of India. This is not an appeal but a petition filed for an appeal.
After the filing of SLP, the Supreme Court may hear the matter and if it deems
fit may grant ‘leave’ and that petition will be converted to appeal. After
that SLP shall become an appeal and the court may hear the matter and
accordingly pass judgment.

Provision for Special Leave Petition (SLP) under Constitution of India

136. Special leave to appeal by the Supreme Court
Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
Nothing in clause (1) shall apply to any judgment, determination, and sentence
or order passed or made by any court or tribunal constituted by or under any
law relating to the Armed Forces.
Article 136 of the Indian Constitution gives power to Supreme Court to grant
special permission or leave to the aggrieved party to appeal against the order
or judgment passed by any court or any tribunal.

Time limit to file SLP

It can be filed against any judgment of High Court within 90 days from the date
of judgment or
It can be filed within 60 days against the order of High Court refusing to grant
the certificate of fitness for appeal to Supreme Court.

Draft a writ petition